Gale Encyclopedia Of American Law 3Rd Edition Volume 3 P47 pdf

the result of “benign neglect” and is “primarily the result of apathetic attitudes rather than af- firmative animus” (Alexander v. Choate, 469 U.S. 287, 105 S. Ct. 712, 83 L. Ed. 2d 661 [1985]). For example, a restaurant owner who fails to provide a wheelchair ramp to the restaurant’s entrance is more likely to be guilty of failing to consider the needs of patrons than of expressing a specific dislike of wheelchair users. Whatever its roots, discrimination impedes those with disabilities from obtaining jobs that they are qualified to perform; access to some buildings and modes of transportation; and the indepen- dence and dignity that nondisabled peopl e take for granted. The U.S. Constitution provides little relief. Courts have held that mentally and phy- sically d isabled persons do not f all within a suspect or qua si-s uspect class ( i.e., classes s ubjecte d to a history of purposeful unequal treatment or politi- cal p owerlessness). Thus, under the Constitution’s EQUAL PROTECTION clause, courts review government action affecting disabled people without the heightened or STRICT SCRUTINY afforded suspect or quasi-suspect classes formed by race o r religion. This lack of distinct constitutional protec- tion has resulted in legislative action. Following a concerted lobbying effort by and on behalf of individuals with disabilities, Congress in the late 1960s and early 1970s passed the first federal laws designed to protect disabled persons. Lob- bying continued when these laws proved to be inadequate owing to their limited coverage. Then, in 1990, Congress passed the much-heralded Americans with Disabilities Act (ADA) (42 U.S. C.A. §§ 12101–12213), legislation with a much broader application and a fair amount of contro- versy over the relative cost of its effectiveness. Rehabilitation Act of 1973 The Rehabilitation Act of 1973 (19 U.S.C.A. §§ 791, 793, 794) prohibits disability discrimina- tion by federal agencies, federal contractors, and other recipients of federal financial assistance. Types of prohibited discrimination include employment, education, building accessibility, and health, welfare, and social services. Courts have held that private individuals may file actions under the Rehabilitation Act against federal employers or against recipients of federal finan- cial assistance; the action need not be brought by a government entity. A PLAINTIFF who proves that a federal employer discriminated intentionally in violation of the Rehabilitation Act may receive compensatory and PUNITIVE DAMAGES. What constitutes a disability under the Re- habilitation Act is often the source of controversy. Blindness, deafness, diabetes, cardiac problems, mobility impairments, and chronic fatigue syn- drome have been recognized as physical impair- ments. The U.S. Supreme Court has held that tuberculosis, a contagious disease, is a physical impairment (School Board v. Arline, 480 U.S. 273, 107 S. Ct. 1123, 94 L. Ed. 2d 307 [1987]). Numerous courts have followed the logic in Arline in holding that individuals who have AIDS or who have tested positive for HIV, the virus that causes AIDS, are physically impaired. Courts also have held that alcoholism, anxiety panic disorder, and post-traumatic stress disorder are impairments under the Rehabilitation Act. Prior to the enac tment of the Americ ans wit h Disabilities Act, section 504 of the Rehabilitation Act was the principal fede ral prohibition of discrimination on the basis of disability. Even with the ADA, t he Reha bilitation Act r emains a n important protection for those with disabilities. The ADA expressly excludes from its coverage protection against discrimina tory acts by t he federal government, so t he Rehabilitation Act provides the only private CA USE OF ACTION for disability discrimi- nation by federal employers and agencies. The Rehabilitation Act also remains an alternative means of remedying discrimination even when a plaintiff concurrently invokes ADA protection. Individuals with Disabilities Education Act The Individuals with Disabilities Education Act (IDEA) (20 U.S.C.A. §§ 1400–1485) requires states to provide a free, appropriate public education to children who are disabled. Formerly known as the Educatio n of the Handicapped Act or the Education for All Handicapped Children Act, the law was established in 1975 in response to studies showing that more than half of all disabled children were receiving an inappropriate public education, and about one- eighth of those children were simply excluded from public education altogether. More than six million children had received special education due to the provisions of IDEA as of 2006. IDEA requires states seeking federal finan- cial assistance for education to develop plans ensuring disabled children a free education that meets their needs. IDEA covers children ages three to 21 who have educational disabilities, in other words, mental retardation; hearing, speech, or language impairments; visual GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 458 DISABILITY DISCRIMINATION impairments; serious