Gale Encyclopedia Of American Law 3Rd Edition Volume 3 P47 pdf

the result of “benign neglect” and is “primarily
the result of apathetic attitudes rather than af-
firmative 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 indepen-
dence and dignity that nondisabled peopl e take for
granted. The U.S. Constitution provides little
relief. Courts have held that mentally and phy-
sically d isabled persons do not f all within a suspect
or qua si-s uspect class ( i.e., classes s ubjecte d to a
history of purposeful unequal treatment or politi-
cal p owerlessness). Thus, 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 o r religion.
This lack of distinct constitutional protec-
tion 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. Lob-

bying 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 contro-
versy over the relative cost of its effectiveness.
Rehabilitation Act of 1973
The Rehabilitation Act of 1973 (19 U.S.C.A. §§
791, 793, 794) prohibits disability discrimina-
tion by federal agencies, federal contractors, and
other recipients of federal financial assistance.
Types of prohibited discrimination include
employment, education, building accessibility,
and health, welfare, and social services. Courts
have held that private individuals may file actions
under the Rehabilitation Act against federal
employers or against recipients of federal finan-
cial assistance; the action need not be brought by
a government entity. A
PLAINTIFF who proves that
a federal employer discriminated intentionally in
violation of the Rehabilitation Act may receive
compensatory and
PUNITIVE DAMAGES.
What constitutes a disability under the Re-
habilitation Act is often the source of controversy.
Blindness, deafness, diabetes, cardiac problems,
mobility impairments, and chronic fatigue syn-
drome have been recognized as physical impair-

ments. The U.S. Supreme Court has held that
tuberculosis, a contagious disease, is a physical
impairment (School Board v. Arline, 480 U.S.
273, 107 S. Ct. 1123, 94 L. Ed. 2d 307 [1987]).
Numerous courts have followed the logic in
Arline in holding that individuals who have AIDS
or who have tested positive for HIV, the virus
that causes AIDS, are physically impaired. Courts
also have held that alcoholism, anxiety panic
disorder, and post-traumatic stress disorder are
impairments under the Rehabilitation Act.
Prior to the enac tment of the Americ ans wit h
Disabilities Act, section 504 of the Rehabilitation
Act was the principal fede ral prohibition of
discrimination on the basis of disability. Even with
the ADA, t he Reha bilitation Act r emains a n
important protection for those with disabilities.
The ADA expressly excludes from its coverage
protection against discrimina tory acts by t he federal
government, so t he Rehabilitation Act provides the
only private CA USE OF ACTION for disability discrimi-
nation by federal employers and agencies. The
Rehabilitation Act also remains an alternative
means of remedying discrimination even when a
plaintiff concurrently invokes ADA protection.
Individuals with Disabilities
Education Act
The Individuals with Disabilities Education Act
(IDEA) (20 U.S.C.A. §§ 1400–1485) requires
states to provide a free, appropriate public

education to children who are disabled. Formerly
known as the Educatio n of the Handicapped
Act or the Education for All Handicapped
Children Act, the law was established in 1975
in response to studies showing that more than
half of all disabled children were receiving an
inappropriate public education, and about one-
eighth of those children were simply excluded
from public education altogether. More than six
million children had received special education
due to the provisions of IDEA as of 2006.
IDEA requires states seeking federal finan-
cial assistance for education to develop plans
ensuring disabled children a free education that
meets their needs. IDEA covers children ages
three to 21 who have educational disabilities,
in other words, mental retardation; hearing,
speech, or language impairments; visual
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
458 DISABILITY DISCRIMINATION
impairments; serious emotional disturbances;
orthopedic impairments; autism; trau matic
brain injuries; and specific learning disabilities,
and as a result of such conditions require special
education and related services such as trans-
portation to and from school. The act does
not, under normal circumstances, cover a child
who is nearsighted and needs glasses or a child
who walks with a leg brace; many children with
minor disabilities can be educated without

special attention.
Each child covered by IDEA is entitle d to
have an individualized educational program
(IEP) developed jointly by the child’s parents
and school personnel. The IEP describes the
child’s abilities and needs and outlines educa-
tional placement and services that will address
the listed needs. IDEA contains procedural
safeguards designed to ensure that parents can
participate in the IEP process and have methods
of recourse if they disagree with educators ab out
their child’s education.
Finally, IDEA supports the integration
of disabled children by requiring that they re-
ceive their education in the least restrictive
environment. The goal of this requirement is
to keep children with disabilities in regular
public school classrooms to the extent possible.
Only when a satisfactory education cannot be
achieved in regular classes, even with the use
of supplementary aids and services, may a dis-
abled child be removed from regular classes.
In many cases, children with disabilities are
mainstreamed—placed in a regular educational
setting—for part of their school day and re-
moved to a special-needs setting for the other
part. Depending on the disability, children may
be mainstreamed into certain academic classes
or simply during lunch, during study hall, or on
the school bus.

