Hot Practice

Legislation, demographics, and awareness develop market for disability law

By Margaret Graham Tebo

Disability law—some say it’s the new frontier in the struggle for civil rights. Others say it’s about giving all people the opportunity to be contributing members of society. Still others say it’s simply about basic human dignity. And there are those who say that what has been a boon to many disabled individuals has been the bane of some employers.

In short, the practice of disability law is about as diverse as the population of people with disabilities the laws are designed to protect. The most well-known of these laws is, of course, the Americans With Disabilities Act (ADA), which sets guidelines for employers, businesses, schools, and other places of "public accommodation" in dealing with and properly protecting the interests of workers, clients, students, and others with disabilities.

Judge Richard Brown knows firsthand of the need for reasonable accommodations to help him do his job. Brown, co-chair of the American Bar Association Individual Rights and Responsibilities Section’s Committee on Disability Law, lost his hearing in 1983. He uses special software in his courtroom that allows the court reporter’s transcription to be instantaneously translated and to appear on a computer screen on his judicial bench, enabling him to follow the testimony and arguments of litigants and lawyers in real time.

"People with disabilities are just now learning what the ADA can do for them," says Brown, presiding judge of the Wisconsin Court of Appeals’ 2nd District. "As people gain more knowledge and assert more rights with employers and public entities, there are a large number of potential clients out there for young lawyers interested in this area of law."

The area of disability law is still relatively new and is still evolving, according to Brown. He points to recent decisions by the U.S. Supreme Court as evidence that Congress’s intent in the law is still not always clear. In three decisions handed down in the summer of 1999, the court found that workers who are unable to meet employers’ physical requirements for a job, but whose "disability" does not impact their quality of life, are not eligible to sue the employers under the ADA. Thus, two pilots who were refused jobs at an airline because of imperfect eyesight could not sue because their eyesight was correctable with glasses or contacts, and a trucker who was fired for high blood pressure could not sue because his blood pressure was correctable with medication.

"I think that decision was absolutely wrong," Brown says . "Any responsible person reading that statute would see that Congress meant to protect all persons who are disabled or are perceived to be disabled."

If a worker can’t do the job, that’s one thing, Brown says. But when a worker is capable of performing the job and is fired for a perceived disability, he argues, that worker should be allowed to seek redress under the ADA. Brown believes that Congress will eventually pass new legislation that effectively overrides the Supreme Court’s interpretation of the current law.

James Carr agrees with Brown’s assessment. Carr is chair of the ABA Commission on Mental and Physical Disability Law, which recently achieved passage of an ABA resolution to increase the participation of people with disabilities in the legal profession.

"There really needs to be more education of employers that hiring a person with a disability need not be a black hole of expense and lesser performance," Carr says. "Most accommodations are relatively inexpensive and enable people to do the job just as well as other employees."

But even the court system itself has much to learn, Carr says, citing the case of a brand-new federal courthouse in California that is not fully accessible to people with disabilities.

"As the baby boomers age, I really think they will begin to demand more accommodations as a group," Brown says. "Legislatures will listen, simply because boomers are a huge demographic. The result will be a shift toward more accommodation."

Other disability law issues that both Brown and Carr cite as hot growth areas for practitioners include insurance coverage for mental disabilities and the rights of children with various disabilities to be included in regular classrooms rather than being separated into special-education classes.

As is the case with many well-intentioned laws, the ADA has spawned some attempts to fraudulently take advantage of protective provisions.

"Some people look at disability laws as a ticket to early retirement, and they use the ADA to try to force their employers to pay for it," says Clark Cole, a litigator in St. Louis who represents employers defending ADA claims.

Cole, past chair of the ABA Tort and Insurance Practice Section’s Health and Disability Law Committee, sees growth in opportunities for young lawyers who wish to practice in this niche area of employment law. He says that changes in managed care rules and state and federal attempts to pass legislation mandating certain levels of insurance coverage and protections for questionably disabled workers will keep litigation churning in the area.

For those wishing to represent people with disabilities, the opportunities will also abound.

Lawyers have an opportunity to be educators on these issues, Carr says. A survey by the commission’s Mental and Physical Disability Law Reporter shows that defendant employers, schools, and other public places won more than 90 percent of suits brought under the ADA. But, Carr notes, the shift is beginning, and like other civil rights issues, a few landmark cases could begin to break down barriers that still exist.

Brown says that, ultimately, he would like to see many general practitioners making disability cases a part of their total practice.

"Many folks seem to think that if they are interested in representing people with disabilities, the only way to do it is through public interest organizations or government positions. But if more lawyers would learn a little about the ADA and take on private cases, the changes would happen on a much broader level," Brown says, noting that most disability rights statutes, including the ADA, provide for attorneys fees for successful litigants.

And, unlike some areas of law, clients are found literally everywhere a lawyer might set up a practice.

"People with disabilities live all over the country, in small towns, and those people are just as in need of representation as people who live in cities with large public interest groups to represent them," Brown says. "The need is there, and it’s just the right thing for a lawyer to do."

 

Margaret Graham Tebo, a former Student Lawyer student editor, is a writer, lawyer, teacher, and literary agent in suburban Chicago.