Disability Discrimination

Approximately 43 million people in the United States are physically or mentally disabled. Like individuals of various races, religions, genders, and national origins, individuals with physical or mental limitations historically have faced discrimination in the forms of exclusion from mainstream society; intentional and unintentional SEGREGATION; unequal or inferior services, benefits, or activities; and screening criteria that do not correlate with actual ability. Legal commentators have noted that the discrimination against DISABLED PERSONS differs from other forms of discrimination in that a rational basis for treating members of other excluded groups differently rarely exists, whereas a person's disability might hinder his or her abilities and might provide a rational basis for different treatment. Thus, the mere fact that an individual with a disability is treated differently is insufficient for a finding of illegal discrimination.

Another frequently noted difference between discrimination based on disability and discrimination based on race, color, religion, gender, and national origin is the attitude behind the discrimination. For example, discrimination based on race tends to be rooted in hostility toward a different race. On the other hand, discrimination based on disability is often caused by discomfort and pity, or misguided compassion that materializes as paternalistic and patronizing behavior. Other times, discrimination against disabled persons is the result of "benign neglect" and is "primarily the result of apathetic attitudes rather than affirmative animus" (Alexander v. Choate, 469 U.S. 287, 105 S. Ct. 712, 83 L. Ed. 2d 661 [1985]). For example, a restaurant owner who fails to provide a wheelchair ramp to the restaurant's entrance is more likely to be guilty of failing to consider the needs of patrons than of expressing a specific dislike of wheelchair users.

Whatever its roots, discrimination impedes those with disabilities from obtaining jobs that they are qualified to perform; access to some buildings and modes of transportation; and the independence and dignity that nondisabled people take for granted. The U.S. Constitution provides little relief. Courts have held that mentally and physically disabled persons do not fall within a suspect or quasi-suspect class (i.e., classes subjected to a history of purposeful unequal treatment or political powerlessness). This means that under the Constitution's EQUAL PROTECTION CLAUSE, courts review government action affecting disabled people without the heightened or STRICT SCRUTINY afforded suspect or quasi-suspect classes formed by race or religion.

This lack of distinct constitutional protection has resulted in legislative action. Following a concerted LOBBYING effort by and on behalf of individuals with disabilities, Congress in the late 1960s and early 1970s passed the first federal laws designed to protect disabled persons. Lobbying continued when these laws proved to be inadequate owing to their limited coverage. Then, in 1990, Congress passed the much-heralded Americans with Disabilities Act (ADA) (42 U.S.C.A. §§ 12101–12213), legislation with a much broader application and a fair amount of controversy over the relative cost of its effectiveness.