Architectural Barriers Act
The Architectural Barriers Act (ABA) (42 U.S.C.
§§ 4151 – 4157) requires that federally owned,
leased, or financed buildings be accessible to
disabled persons. Originally enacted in 1968, this
law requires each of four federal agencies—the
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,
the
DEPARTMENT OF DEFENSE,theGENERAL SERVICES
ADMINISTRATION
, and the Postal Service—to pro-
mulgate design, construction, and alteration
standards for buildings within its jurisdiction.
The coverage and the effectiveness of the ABA
are limited. The act encompasses the subway
system in Washington, D.C., as well as (1)
structures that the federal government constructs
or alters; (2) structures that the federal govern-
ment leases; and (3) structures that depend on
federal grants or loans for their design, construc-
tion, or alteration. If a federal agency is housed
in a building that was constructed by the federal
government prior to the ABA’s original enact-
ment date in 1968 and that building is not
altered, it need not be accessible to disabled
individuals under the ABA. Further, when
structures covered by the ABA are altered, only
the altered portion need be made accessible.
Thus, an altered wing of a building may have
elevators, wheelchair ramps, and accessible rest

rooms, whereas stairs in front of the building’s
entrance render the building inaccessible to
wheelchair users. Perhaps the most obvious
shortcoming of the ABA’s effectiveness is that it
covers only buildings that are owned, leased, or
financed by the U.S. government. Even after the
ABA’s enactment, individuals with disabilities
remained challenged by the many inaccessible
buildings not covered under it.
The Individuals with Disabilities Education Act requires
that states provide a free and appropriate public education
to children who are disabled.
AP IMAGES
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
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DISABILITY DISCRIMINATION 459
Americans with Disabilities Act
Despite the efforts of Congress, until 1990 no
federal law outlawed most of the disability
discrimination by employers, owners of places
of public accommodation, and program admin-
istrators. During the late 1980s, two-thirds of
employable, working-age, disabled persons in
the United States had no jobs, and many of
those who were employed held a job far below
their actual capabilities. In the United States
in 1990, more than 8 million persons with
disabilities who wanted to work were unable to
find jobs and were forced to live on welfare and
other government subsidies funded by taxpayers.

Disabled individuals faced more obstacles
when it came to transportation. Because dis-
abilities often prevent people from driving cars,
many with disabilities must rely on buses, trains,
and subways. As of 1990, very few public modes
of transportation were accessible to those with
disabilities. That same year, Congress passed
the Americans with Disabilities Act in the hopes
of alleviating day-to-day problems faced by
those with disabilities.
Employment Discrimi nation and the ADA
Titles I and II of the ADA prohibit employers,
employment agencies, labor organizations, and
jointlabor-managementcommittees,inthepri-
vate sector and in state and local governments,
from discriminating on the basis of disability. At
the ADA’s effective date in July 1992, the act
covered private employers with 25 o r more
employees; since July 1994 the act has covered
private employers with 15 or more employees. All
state and local government employers are covered,
regardless of their number of employees.
The
EQUAL EMPLOYMENT OPPORTUNITY COMMIS-
SION
(EEOC) is the federal agency charged with
overseeing the employment-discrimination pro-
visions of the ADA. That agency administers
complaints and enforces the ADA. The act also
provides that its powers, remedies, and proce-

dures may be invoked by the EEOC, the U.S.
attorney general, and any perso n alleging illegal
discrimination pursuant to the ADA or its
underlying regulations. Any party seeking redress
for ADA-prohibited discrimination must ex-
haust certain administrative remedies before
instituting a lawsuit.
The employment discrimination outlawed
by the ADA may take one of several forms
explicitly defined by the act: (1) limiting, segre-
gating, or classifying job applicants or emplo-
yees in a way that adversely affects the status or
opportunities of a disabled individual; (2) entering
into a contract or business arrangement that
has the effect of discriminating against a
disabled individual; (3) implementing adminis-
trative procedures or criteria that have the effect
of discriminating against a disabled individual;
(4) denying a disabled person equal jobs or
benefits; (5) failing to make reasonable accom-
modations to allow those with disabilities to
perform their job in the workplace; (6) using
criteria that screen, or tend to screen, disabled
individuals from the workplace; and (7) admin-
istering employment tests for the purpose, or
partial purpose, of measuring a job applicant’s
disabilities. In determining whether illegal
discrimination has occurred under the ADA, it
is irrelevant that the employer did not intend to
discriminate. But discrimi natory actions are

