Perspectives on Disability, Discrimination, Accommodations, and Law (Law and Society (New York, N.Y.).)

281 Pages·2005·1.07 MB·English

by  Wayne Thomas Oakes

Law and Society
Recent Scholarship

Edited by Eric Rise

A Series from LFB Scholarly
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Perspectives on Disability,
Discrimination, Accommodations,
and Law
A Comparison of the Canadian and
American Experience

Wayne Thomas Oakes

LFB Scholarly Publishing LLC
New York 2005
Copyright © 2005 by LFB Scholarly Publishing LLC

All rights reserved.

Library of Congress Cataloging-in-Publication Data

Oakes, Wayne Thomas, 1954-
Perspectives on disability, discrimination, accommodations, and law :
a comparison of the Canadian and American experience / Wayne
Thomas Oakes.
p. cm. -- (Law and society)
Includes bibliographical references and index.
ISBN 1-59332-073-6 (alk. paper)
1. People with disabilities--Legal status, laws, etc.--United States. 2.
People with disabilities--Legal status, laws, etc.--Canada. I. Title. II.
Series: Law and society (New York, N.Y.)
KDZ2049.O25 2005
342.7108'7--dc22

2005012795

ISBN 1-59332-073-6

Printed on acid-free 250-year-life paper.

Manufactured in the United States of America.
Table of Contents

Preface vii
Acknowledgements ix

Chapter I Equality and Rights for Persons with Disabilities

Introduction 1
Overview of Book Chapters 5

Chapter II Theoretical Perspectives on Disability Protections

Introduction 9
Libertarian Approach to Equality 11
Efficiency and Equality 12
A Utilitarian Approach to Equality 18
Equality of Resources 24
Capabilities Approach to Equality 33
Equality: Acknowledging the Role of Experience 40

Chapter III Constitutional, Statutory and Legal Framework

Introduction 47
The Constitution of the United States 48
Federal Legislation 50
Defining Covered Disability 51
Defining Impairment 52
Substantial Limitation of a Major Life Activity 53
Establishing Discrimination 55
Summary 64
Canadian Statutory Background 64
Charter of Rights 65
Human Rights Legislation 70
Employment Equity Legislation 71
Statutory Definitions of Disability 73
Assessing the Degree of Impairment 77
Reasonable Accommodation 80
Establishing Discrimination 82
Summary 86
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Chapter IV Comparative Evaluation of American and Canadian
Employment Disability Laws

Introduction 87
Constitutional Protections 88
The Definition of Disability 94
Substantial Impairment versus Measurable Impairment 97
Mitigation Measures and Palliative Devices 111
Reasonable Accommodation 131
The Role of Cost Benefit Analysis 132
The Extent of Accommodation 142
Reassignment As A Reasonable Accommodation 150
Conclusion 160

Chapter V Access To Higher Education and the Professions for
Persons With Disabilities

Introduction 163
Statutory Protection and Access to Higher Education 164
Stigmatization and Disability 167
Access to Universities and Colleges 170
Flagging Non-Standard Test Scores 170
Learning Disabilities and Reasonable Accommodations 174
Academic Accommodations and the Substantially 182
Limited Clause
Breach of Contract and Breach of Promises to Accommodate 193
Judicial Deference Toward Academic Decision Making 197
How Much Deference? And Implications 204
Access to the Professions and Professional Examinations 213
Conclusion 231

