Sunday, March 22, 2015

Judicial interpretation affecting the narrowing of ADA

The greatest reason why the ADA has been heavily narrowed by the judicial interpretation of many courts and viewed negatively by the media and therefore the rest of society goes back to the way it was passed as a stealth movement without a broad social mandate demanding it.  All the compromises that were made in order to get the bill through both houses of Congress and an incredibly conservative president served to make the statute more vague, and thus opened it to judicial interpretation by federal judges.  As many of you know most federal judges are appointed to serve for life, or at least long, as they want.  This combined with the recent trend toward judicial textualism led by Supreme Court Justice Anton Scalia.  This interpretive approach only takes in consideration what the letter of the law says, while denying to acknowledge the purpose or intent of Congress when drawing up the law.  Therefore, there is often a failure to recognize the context of heavy discrimination towards people with disabilities.  Without understanding the context from which the ADA arose and without a social mandate to remove discrimination against people with disabilities, it can become difficult to justify laws which create an affirmative duty on the part of employers to both not discriminate against them, and make accommodations for people who need them to work, especially if it is outside the common industry practice of the business.
            Also, because judges are allowed to serve so long that it is not uncommon for their ideas of how the world operates to be behind the times and the current status of social opinion.  In addition, because judges tend to be older, they tend to have outdated views of relatively new concepts such as the social construction of disability.  It is probably the reason why courts overwhelmingly for the defendant in ADA cases as they rely on the medical model of disability in making their judicial interpretations, which affect the status of law.

No comments:

Post a Comment