permissible if they are job related and necessary
for the business and if the required job per-
formance cannot be accomplished with reason-
able accommodation.
Reasonable accommodation can be modifi-
cations or adjustments to the job application
process, to the work environment, or to the
manner or circumstances under which the job is
performed. The ADA does not require an
employer to reasonably accommodate an em-
ployee who does not make his or her disability
known to the employer, and unless it is obvious,
the employer may legally require documented
proof of a disability before accommodating it.
Title II of the
Americans with
Disabilities Act
requires state and
local governments
to ensure that modes
of public
transportation—such
as this Oklahoma
City Metro Transit
bus—are accesible to
those with disabilities.
AP IMAGES
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
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460 DISABILITY DISCRIMINATION

Examples of reasonable accommodation include
making work areas and nonwork areas such as
lunchrooms and restrooms, accessible; modify-
ing work schedules; modifying equipment such
as computers and desks; and providing inter-
preters for blind or deaf workers. An accom-
modation that imposes an undue hardship,
causing the employer significant difficulty or
expense, is not a reasonable accommodation.
An accommodation that fundamentally alters
the business is also not reasonable. For example, a
nightclub would not be forced to provide bright
lighting for a visually impaired employee, because
bright lighting would significantly alter the
nightclub’s business. An employer is not re-
sponsible for providing personal items of ac-
commodation such as eyeglasses, leg braces, and
prostheses, nor is an employer responsible for
accommodating current users of illegal drugs.
The ADA provides some protection for rehabili-
tated drug users and rehabilitated and non-
rehabilitated alcoholics, provided that the
employees do not threaten the employer’sprop-
erty or the health and safety of others in the
workplace. Nevertheless, in Raytheon Co. v.
Hernandez (540 U.S. 44, 124 S. Ct. 513, 157 L. Ed.
2d 357 [2003]), the U.S. Supreme Court con-
cluded that an employer could refuse to rehire a
former drug addict who violated workplace rules.
The ADA does not require employers to

accommodate every individual with a disability.
Only qualified individuals with disabilities—
disabled individuals who can perform, with or
without reasonable accommodation, the job’s
essential functions—are protected from dis-
crimination. Two factors are involved in the
determination of whether a disabled individual
is qualified. First, the employer must determine
whether the individual satisfies the job prerequi-
sites at the time of the hiring decision. This
determination should not be based on specula-
tive fears that the employee will not be able to
function on the job or that the employer’s
insurance premiums will rise. Second, the
employer must determine whether the individual
can perform the job’sessentialfunctionswithor
without reasonable accommodation. The essen-
tial functions of a job are tasks that are fun-
damental as opposed to marginal. Wr itten job
descriptions are frequently considered relevant
evidence of essential functions.
To ensure that employers do not consider
a person’s disability at the time of hiring, the
ADA prohibits employers from inquiring about
disabilities or conducting me dical examinations
of prospective employees before hiring them. It
is illegal to ask questions about medical history,
prior workers’ compensation claims, and over-
all health before a hiring decision is made. The
employer is permitted to inquire about the

applicant’s abilities as they relate to essential or
nonessential job functions—although refusing to
hire an applicant because of his or her inability to
perform a nonessential job function is prohibited.
Upon extending a job offer, the employer
may require the prospective worker to submit
to a medical examination, provided that all
prospective work ers face the same requirement.
In fact, a job offer may be conditioned upon the
results of the examination, and the employer
may
RESCIND the offer if the examination
indicates that the prospective worker would
pose a direct threat to health or safety in the
workplace or that he or she would not be able to
perform the job’s essential functions even with
reasonable accommodation. The ADA does not
consider tests for illegal drugs to be within its
definition of a medical examination; therefore,
before extending a job offer, employers may test
applicants for illegal drugs, but not prescription
drugs or alcohol. An employer may legally test
for HIV only after an employment offer has
been extended. Even then, the employer may
not fire or refuse to hire an individual because
of that person’s HIV status, unless such
discrimination is both related to the job and
necessary for the business.
When an employer violates the ADA, the
AGGRIEVED PARTY usually is entitled only to

