Mitigating measures

“Ms Andrea, please explain to the Court how being homosexual substantially limits one or more major life activities.”

“What?”

“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.

9 Comments

  1. DwayneBrooks said,

    4 August 2008 at 8:40

    good job,

  2. Gary Roberts said,

    24 October 2007 at 23:34

    i wroked for a state agency for twenty one years . I filled an EEOC complaint for failurer to make reasonable accomdations for my disabiltiy. I am deaf and at the time I applied a new superviros came on who was directing pressuer on me to move out. He was uncomfortable saying that as a deaf person i should be working with other deaf and not using an Interpreter to work with a general population.
    I had these years of excellent work evaluation and was one of th emost productive employees of the agency,. This was an agency whose mission was to serve people with disablties. I was forced into a corner by retatlatory actions of the agency brought against me as punishment for my complaint.
    During the time my complaint was with EEOC i feed them clear documentation of harrasment and retatlation against me by my employee. They did not act to protect me as the law indicates they are susposed to do.
    I was forced to leave employment but continued to prusue my complaints out side the agecny. I expernced abuse and critcism from EEOC while my cimplaint was lodged with them. I became my own invstigator.
    The final result was that i got an opinion in my favour from EEOC but they at the same time brought pressure on me to settle the complaint. They indicated i had a weak complaint and they would never forward iit to Dept of justice for consideration of suit.
    I ended up settling the complaint for a small monetary reward and the agency was given a slap on the wrist by EEOC. The state retired me on disabiltiy and i applied for and received SS disabiltiy. I was deaf when the agency hired me and it is intersting that the state found me to be disabled and gave me disabiltiy beneifts as a state employee.
    I have a masters degree and worked twenty six years out of graduate school and am now disabled again. Though i despise the term i have become a victim of the system.
    This print is very small and i have low visual skills and am limited in edting so excuse the many errors.

  3. 27 August 2007 at 14:50

    Andrea,
    You’re doing just fine knowledgability wise. While passage of the ADA in the 1990s was hugely inportant for gaining equal access to all aspects of society for people with disabilities, the public splash it made that resulted in increased litigation had a negative flip side. Conservative courts and sometimes bad facts in borderline cases resulted in narrowing the defintion of disability. Cases that I was successful in back in the late 1970s and through the 1980s under the Rehabilitation Act of 1973 might not be successful today under the narrowed ADA definiton of disability. But Congress can fix that through the ADA Restoration Act.

  4. qw88nb88 said,

    24 August 2007 at 20:43

    Thank you Randy, glad to get feedback from someone more knowledgeable than I on the legal end of things.

  5. 24 August 2007 at 17:49

    This is great insightful commentary. I’ve practiced civil rights disability law for 30 years and in some ways the law was better under Section 504 and pre the ADA before some courts narrowed the definition of disability.

  6. 24 August 2007 at 10:45

    […] Note that this special population not only has special needs that must be accommodated, but they are also a vociferous and sometimes petulant lot if those special needs are not met. Your legal adviser or Human Resources coördinator can consult with you about compliance issues and the ADA, DDA, or other local laws concerning accessibility and discrimination. (This is a spin-off from another post, “Mitigating measures”.) […]

  7. 24 August 2007 at 3:23

    great post, i’m glad you wrote about ADA restoration. it’s so needed, things are getting ridiculous.

  8. 23 August 2007 at 12:24

    Mitigating measures, indeed. It’s about time.

    Even under the current law, there is some protection for people who are regarded as having a disability but do not meet the strict definition of disability (those who are discriminated against because they’re HIV positive, for instance). But it doesn’t go nearly far enough.

    Maybe the psychs who write the DSM will take a lesson from our wise legislators and re-think the part of their autism definition that says you can only be autistic if you have significant problems in daily life…

  9. 23 August 2007 at 11:40

    […] a few hours ago, a blogger who shares my first name “Andrea” posted Mitigating Measures over at “Andrea’s Buzzing About.” Her post leads with a satire of what might […]


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