Chapter VI Concluding Remarks 233

Cases Referenced 237
Bibliography 251
Index 269
Preface

The initial thoughts about writing this book were first developed during a
seminar on disability law in Hartford, at the University of Connecticut
School of Law. These ideas were developed further in Toronto, Canada,
and finally these observations coalesced into this book while I was
working in West Hartford, Connecticut. The purpose of this book is to
examine the law of disability discrimination within the United States and
Canada. Comparisons are drawn between the statutes and case law in the
two countries with respect to anti-discrimination issues. Due to the
tremendous breadth of issues involved in undertaking such comparisons,
this effort sought to limit the scope of this evaluation to employment
discrimination, accommodation for disability and access to higher
education and the professions.
The foremost argument herein is that disability protections within the
United States, specifically those offered by the Americans with
Disabilities Act, have failed in large part to achieve many of its stated
objectives. The first and foremost failure of US disability law is the fact
that almost all plaintiffs lose their discrimination cases and defendants
almost always prevail. The nature of this divide is exceptionally marked.
The courts consistently find that plaintiffs with disabilities are not disabled
within the meaning of the relevant statutes or that the requested
accommodations are too significant, expensive or intrusive. Plaintiffs
must overcome a multifaceted definition of disability, weaving through an
obstacle course that will often find them either too disabled to qualify for
accommodations or insufficiently disabled to be eligible for statutory
protection.
Consequently, there are important lessons for Canadian policy makers
interested in devising similar laws for Canada and its various jurisdictions.
Similarly, US policymakers may be interested in using their authority to
refurbish the functions of their relevant disability statutes. In the end, the
means by which society regards equality as it relates to disability is a
larger reflection of how society respects questions of equality generally.
The discussion contained within this effort commences with a review
of the theoretical foundations upon which disability law is structured
upon. I argue that these different theories form the basis upon which
disability and anti-discrimination legislation are based. An amalgam of
market-based, capabilities and rights-based theories have produced law
and jurisprudence in the United States that limits the capacity of people
with disabilities to obtain judicial remedies. Canadian statutes,
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administrative tribunals and courts have developed a broader conception
of disability and a wider understanding of appropriate accommodations
and resolutions than exists in the United States.
This broader conception has resulted in a set of holdings more
favourable to those with disability claims involving employment
discrimination. Similar findings were also found in an examination of
cases dealing with access to higher education and the professions. US
courts have been, in large part, quite unfriendly to disability claims
involving access to higher education, preferring to defer to the decisions of
academic decision makers. Few Canadian holdings deal with these issues.
It will be interesting to see how Canadian courts deal with similar cases
when they do inevitably arrive before them.
The examination described herein concludes that the ADA may need
amendment by Congress to improve its effectiveness as an anti-
discrimination statute. Similarly, Canadian provinces should consider
passage of proactive legislation to improve the effectiveness of the human
rights laws used in Canada. The lack of legislation dealing specifically
with the removal of architectural barriers is one of the more serious
deficiencies in Canadian disability law.
Acknowledgements

Many people have read all or parts of this work and offered comments on
it. I am especially indebted to law professors Eric Tucker, Janine Benedet,
Roxanne Mykitiuk, lawyer, philosopher and professor Jerome Bickenbach
of Queen’s University and attorney David Baker for each of their
observations and comments.
I wish to thank all those who encouraged me during the time I was
engaged in this project, including everyone in Ontario, Canada, and those
in Connecticut and New York. Thanks goes to all who assisted in any
fashion. I also thank my mother and father for tolerating me during the
time I have been around their home. I also dedicate this work to my father
who passed on during the latter stages of this study.
During the initial stages of this research, financial support for this
exposition was received from the McLaughlin Foundation, the Willard
Estey Fellowship and the Arthur Brunskill Fellowship. This support was
essential and greatly appreciated and a particular thank you is extended to
those in charge of each of these excellent programs.
The theories and cases discussed herein were selected by me as
appropriate given the specific content discussed. I tried to discuss these
cases in a responsible manner; professional responsibility is important to
me. Insights, comments and criticisms, including suggestions on
additional specific cases for discussion were beneficial and invariably
necessary. From time to time, it was determined that suggested cases were
not an appropriate fit given the materials discussed within the book.
Occasionally, critical comments were waived. I also may have missed
some interesting cases; there are so many. For such evaluations as well as
the existence of any remaining errors, the responsibility is, of course, all
mine.

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