equitable relief, such as a court order requiring
the construction of wheelchair ramps or the
provision of voice-activated computers. Only
when the emplo yee shows intentional discrimi-
nation may compensatory or punitive damages
be awarded. Where the dispute involves the
provision of a reasonable accommodation, and
the employer made
GOOD FAITH efforts to make
reasonable accommodation, the court may not
award money damages; it may award only
equitable relief.
Public Accessibility and the ADA Title II of
the ADA requires that state and local govern-
ment programs and activities be accessible to
those with disabilities. Title III of the ADA
applies the same requirement to certain private
entities that own, lease, or operate places of
public accommodation: (1) hotels, motels, and
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
DISABILITY DISCRIMINATION 461
certain other places of lodging; (2) restaurants,
bars, and other establishments that serve food
or drink; (3) theaters, stadiums, concert halls,
and other places of exhibition or entertainment;
(4) auditoriums, convention centers, and lecture
halls; (5) retail or rental establishments such as
grocery stores, bakeries, shopping cen ters, and
hardware stores; (6) self-service laundries, dry
cleaners, banks, hair salons, travel services,

shoe repa ir services, gas stations, law of fices,
accounting offices, pharmacies, doctors’
offices, hospitals, and other service establish-
ments; (7) public transit station s and depots;
(8) museums, libraries, and galleries; (9) parks,
zoos, and other places of recreation; (10)
private schools; (11) daycare centers, homeless
shelters,foodbanks,andother social-service
establishments; and (12) health clubs, gymna-
siums, bowling alleys, g olf courses, and other
places of exercise or recr eation. The ADA does
not limit its coverage to the size of the public
accommodation; if a private e ntity fits into one
of the twelve des criptive categories, it must
comply with the ADA accessibility requirements.
The ADA does exempt from its coverage some
private clubs and religious entities.
When a private entity falls within a class of
public accommodation, it mu st provide reason-
able modifications in its practices, policies, or
procedures, or auxiliary aids and services, for
those with disabilities, unless such modifica-
tions would fundamentally alter the nature of
the entity or would result in an undue burden of
significant difficulty or expense. Title III requires
only that those with disabilities be given equal
opportunities to achieve the same results as
nondisabled individuals. For example, a cloth-
ing store need not print price tags in Braille
so long as a sales clerk is available to read the

price tags to a blind shopper. Auxiliary aids,
such as closed-captioned televisions for hearing-
impaired hotel guests, are required, but this
provision is often flexible. Thus, the owner or
operator of a public accommodation may often
determine the type of auxiliary aid to assist the
disabled individual, provided that the chosen
aid is effective.
Title III also requires the owners and
operators of public accommodation in existing
facilities to remove structural, architectural, and
communication barriers when such removal is
“easily accomplishable and able to be carried
out without mu ch difficulty and expense” (42
U.S.C. § 12181[9]). To determine whether barrier
removal is readily achievable, courts look at
the nature and cost of the action needed; the
number of people employed at the facility and its
financial resources; the action’seffectonthe
facility; and the size, nature, type, and financial
resources of the covered entity. Under Title II,
state and local governments must remove barriers
unless the removal would cause a fundamental
alteration to the program or activity, or unless it
would cause the government entity an undue
financial and administrative burden.
A private individual may enforce the provi-
sions of Title III, as may the U.S. attorney
general. To enforce the provisions of Title II, a
private individual may file an administrative

complaint with the appropriate federal agency
(usually the agency that provides federal fund-
ing to the public entity that is the subject of the
complaint) or the U.S.
DEPARTMENT OF JUSTICE,or
the individual may file a federal lawsuit.
On May 29, 2001, the U.S. Supreme Court
ruled 7–2 that federal disability rights law
entitled professional golfer Casey Martin to
ride a golf cart between shots while competing
in PGA Tour events (PGA Tour, Inc. v.
Martin, 532 U.S. 661, 121 S. Ct. 1879, 149
L. Ed. 2d 904 [2001]). In reaching its decision,
the Court addressed two distinct legal issues,
ruling that the PGA tour is a “public ac-
commodation” subject to ADA requirements
and that under those requirements Martin’s
use of a cart was a “reasonable modification.”
The decision was the first high court case to
interpret the non-discrimination mandate of
Title III of the ADA.
The ADA and Public Perception Many indi-
viduals with disabilities credit the ADA with
helping them to overcome the special challenges
that they face from day to day. From the visually
impaired social worker who is able to take his
licensing test in Braille to the wheelchair user
who is able to park her car just a few yards from
her office’s entrance, the ADA has helped many
disabled people to become fully functioning

