Recently, the Center for Health & Pharmaceutical Law & Policy hosted a fascinating talk by visiting scholar Professor Ani Satz regarding the treatment of disability within American society. Satz is a regulatory health lawyer and philosopher who is an Associate Professor at Emory University School of Law and holds a faculty appointment at the Rollins School of Public Health and the Center for Ethics. She served as 2009-10 chair of the Disability Law Section of the Association of American Law Schools and continues to serve as a member of the executive board of the section.
Professor Satz focused on the fragmentation inherent in health and disability law. She first addressed the current implementation of the Americans with Disabilities Act (ADA), the primary piece of legislation dealing with discrimination against those with disabilities. She noted that while the ADA sought to protect those with disabilities from employment discrimination and unemployment, the employment statics of those who are disabled show that their employment today is at a lower or same level as that since before the passage of the Act. The primary problem according to Professor Satz is the lack of true protection afforded by the Act; despite your disability, if you cannot do the job as well as anyone else, you can be terminated. Further, a problem arises in that although the ADA requires an employer to provide those disabled with “reasonable accommodations,” what accounts for reasonable is largely left to the employer themselves.
Stepping back from the ADA, Professor Satz believes that the problem goes deeper, and stems directly from the way society views disability. Traditionally, America has viewed disability as only affecting individuals or smaller pockets of people. Professor Satz believes that a more appropriate perspective would consider that all people are constantly vulnerable to disability and illness– making us each, in a sense, potentially disabled, and the position of the disabled in American society ours but for a single debilitating event. Essentially, what Professor Satz espouses as the more appropriate societal response to disability may be seen as a function of Rawl’s famous veil of ignorance: If you were forced to come up with rules for a society, and you knew not your own status– gender, race, size, intelligence or (dis)ability, what then would the law look like?
She cited natural disasters, toxins, poverty, and war as a few of the problems to which all Americans are constantly vulnerable, with a lifetime of disability waiting on the other side. But because of our failure to take into account the very real potentiality, there is the assumption that disability only affects the few, and Professor Satz posits that the law fragments or breaks apart our experiences and thus does little to protect those with disabilities.
At the heart of this fragmentation is the lack of coordinated care. Neither federal nor state health agencies address this issue, and can even create barriers to the coordination of care. At the macro level, fragmentation stems from statutes and regulations and the case law interpreting them. Again, while the original goal of the ADA was to decrease barriers to employment, in effect, it has provided little protection. At the micro level, individuals with disabilities often lose, largely due to the way in which courts are constructing the “environment.” Looking at the person’s abilities as a whole, rather than in the workplace, Professor Satz believes that the courts find many people to be non-disabled because they can do routine daily tasks, such as cook for themselves, while in reality they are unable to perform within the rigors of the workplace.
As a solution, Professor Satz suggests that we must take a more holistic view of disability, acknowledging that we are all constantly vulnerable. Viewed through the lenses that we are all thus equally affected, we can try to protect ourselves from the detrimental effects of disability should they strike us. Further, Professor Satz thinks that the reasonable accommodation mandate of the ADA needs to be expanded. She would like to see federal mandates in place outlining exactly how employers must accommodate employees. Acknowledging concerns that greater accommodations will lead to greater burdens on private employers, she suggests the possibility of the federal government setting up a fund through which these accommodations could be paid for. In the end, she thinks that changing societal views towards the concept of disability, and in turn the laws driven by those views, will be a hard but necessary task if a real difference is to be made.