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judges tend to be older, they tend to have outdated views of relatively new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.
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