members of society. But not everyone heralds
the act, particularly when the price of compli-
ance outweighs the legislation’s effectiveness.
Business owners complain that they have to
make their buildings accessible even when
those buildings are never used by disabled
individuals. Between 1990 and 1995, local
governments within Orange County, Florida,
spent more than $2 million on architectural
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
462 DISABILITY DISCRIMINATION
changes to make buildings accessible. The city
of Winter Park, Florida, spent approximately
$35,000 to make a new tennis facility that
would be accessible to the disabled, yet the
facility’s manager reported that only one
disabled person used the building in the first
year after it opened.
Other critics of the ADA contend that the law
is draining administrative and legal resources.
During the first three years following the effective
date of the ADA’s employment provisions, the
EEOC reported a 25 percent increase in its
workload owing to ADA-related complaints.
About 20 percent of those complaints were
found to be without merit. By the early 1990s,
the act had done little to improve the employ-
ment
RATE for those with disabilities. According
to figures by the National Organization on Dis-

ability, a private group, as of December 1993, 31
percent of working-age disabled people were
employed, whereas in 1986, prior to the ADA’s
enactment, 33 percent were employed. This
number rose gradually throughout the 1990s and
2000s, though. The Census Bureau in 2008
reported that about 46 percent of disable persons
were employed, compared with 84 percent of
persons without disabilities.
Some legal commentators argue that the act
is evolving continually. As courts interpret the
law and Congress refines it, the ADA benefits
will become clearer. Peter David Blanck, a
fellow at the Annenberg Washington Program,
has stated that people with disabilities are not
the only beneficiaries of the ADA. Businesses
have found a new ma rket, and new technology
developed to help those with disabilities often
helps the nondisabled as well.
Restrictions on ADA Application
Defining Disability In Sutton v. United Air-
lines (527 U.S. 471, 119 S. Ct 2139, 144 L.Ed.2d
450 [1999]), the U.S. Supreme Court held that
for the purposes of the Americans with Dis-
abilities Act, whether a person has a disability
is to be determined based on the person’s
condition when that person uses corrective
measures. The case concerned two women w ho
had been denied positions as airline pilots
because they each had extre mely poor vision

when they were not wearing glasses. The Court
held that because the women had perfect vision
when wearing glasses, they were no t disabled
and thus not protected by the ADA. The court
stated that “if a person is taking measures to
correct for, or mitigate, a physical or mental
impairment, the effects of those measures, both
positive and negative, must be taken into
account when judging whether that person is
substantially limited in a major life activity and
thus disabled under the [ADA].” That is, to
determine whether someone is disabled, ask
whether her physical or mental impairment,
when mitigated by medication or other correc-
tive devices, substantially limits her ability to
perform major life activities.
In Toyota Motor Manufacturing v. Williams
(534 U.S. 184, 122 S. Ct. 681, 151 L. Ed. 2d
615 [2002 ]), the high court further narrowed
the standard for establishing that one has a
disability covered under the ADA. In that case,
Ella Williams, an assembly line worker in a
Toyota automobile-manufacturing plant, de-
veloped severe carpal tunnel syndrome from
her job. Her physician imposed limitations on
her manual activities, disqualifying her from
most of the assembly jobs in the plant. Toyota
eventually accommodated her by assigning her
to a lighter-duty unit but later required her to
rotate to an additional job station, where she

had to work at regular intervals with her hands
and arms above shoulder height. Her disabling
symptoms reappeared and worsened, but her
request to be returned to her original accom-
modation was denied. She became unable to
work and lost her job soon afterward. The
SOURCE: U.S. Census Bureau, Americans with Disabilities: 2005, published
December 2008.
Persons with Disabilities, 2005
a
Population refers to the total civilian noninstitutionalized resident population.
Total
Male
Female
Percentage of total U.S. population
a
Severe disability
Minor disability
0 5 10 15 20
12.0
6.7
10.6
6.7
13.4
6.7
There were approximately 54.4 million Americans with disabilities in 2005, or 18.7% of the
U.S. population.
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY PER-

MISSION OF GALE, A
PART OF CENGAGE
LEARNING.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
DISABILITY DISCRIMINATION 463
court ruled that under the ADA, the inability
to perform occupation-specific tasks does not
necessarily mean that employee is substantially
limited in performing a major life activity.
Both decisions were criticized by disability
rights advocates as too restrictive. Because the
Court based its rulings on statutory interpreta-
tion, Congress had the ability to explicitly
OVERRULE the interpr etations by amending the
ADA. This occurred when Congress passed the
Americans with Disabilities Act Amendments
Act of 2008 (Pub. L. 110-325). The law dealt
specifically with the Sutton and Toyota rulings.
In its findings to support the 2008 amend-
ments, Congress rejected the requirement in
Sutton that whether an impairment substantially
limits a major life activity is to be determined
with reference to the ameliorative effects of
mitigating measures. It also rejected the Court’s
reasoning with regard to coverage under the
third prong of the definition of disability.
Congress stated that it was reinstating the
reasoning of a prior Supreme Court case, which
set forth a broad view of the third prong of the

