“Ms Andrea, please explain to the Court how being homosexual substantially limits one or more major life activities.”
“Your case to the Court is a discrimination case, claiming the defendant made homophobic remarks. Please describe to the court how homosexual you are.”
“I … what, no. I never said I’m a lesbian, or bisexual, or even heterosexual. I’ve never made any kind of formal statement about my sexual orientation. This isn’t about whether or not I’m gay. This is about the slurs, threats, and homophobic remarks at school. It’s about sexual harassment.”
“Ms Andrea, do not waste the Court’s time. You cannot make a case for discrimination unless you can prove that you are a member of a group that has been discriminated against. Now please explain to the court how being homosexual substantially limits one or more major life activities.”
This is satire, of the dark sort. I have never really filed a court complaint. My actual time in a court process is limited to paying a minor speeding ticket (lesson learned: cruise control is a good thing).
I have been at that ugly social place (repeatedly so) where complaining about homophobic remarks simply sets one up for further sexual harassment, because everyone assumes that complaining about such means that you are gay, and that because you’re gay you “deserve” whatever abuse happens.
The point to this bit of theatre of the absurd is that a person need not be a particular sort of person to have been harassed or discriminated against. You don’t have to be gay, lesbian, bisexual et cetera to have been the target of homophobia.
Lots of people like to pretend this isn’t true. Bad Things only happens to those vague strangers, the Other Kinds, and of course they just get what’s coming to them because they “asked for it” by being queer. You know, just like women who were raped were just asking for it because they were dressed too provocatively, or because they were invading male territories at workplaces and so on. Or because a woman wasn’t dressed feminine enough, she must be a dyke and therefore she was just asking for homophobic violence and/or rape … UGH. (agitated flapping moment here)
But in another cruel twist of fate (this is off-stage, as real life is often far crueler and stranger than theatre), one does have to be disabled before they can be discriminated against as a disabled person. Well, at least as far as the U.S. courts are concerned.
Not only that, but you had to be really disabled. Not just disabled, but Disabled-with-a-capital-D. If you have something that’s well-controlled by medication like epilepsy or migraines, or if you have something that makes like difficult (like dyslexia or autism) but you more-or-less kinda scrape by, or if you have something like a prosthetic arm or some other visible physical disability that you’ve learned to work around, those don’t count.
You’re not Disabled unless it’s a serious, everyday problem. Nevermind that millions of people out there learn how to adjust, cope, and otherwise deal with the things they need to do in life*. When the original ADA (Americans with Disabilities Act of 1990) was drafted, Congress used the definition of disability that reflected severe, uncompensated, unaccommodated impairment, “a physical or mental impairment that substantially limits a major life activity”. So therefore, if you’re not really Disabled, then you’re not really being discriminated against in job applications, or employee reviews, or by your coworkers, or at school, or when you’re trying to get an apartment or a house, or buy a car, or just go get some damn groceries or eat at the freaking local pizza parlour. Because shockingly, given the opportunity, disabled people go out and do ordinary things like get jobs to earn incomes to pay the rent and buy groceries and dinner.
This presents some “Catch-22” issues, because if your disability “substantially limits a major life activity” then that major life activity might be working, which raises some concerns about whether a company is discriminating against you if they choose to not hire or promote you because of your disability. You could be considered “too disabled” to do the job, but “not disabled enough” (dare I say, “too high-functioning”?) to qualify under the ADA. Of course, in the rational world, disabled people apply for jobs that they can do, given sensible accommodations. (Gimme a “Duh!”)
So do “normal” people. Normal people apply for jobs that they can do, given sensible accommodations. Only their accommodations are also “normal”, so they aren’t seen as being such. Because you know, normal people need to see what they’re doing, so they need to have lighting made available to them everywhere. And normal people need caffeinated beverages to help them compensate for their hypoactivity, so they’re supplied with coffee and tea and colas at work. And normal people are extroverts who need structured social activities to fill their free time, because they don’t become self-absorbed in their special interests. You get the point.
So despite the original intentions of the ADA, one of the things that ended up happening as things wound through the court systems, was that first people had to “prove” they were sufficiently disabled to be covered, as well as proving that they had been discriminated against. Meanwhile, the ADA office became immediately backlogged with situations to deal with, a lot of nonsense about “horribly costly accommodations” was flung about in the press and in courtrooms, and a distressing number of businesses went about business-as-inaccessibly-normal until they were forced to do otherwise. In review, the problematic areas turned into spectacular examples of bureaucracy over common sense and compassion. Plus, it’s the people who have disabilities, those differences in mind and/or body that need to be accommodated, who are left having to prove that they need accommodation and that they were discriminated against. Which all creates just so much more extra work in lives that are frequently full of more difficult or roundabout tasks already.
What a mess.
So, 17 years later, we now have rumbling through the House and Senate, the ADA Restoration Act of 2007. In surprisingly clear language, some of the reasons for the bill are described as:
(5) the broad conception of the definition had been underscored by the Supreme Court’s statement in its decision in School Board of Nassau County v. Arline, 480 U.S. 273, 284 (1987), that the section 504 definition `acknowledged that society’s accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment’;
- (6) in adopting the section 504 concept of disability in the ADA, Congress understood that adverse action based on a person’s physical or mental impairment is often unrelated to the limitations caused by the impairment itself;
- (7) instead of following congressional expectations that disability would be interpreted broadly in the ADA, the Supreme Court has ruled, in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 197 (2002), that the elements of the definition ‘need to be interpreted strictly to create a demanding standard for qualifying as disabled,’ and, consistent with that view, has narrowed the application of the definition in various ways; and
The definition of disability also gets changed:
- (A) IN GENERAL- The term ‘disability’ means, with respect to an individual–
(i) a physical or mental impairment;
(ii) a record of a physical or mental impairment; or
(iii) being regarded as having a physical or mental impairment.
(B) RULE OF CONSTRUCTION-
(i) The determination of whether an individual has a physical or mental impairment shall be made without considering the impact of any mitigating measures the individual may or may not be using or whether or not any manifestations of an impairment are episodic, in remission, or latent.
(ii) The term ‘mitigating measures’ means any treatment, medication, device, or other measure used to eliminate, mitigate, or compensate for the effect of an impairment, and includes prescription and other medications, personal aids and devices (including assistive technology devices and services), reasonable accommodations, or auxiliary aids and services.
(iii) Actions taken by a covered entity with respect to an individual because of that individual’s use of a mitigating measure or because of a side effect or other consequence of the use of such a measure shall be considered actions taken on the basis of a disability under this Act.’.
Note that a person won’t have to prove that the impairment is severe. It’s still a disability even if you can compensate for it most of the time. (Because as we all know — the reason why we have to compensate for things because they would be or are disabling in some way or another.) Nor does a person actually have be necessarily disabled, just “regarded” as such. Because let’s face it; discrimination is neither rational nor sensible — people are discriminated against for totally spurious reasons. (“I’m not hiring him — he just looks like some kind of re-tard weirdo.”)
We might call this Act “mitigating measures” for the severe impairments in justice left unaddressed by the ADA. Let’s hope it works.
(Hat-tip to andreashettle at ReunifyGally for alerting me to this topic!)
* This is why disability “simulations” are lousy teaching tools — the people who actually have these impairments generally know how to deal with them, unlike the people stumbling around blindfolded or whatever, who only learn to experience temporary disability as freakish, and are both relieved and full of pity when the exercise is over.