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TITLE:The National Disability Policy: A Progress Report, December 2001 - December 2002-Civil Rights
Author: National Council on Disability, http://www.ncd.gov (KACW 9/4/03)
Kathy’s Note: The National Council on Disability’s progress report is a 125 page document, covering a variety of issues, such as Civil Rights, Education, Health Care, Long-Term Services and Supports, Youth, Employment, Welfare Reform, Housing, Assistive Technology and Telecommunications, Transportation, and International Issues and Homeland Security. After much thought, I have decided to prepare a report on the broad issues and prepare a report on each of the above issues.
Successes:

The Supreme Court in Atkins vs. Virginia ruled that executions of persons with cognitive disabilities found guilty of a crime are "cruel and unusual punishments" prohibited by the Eighth Amendment, and it was "not persuaded that the execution of mentally retarded criminals will measurably advance the deterrent or the retributive purpose of the death penalty."
A Federal District Court in Georgia held that a Web site of a public transit agency must be accessible to users with disabilities.

Discouraging Developments: In 2002, the Supreme Court made several anti-ability rights, including;

Barring the award of punitive damages in cases brought under Title II of ADA (or under Section 504 of the Rehabilitation Act);
Holding that reassignment of workers or other reasonable accommodations are not required when their provision would violate an established seniority system, even a system unilaterally implemented by an employer without collective bargaining; and
In Toyota v. Williams, the Court ruled that the company had not violated the law by refusing to accommodate a worker with severe carpal tunnel syndrome. Williams was not considered a person with a disability within the meaning of the law, because she could perform many routine housework tasks at home. This meant she was not "substantially limited" in the major life activity of working. It appears that the Court will look to the impact of the impairment in the workplace in resolving some ADA employment cases but will look to different impacts in deciding other cases.
In Echazabal v. Chevron, the Supreme Court held that a company could deny a position to an employee if the position risks the employee’s health supporting the expansion of the standard contained in Equal Employment Opportunity Commission regulations. Moreover, the Court held that the employer did not need to give credence to either the views of the job seeker’s physician or the informed consent of the worker.
A Florida District Court decision held that Title III (public accommodation) of the ADA does not extend to an airline’s Web site.

Hate Crimes: Although all vulnerable groups face heightened risks and unique forms of victimization, some of the threats specific to people with disabilities have received far less attention. In the cases of people with disabilities who do not dare report physical abuse or economic exploitation by caregivers, women with disabilities who remain in abusive relationships longer than abused women without disabilities, or victims of street crimes whose assailants are charged with less serious offenses because of prosecutors’ perceptions of difficulties associated with winning a conviction, the likelihood, severity or duration of their victimization is determined by disability.
Genetic Discrimination: Mapping of the human genome has been completed in the last year and there has been an increase on reliance of genetic information. Studies document how fear of genetic discrimination lead many people to forego medical testing or even necessary treatment. Barely a week goes by without media accounts of research findings linking one or another disease or disease predisposition to a particular gene, missing or duplicated chromosome, or other genetic marker. While this research has not yet resulted in major successful interventions in the clinical course of any condition or disease, new genetic tests continue. The build-up of data purporting to link genes and health provides increasing rationalization for those who would use putative science to engage in what is known as "adverse selection" (that is, screening people out of insurance or employment on health-risk grounds). Moreover, since genetic information can often be obtained as a byproduct of other permissible tests, many people may be victims of genetic discrimination without ever knowing it. In Echazbal v. Chevron, the Supreme Court held that the ADA did not prohibit genetic discrimination. Echazabal involved an individual with a long-standing liver condition seeking a job that would expose him to potential liver toxins, which in the view of the company would pose a "direct threat" to his health. Nothing in the Court’s decision suggests the outcome would be different if the employer’s decision were based on the perceived interaction between a genetic predisposition and environmental hazards. From the law’s standpoint, there now seems to be little to distinguish a latent from a chronic condition. The argument is if insurers and employers were prevented from using genetic information in their decisions about who to insure or employ, the costs of insurance and of doing business would increase. There is no empirical research confirming these predictions, especially in light of the arguably greater costs to society, even to health insurers and employers, of people’s foregoing diagnosis or delaying treatment. NCD has urged the enactment of strong genetic antidiscrimination legislation ensuring that DNA would not become destiny in matters of employment, insurance or health care. Regrettably, little progress has been made in this regard during the past year. Meanwhile, developments have occurred making such legislation all the more urgent and pressing.
Voting Rights: The Help America Vote Act of 2002 authorizes funding to assist states in creating accessible polling places and requires installation of at least one accessible voting machine in each precinct. For the first time many voters with disabilities look forward to casting their ballots independently and in private. DOJ can seek injunctive relief to stop its violation, and the potential does exist for criminal prosecution for those who conspire to deprive Americans of their vote, but no federal entity has rule-making authority of the kind and nothing in the law defines compliance in respect to various key provisions. Also there is a concern that because of the discretionary funding formula, funds authorized for disability access in the states may prove insufficient or prove unavailable, particularly in larger states, poor states or those hard-hit by the economic downturn.
Section 504: There is an increasing concern about the erosion of consciousness and enforcement surrounding Section 504. As evidenced in court decisions limiting availability of damages to victorious civil rights plaintiffs, the failure of Administration plans to feature many, if any, references to Section 504, and the use of new funding approaches that may narrow the extent to which federally sponsored activities are covered by Section 504, serious concern exists regarding the continued vitality of this historic and effective law.
Recommendations:

The Administration recommit itself to the appropriate use of civil rights enforcement as one technique among those it will use to bring our commitment to equality to fruition.
OMB clarifies its views regarding the applicability of pre-adoption regulatory-burden analyses to civil rights legislation, and to make clear that the defenses available to private entities under ADA should in most circumstances provide ample protection against excessive or burdensome demands.
Congress adopt legislation extending federal hate crimes protection to a number of groups, including persons with disabilities.
Congress recognize the growing importance of this issue and act to curb the discriminatory use of genetic information in insurance and employment.
The Administration undertake research during and after the 2004 election campaign aimed at determining whether or not significant numbers of voters with disabilities who might not otherwise have been able to vote were facilitated in doing so by the law, and whether or not significant numbers of persons with disabilities who could not previously do so were enabled to exercise the right of a secret ballot.
DOJ publicly affirm its commitment to the principles and the use of Section 504 as an important instrument for ensuring full access and civil rights for all citizens.
The Administration revitalize and empower the Interagency Disability Coordinating Council as a major vehicle for the coordination of Section 504 policy and implementation among the numerous federal agencies that must be engaged if the law is to achieve its full potential.

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