definition of handicap under the Rehabili tation
Act of 1973.
As for Toyota, Congress stated in its findings
that the decision wrongly narrowed the broad
scope of protection intended to be afforded by
the ADA. The Court had interpreted the term
“substantially limits” to require a greater degree
of limitation than was intended by Congress.
The amendment was intended in part to reject
standards enunciated by the Supreme Court
in Toyota that the terms “substantially” and
“major” in the definition of disability under
the ADA “need to be interpreted strictly to
create a demanding standard for qualifying as
disabled” and that to be substantially limited in
performing a major life activity under the ADA
“an individual must have an impairment that
prevents or severely restricts the individual from
doing activities that are of central importance to
most people’s daily lives.” Congress concluded
that the ruling created an inappropriately high
level of limitation necessary to qualify under
the ADA. Congress stated that the primary
object of attention in cases brought under the
ADA should be whether entities covered under
the ADA have complied with their obligations
and to convey that the question of whether an
individual’s impairment is a disability under the
ADA should not demand extensive analysis.
Small Businesses Congress enacted the ADA

with some concerns that the statute would drive
up costs for small businesses by requiring ex-
pensive accommodations for disabled employees.
Despite this general policy goal, Congress failed
to precisely define who qualified as an employee
under the act. In the case of medical, legal, and
accounting firms, which are usually organized as
professional corporations, this definitional issue
has produced a series of court cases. Doctors
have argued that as shareholders of the corpo-
ration, they cannot be classified as employees
and, therefore, cannot be counted toward the
threshold of 15 employees for ADA purposes. In
Clackamas Gastroenterology Associates, P.C. v.
Wells (538 U.S. 440, 123 S. Ct. 1673, 155 L. Ed.
2d 615 [2003]), the Supreme Court agreed with
this argument, thereby removing thousands of
small businesses from the reach of the ADA.
Damage Limitations In Barnes v. Gorman
(536 U.S. 181, 122 S. Ct. 2097, 153 L. Ed. 2d
230 [2002]), the U.S. Supreme Court declared
that persons excluded by local governments
from programs funded with federal dollars
may not receive punitive damages, no matter
how eg regious the discrimination t hat they have
suffered. In that case, Jeffrey Gorman, who was
confined to a wheelchair, was arrested one night
in Kansas City, Missouri, and transported in
a city police van that did not have the right
equipment to take him safely. He sustained

serious injuries, which prevented him from
further gainful employment. At trial, the jury
learned that the police department had failed to
comply with the Rehabilitation Act since its
passage in 1973, and even worse, it had done
nothing after Gorman was hurt to prevent
further injuries. A federal appeals court upheld
the jury’sdamagesawardofmorethan$2million.
Local officials appealed the punitive damages
portion, about half the total award, to the U.S.
Supreme Court, arguing that punitive damages
for disability discrimination could bankrupt city
governments. Several groups, including AARP,
pointed out that in Gorman’scase,andother
instances of egregious, intentional discrimina-
tion, punitive damages serve the worthy goals of
deterring illegal conduct and compensating
victims for their unneeded suffering. The U.S.
Supreme Court reversed in a decision reflecting
that neither the Rehabilitation Act nor the ADA
permits an award of punitive damages in cases of
access to public services.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
464 DISABILITY DISCRIMINATION
Eleventh Amendment Issues In University of
Alabama v. Garrett (531 U.S. 356, 121 S. Ct.
955, 148 L. Ed. 2d 866 [2001]), respondents
Garrett and Ash filed separate lawsuits against
petitioners, Alabama state employers, seeking
money damages under Title I of the ADA. In an

opinion disposing of both cases, the district
court found that the ADA exceeds Congress’s
authority to abrogate the state’s
ELEVENTH
AMENDMENT
immunity. The Eleventh Circuit
reversed on the ground that the ADA validly
abrogates such immunity. The U.S. Supreme
Court held that suits in federal court by state
employees to recover money damages by reason
of the state’s failure to comply with Title I of the
ADA are barr ed by the Eleventh Amendment.
Despite the cases that have limited the ability
of Congress to revoke state
SOVEREIGN IMMUNITY,
the Supreme Court has upheld suits under the
ADA against state notwithstanding Eleventh
Amendment arguments. In United States v.
Georgia (546 U.S. 151, 126 S. Ct. 877, 163 L. Ed.
2d 650 [2006]), the Supreme Court ruled that a
Georgia state prison inmate who was a para-
plegic could pu rsue a Title II damages lawsuit
against the state of Georgia for the conditions
of the confinement.
FURTHER READINGS
Bagenstos, Samuel R. 2009. Law and the Contradictions of
the Disability Rights Movement. New Haven, Conn.:
Yale Univ. Press.
Colker, Ruth. 2009. When Is Separate Unequal? A Disability
Perspective. New York: Cambridge Univ. Press.

