Dr Malcolm AbelPresented at SEALSB Miami 2009
Congress concluded in 1990 that "individuals with disabilities
are a discrete and insular minority who have been faced with restrictions
and limitations, subjected to a history of purposeful unequal treatment,
and relegated to a position of political powerlessness in our society,
based on characteristics that are beyond the control of such individuals
and resulting from stereotypic assumptions not truly indicative of the
individual ability of such individuals to participate in, and contribute
to, society." As a result, it passed the Americans with Disabilities
Act, heralded as comprehensive reform measure designed to champion the
rights of disabled Americans, and to insure a more level playing field.
However, at least with respect to its employment provisions, it soon became
clear that plaintiffs had a difficult time succeeding in lawsuits against
their employers, with less than ten percent of plaintiffs prevailing in
litigation. Courts interpreted key terms of the statute narrowly,
frustrating its goals of integration and equality. This paper first will
discuss the provisions of the 1990 legislation and the Supreme Court decisions
that narrowed its coverage. It then will outline the provisions of legislation
Congress passed in 2008 to reverse that trend, and to restore the rights
envisioned in 1990 for disabled workers.
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