Thanks to Top Court, the Disabled Can Look to States for Redress

Charles L. Lindner is past president of the Los Angeles Criminal Bar Assn

The Supreme Court, in Murphy vs. United Postal Service, effectively rewrote the Americans With Disabilities Act (ADA) to eliminate many of the people it was intended to protect. A majority of the justices decided that if medical science can control a person's diabetes or lower his or her blood pressure to within normal limits, that person is not disabled. Under this interpretation of the law, the court will consider a person's corrected condition to determine if he or she is disabled. As a consequence, disabled workers may no longer be protected from arbitrary termination, harassment, retaliation and unfavorable job assignments.

Who, then, is truly disabled? Is it the veteran cop who takes medicine to control his job-related hypertension? Under the court's latest ruling, the cop can be fired, even if his blood pressure is under control when medicated.

When Congress passed the disabilities act in 1990, its purpose was "to invoke the sweep of congressional authority, including the power to enforce the 14th Amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities." The bill passed the House 337-28, the Senate 91-6 and was signed by a conservative Republican president.

What legal flaw did a majority of justices detect that eluded so many legislators and a president? The real agenda of the court's majority, as stated in a dissenting opinion, was to avoid the "floodgates of litigation" that employers predicted would follow a pro-disabled ruling.

Enforcing new civil-rights laws is a hassle until enough case law develops so that everybody can understand the new rules. The "floodgates" argument was first raised against civil-rights legislation during the 1960s; it was revived to counter the women's movement in the 1970s and 1980s. Two weeks ago, it was used to redefine disability.

But because the Supreme Court's ruling on the disabilities act did not involve a constitutional question, merely one of interpreting a congressional statute, Congress can fix the statute and effectively invalidate the court's opinion. Unfortunately, that may be asking too much of this Congress.

Yet, the court, perhaps unwittingly, provided the disabled with a new avenue of redress. In Maine vs. Alden, it said that the Union is composed of sovereign states. Under the 10th Amendment (not at issue in Alden), each state supreme court is the final arbiter and interpreter of its own laws, and the U.S. Supreme Court has no power to reverse these courts unless the U.S. Constitution is violated or a state law conflicts with a preempting federal law or treaty. Accordingly, states may grant their citizens greater constitutional protections than those provided under the U.S. Constitution or federal law.

Article I, Section 24, of the California Constitution explicitly declares: "Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution." Thus, while homosexuals are not a protected class under the U.S. Constitution, as far back as 1979, in Gay Law Students vs. Pacific Telephone, the California Supreme Court held homosexuals to be a protected class under the state constitution.

In 1993, the Legislature added the following to California's civil-rights laws: "A violation of the right of any individual under the Americans with Disabilities Act of 1990 shall also constitute a violation of this section." Put another way, the Legislature, in one sentence, made the Americans With Disabilities Act part of California law. As a result, it or the state Supreme Court may interpret California's "mini-ADA" in a manner that protects the millions of disabled Californians whom the U.S. Supreme Court cut from the ranks of the legally disabled.

Specifically, the Legislature may declare that a worker in California qualifies for protection under the Unruh Civil Rights Act and Fair Employment and Housing Act if he or she "has a physical or mental impairment that substantially limits one or more of the major life activities without regard to mitigation that has resulted from rehabilitation, self-improvement, prosthetic devices or medication."

Moreover, this would be a civil-rights protection without much of an economic downside for employers. Every company employing more than 50 workers has spent the last nine years learning how to comply with the disabilities act and the last seven years implementing the law's Equal Employment Opportunity Commission regulations. Companies thus would not have to gear up a new human-resources bureaucracy, because that bureaucracy is already hired, trained and in place. Few legal observers expected such a sweeping antidisabled ruling from the Supreme Court, and many employers will, at least momentarily, hesitate before returning to the bad old days of disability discrimination in the "last hired, first fired" tradition.

By reasserting the broad protections that Congress intended, California would do nothing more than return the law to the status quo ante. It's reasonable to expect that few businesses would seriously think of leaving a state booming economically, one that generates a trillion dollars and is the world's seventh-largest economy, or leaving a customer base of 33 million Californians. Also, considering that 10 of the 11 federal circuit courts that had considered the question "Who is disabled under the ADA?" found their broad views reversed by the Supreme Court two weeks ago, savvy CEOs will wait until after the presidential election and the seating of a new Congress before undertaking negative initiatives on employing the disabled.

It's regrettable that the Supreme Court, in effect, chose to clear the federal litigation docket at the expense of the nation's disabled but still productive workers. Its disabilities decisions will likely go down as yet another of those moments when, faced with an obvious moral imperative, the Supreme Court ducked.

If the state Legislature reinstates the lost ADA protections under state law, Congress may have no choice but to follow. California is just too big to ignore. The state will gain five congressional seats after the next Census. Republicans have a six-seat majority in the current House of Representatives. The GOP cannot retain congressional control by ignoring older workers who fear being fired at the first sign of poor health. Older workers vote.*

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