Gaskill, Ricca. 1994. Americans with Disabilities Act: An
Analysis of Developments Relating to Disability Law.
New York: Practising Law Institute.
Jones, Nancy Lee. 2003. The Americans with Disabilities Act
(ADA): Overview, Regulations, and Interpretations.
New York: Novinka Books.
Poston, Sarah. 1994. “Developments in Federal Disability
Discrimination Law: An Emerging Resolution to the
Section 504 Damages Issue.” 1992/1993 Annual Survey
of American Law 419.
Russo, Charles J., and Allen G. Osborne Jr. 2009. Section 504
and the ADA. Thousand Oaks, Calif.: Corwin Press.
CROSS REFERENCES
Acquired Immune Deficiency Syndrome; Damages; Equity.
DISABILITY INSURANCE
See OLD-AGE, SURVIVORS, AND DISABILITY INSURANCE.
DISAFFIRM
Repudiate; revoke consent; refuse to support former
acts or agreements.
Disaffirm is commonly applied in situations
where an individual has made an agreement
and opts to cancel it, which he or she may do
by right—such as a minor who disaffirms a
contract.
A disaffirmance is a denial or nullification
of the existence of something, as opposed to a
revocation, which is the breaking of an existing
agreement.
DISALLOW
To exclude; reject; deny the force or validity of.

The term disallow is applied to such things
as an insurance company’s refusal to pay a claim.
DISARMAMENT
See ARMS CONTROL AND DISARMAMENT.
DISASTER RELIEF
Monies or services made available to individuals
and communities that have experienced losses
due to disasters such as floods, hurricanes, earth-
quakes, drought, tornadoes, and riots.
The term disaster has been applied in U.S.
law in a broad sense to mean both human-made
and natural catastrophes. Hu man-made cata-
strophes include civil disturbances such as riots
and demonstrations; warfare-related upheavals,
including those created by guerrilla activity
and
TERRORISM; refugee crises involving the
forced movements of people across borders;
and many possible accidents, including trans-
portation, mining, pollution, chemical, and
nuclear incidents.
Natural disasters are divided into three
categories: meteorological disasters, such as hur-
ricanes, hailstorms, tornadoes, typhoons, snow-
storms, droughts, cold spells, and heat waves;
topological catastrophes, such as earthquakes,
avalanches, landslides, and floods; and biologi-
cal disasters, including insect swarms and disease
epidemics.
A disaster may also be defined in sociologi-

cal terms as a major disruption of the social
pattern of individuals and groups.
Disaster relief efforts are typically an exam-
ple of federalism at work, as local, state, and
national governments take on varied responsi-
bilities. Disaster relief has historically been
considered a local responsibility, with the federal
government providing assistance when local
and state relief capacities are exhausted.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
DISASTER RELIEF 465
Most states have agencies that coordinate
disaster relief and planning. A majority of states
have statutes that define appropriate procedures
for disaster declarations and emergency orders.
Such statutes also empower relief agencies to
utilize state and local resources, commandeer
private property, and arrange for temporary
housing during an emergency.
The federal government has played an
increasingly influential role in disaster response
and preparedness. In fact, as federal disaster
assistance grew in the late twentieth century,
it became a unique form of aid to states and
localities. Significant amounts of money are
often made available to a disaster area for years
after the disaster has occurred.
At all levels of governme nt disaster relief is
carried out under the authority of an executive
official: a city mayor, a state govern or, or the

nation’s president. In the last instance, federal
disaster legislation gives the president wide
powers. The president decides what situations
may be declared disasters and dictates the extent
of federal assistance. In most situations, state
governors are the appropriate officials to ask
the president for federal assistance.
Under the Robert T. Stafford Disaster Relief
and Emergency Assistance Act (Stafford Act)
(Pub. L. No. 93-288, 42 U.S.C.A. § 5121 et seq.),
the president may declare a catastrophe either
an emergency or a major disaster. This classifi-
cation is not necessarily indicative of the severity
of the event. Instead, the designation determines
the extent of federal aid available for the
particular calamity. In general, more federal
funds are available for major disasters than for
emergencies. For the president to declare either
an em ergency or a major disaster, the governor
of the affected state must announce that the
catastrophe is of such severity that state re-
sources cannot effectively cope with it.
After a formal
DECLARATION has been made
at the federal level, all authority for disaster
relief operations descends from the president,
through the
FEDERAL EMERGENCY MANAGEMENT
AGENCY
(FEMA), and down to other agencies

