Recent work on disability rights reminds us that ‘treating everyone the same’ can still cause inequality

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It was a victory for people with disabilities and disability rights advocates. Before the case was withdrawn in November, “CVS Pharmacy, Inc. v. Doe “ was scheduled to be heard in the United States Supreme Court this month. HIV-positive complainants filed a complaint against CVS because they wanted to be able to opt out of a program that required them to receive their HIV-related medications only through the mail, rather than allowing them to access in-person services at pharmacies in Canada. CVS.

The question before the court was whether a federal law on persons with disabilities, known as Section 504 of the Rehabilitation Act 1973, applied to situations in which a policy was created with the intention of being neutral and later found to be harmful or discriminatory towards people with disabilities.

An example is a case from the 90s, in which Hawaii required that all animals entering the state be quarantined to prevent the spread of rabies in the state. While the policy seemed neutral, it had a heavy impact on people with disabilities who use service animals. (The case was later settled, with Hawaii providing special accommodations for people who use service animals.)

“The idea behind some of the disability protections is that you may not be intending to discriminate, but you may need to take positive obligations when your neutral policy could have a burden or impact. disproportionate on people with disabilities, ”said Stuart Seaborn. , general manager of litigation Disabled People’s Rights Defenders, a national non-profit legal center on the rights of persons with disabilities. He took the time to discuss some of the disability rights issues raised in the CVS case and why the resolution and cooperation between disability advocacy groups and CVS is a relief for people with disabilities. . (This interview has been edited for length and clarity.)

Question: How “CVS Pharmacy, Inc. v. Doe ”made it to the Supreme Court?

A: I can certainly answer that question in terms of how it ends up in the Court of Appeal and the question that is important to advocates. It’s really about making sure that, even though there is no clear intent to discriminate, the protections we have taken for granted for years are still in place so that a person can request accommodation. if she can prove that she has a disability-related need, and that the impact on them is in fact heavy. I think the impact on them is how the case got here.

From an advocate’s perspective, the reason it made sense to stick with this argument is that there may be neutral policies that discriminate and, therefore, there is a need to preserve this right to a accommodation.

Question: In ACLU commentary in October, they discuss the role of disparate impacts in this affair. Can you help us understand what this means, especially in relation to disability discrimination cases and issues?

A: A disparate impact occurs when you have a seemingly neutral program, policy or practice that disproportionately weighs or negatively impacts people with disabilities.

There is a case in Portland, Oregon, “McGary v. City of Portland “, which illustrates this. There was an owner living in Portland with significant disabilities, who was unable to meet the city’s requirements for yard maintenance, and they faced fines or penalties for not maintaining things. . Although, in its policies on what homeowners should do to conserve and maintain their properties, I can’t imagine the city even thought of people with disabilities at the time. To give them the benefit of the doubt, it sounds very neutral. At the same time, it really had a disproportionate impact on this person who had these conditions that really didn’t allow him to keep up. So the court said there was a disproportionate burden even though there was no intention to discriminate, and they called on the city to adapt.

Of course, we want public entities and businesses to be as proactive as possible, in terms of policies and practices, to ensure that they are as fair as possible for people with disabilities. The law was designed to protect situations where there may be something they haven’t thought of, but it still has this negative impact on the disability community. The idea behind this is that there should be this flexibility to ensure that a change is available if that happens.

Question: What was at stake for people with disabilities in the “CVS” case?

A: I think there were two things at stake. One is specifically the right to have housing. For people living with HIV in this case, and I can only speak from what I have read, it seems that there was a need for people to have the option of having housing to carry out this. company in person. Second, the biggest impact on the community was the critical element, and the idea that reasonable accommodation of neutral practices or policies was part of this landscape of disability law. It has truly enabled people with disabilities, with accommodations, to participate actively in society, more than it had been an option for the past 30 years or so before the passage of the Americans with Disabilities Act. As these rights evolved, it was really about protecting that right to reasonable accommodation. The deal would be that, as long as it is reasonable, the company may have to change its policies, even if the policies are neutral. It has been a tremendous boon for the participation of people with disabilities in the community, in all aspects of public life, employment and housing, among others. This concept, which pre-dates the ADA, was really necessary to preserve.

Question: Can you give examples of the impact of reasonable accommodation?

A: There are literally hundreds of them, but just looking at Section 504 (which applies to a variety of things), DRA also handles matters regarding access to voting rights. There are seemingly neutral policies that accompany counties that turn to mail-in ballots during the pandemic, or otherwise. As a method of doing things, there is nothing about absentee voting that is discriminatory. However, there are people with visual impairments who may not be able to read a paper ballot, so it may be necessary to modify this postal voting schedule, even if the people who prepared the schedule do not. ‘did not intend to discriminate against people with the visually impaired or blind people. This is one example, but there are a number of examples where there is a seemingly neutral policy or practice that does not consider the impact on communities and people with disabilities.

Question: What kind of difference does it make in the work done in this area that CVS has pulled the case and chosen to work on more equitable policies for people with disabilities?

A: I must say that I am delighted and shocked by the work of the community. Community groups of people with disabilities, too numerous to name, have made active efforts to do things in a very proactive and cooperative manner. Rather than being aggressive with litigation tactics or being negative, the community has made a proactive effort to reach not only the public, but also the businesses involved, including CVS. It bodes well for the future that there may be this type of grassroots and community advocacy that has its own impact on covered entities and decision makers. This, to me, was amazing. We have seen with the ADA and section 504, often the only way to enforce it has been through the courts, given that it is really the main means of enforcement in the country. It’s really nice to see this kind of cooperation and public awareness making a real impact. Kudos to CVS for its willingness to sit down, listen and focus on how it could achieve more equitable policies for people with disabilities. It takes a lot for that to happen, and I think it is a testament to the efforts of the community, but also of the company that really sat down and took things seriously.

Question: What should people outside the disability community understand about the ripple effects of these types of cases and policies?

A: If there is a threat to these laws, it may seem harmless to say, “Well, what’s wrong with saying we just can’t discriminate against anyone, and so on. is the requirement? Why do you need that extra positive requirement that businesses welcome people or do something different for the disabled community than they would for someone else? Why can’t you treat everyone the same? It sounds fair to hear that you treat everyone the same, but I think I would encourage people to look beyond what it really means for people with disabilities. Treating people the same can actually lead to an unfair playing field. You may need to demand, as far as is reasonable, accommodation so that people have a level playing field. This is something that can be difficult to convey when the entity on the other side says, “Look, we had no bad intentions here. In fact, we are trying to figure out how to treat everyone the same.

In these cases, we often look at what is fair in terms of equal opportunities, so that people can participate on an equal basis. Often times, having this equal opportunity means there has to be some kind of affirmative action, and it can’t just treat everyone the same.


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