engaged in relief operations. First established in
1979, FEMA coordinates federal efforts related
to natural disaster planning, preparedness, res-
ponse, and recovery. FEMA fun ds emergency
programs and works closely with state and local
governments. Since 2003 FEMA has been a
component of the
HOMELAND SECURITY DEPART-
MENT
(DHS).
After the president declares an emergency or
major disast er, FEMA and other agencies within
DHS are responsible for implementing the
National Response Framework. DHS established
the National Response Framework (NRF) in
2008 to replace the National Response Plan.
The NRF involves cooperative effort between
the federal government, nongovernmental orga-
nizations, and the private sector. The NRF
organized responsibilities according to 15 emer-
gency support functions (ESFs) that allow the
DHS to coordinate the efforts of federal depart-
ments and agencies, along with other private and
nongovernmental entities. The ESFs include:
transportation; communications; public works
and engineering; firefighting; mass care, emer-
gency assistance, housing, and human services;
logistics management and resource support;
public health and medical services; search and
rescue; oil and hazardous material response;

agriculture and natural resources; energy; public
safety and security; long-term community re-
covery; and external affairs.
Congress and state legislatures may also
make assistance available in times of disaster.
For example, the Disaster Assistance Act of 1988
(7 U.S.C.A. §§ 1421, 1471; 26 U.S.C.A. § 451)
made $5 billion available to farmers during a
severe drought. Farmers who had lost more than
35 percent of their crops could receive up to
$100,000 to cover 65 percent of their losses over
an initial threshold. When Hurricane Hugo hit
American Red Cross
volunteers in Phoenix,
Arizona, assist
evacuees from New
Orleans during
Hurricane Katrina.
AP IMAGES
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
466 DISASTER RELIEF
the southeastern coastal states in 1989, Congress
approved $1.1 billion in aid six days later.
Congress has also authorized other agencies
to provide disaster assistance. The
SMALL BUSINESS
Administration’s Office of Disaster Assistance
supplies loans to businesses that suffer economic
losses owing to natural disasters. The

AGRICULTURE
DEPARTMENT
provides emergency loans to eligible
farmers and ranchers for losses owing to natural
disasters. It may also give farmers cost-sharing
assistance in addition to the use of land that was
previously set aside for conservation purposes.
The U.S. government’s Agency for International
Development makes disaster relief and planning
available to foreign countries.
Private organizations, including the Red
Cross and the Salvation Army, play a significant
role in disaster relief. In 1905 Congress offi cially
recognized the Red Cross and its role in
responding to significant crises (36 U.S.C.A.
§ 1), and all subsequent federal disas ter laws
have renewed this recognition. The Red Cross
makes a careful distinction between its human-
itarian relief activ ities, including the provision
of fo od and shelter, and activities that it believes
are best handled by government.
Experts on disaster relief have increasingly
called for a greater emphasis on prevention as
opposed to relief. Plans for improved disaster
preparedness often call for a greater use of new
technologies, including satellite and radar tech-
nologies that aid in the early detection of potential
disasters.
Before 1950, disaster response was charac-
terized by an ad hoc, or case by case, approach.

Relief involved a reaction to specific crises with
little planning or preparation for future disas-
ters. Then, as now, it was initially activated by
Lives Lost in Major U.S. Weather Disasters,
a
1980 to 2008
SOURCE: U.S. National Oceanic and Atmospheric Administration, National Climatic Data Center, “Billion Dollar U.S.
Weather Disasters,” available online at a.
g
ov/oa/reports/billionz.html (accessed on Au
g
ust 12, 2009).
Number of lives lost
500
400
300
200
100
0
1985 1988
b
67
1995 1998
13
2000
46
2001 2002
28
2003
131

2004
168
99
2005 2006
c
95
2007
c
22
396
2008
274
10,000
7,000
1990
7,500
1980
b
10,000
2,002
Year
a
Weather-related disasters costing $1 billion or more, including hurricanes, tropical storms, floods, droughts, blizzards, severe freezes,
ice storms, and wildfires.
b
A drought/heat wave occurred across the central and eastern United States during the summer months.
c
Complete data was not available.
140
ILLUSTRATION BY GGS

CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
DISASTER RELIEF 467