emotional disturbances; orthopedic impairments; autism; trau matic brain injuries; and specific learning disabilities, and as a result of such conditions require special education and related services such as trans- portation to and from school. The act does not, under normal circumstances, cover a child who is nearsighted and needs glasses or a child who walks with a leg brace; many children with minor disabilities can be educated without special attention. Each child covered by IDEA is entitle d to have an individualized educational program (IEP) developed jointly by the child’s parents and school personnel. The IEP describes the child’s abilities and needs and outlines educa- tional placement and services that will address the listed needs. IDEA contains procedural safeguards designed to ensure that parents can participate in the IEP process and have methods of recourse if they disagree with educators ab out their child’s education. Finally, IDEA supports the integration of disabled children by requiring that they re- ceive their education in the least restrictive environment. The goal of this requirement is to keep children with disabilities in regular public school classrooms to the extent possible. Only when a satisfactory education cannot be achieved in regular classes, even with the use of supplementary aids and services, may a dis- abled child be removed from regular classes. In many cases, children with disabilities are mainstreamed—placed in a regular educational setting—for part of their school day and re- moved to a special-needs setting for the other part. Depending on the disability, children may be mainstreamed into certain academic classes or simply during lunch, during study hall, or on the school bus. Architectural Barriers Act The Architectural Barriers Act (ABA) (42 U.S.C. §§ 4151 – 4157) requires that federally owned, leased, or financed buildings be accessible to disabled persons. Originally enacted in 1968, this law requires each of four federal agencies—the DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, the DEPARTMENT OF DEFENSE,theGENERAL SERVICES ADMINISTRATION , and the Postal Service—to pro- mulgate design, construction, and alteration standards for buildings within its jurisdiction. The coverage and the effectiveness of the ABA are limited. The act encompasses the subway system in Washington, D.C., as well as (1) structures that the federal government constructs or alters; (2) structures that the federal govern- ment leases; and (3) structures that depend on federal grants or loans for their design, construc- tion, or alteration. If a federal agency is housed in a building that was constructed by the federal government prior to the ABA’s original enact- ment date in 1968 and that building is not altered, it need not be accessible to disabled individuals under the ABA. Further, when structures covered by the ABA are altered, only the altered portion need be made accessible. Thus, an altered wing of a building may have elevators, wheelchair ramps, and accessible rest rooms, whereas stairs in front of the building’s entrance render the building inaccessible to wheelchair users. Perhaps the most obvious shortcoming of the ABA’s effectiveness is that it covers only buildings that are owned, leased, or financed by the U.S. government. Even after the ABA’s enactment, individuals with disabilities remained challenged by the many inaccessible buildings not covered under it. The Individuals with Disabilities Education Act requires that states provide a free and appropriate public education to children who are disabled. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION DISABILITY DISCRIMINATION 459 Americans with Disabilities Act Despite the efforts of Congress, until 1990 no federal law outlawed most of the disability discrimination by employers, owners of places of public accommodation, and program admin- istrators. During the late 1980s, two-thirds of employable, working-age, disabled persons in the United States had no jobs, and many of those who were employed held a job far below their actual capabilities. In the United States in 1990, more than 8 million persons with disabilities who wanted to work were unable to find jobs and were forced to live on welfare and other government subsidies funded by taxpayers. Disabled individuals faced more obstacles when it came to transportation. Because dis- abilities often prevent people from driving cars, many with disabilities must rely on buses, trains, and subways. As of 1990, very few public modes of transportation were accessible to those with disabilities. That same year, Congress passed the Americans with Disabilities Act in the hopes of alleviating day-to-day problems faced by those with disabilities. Employment Discrimi nation and the ADA Titles I and II of the ADA prohibit employers, employment agencies, labor organizations, and jointlabor-managementcommittees,inthepri- vate sector and in state and local governments, from discriminating on the basis of disability. At the ADA’s effective date in July 1992, the act covered private employers with 25 o r more employees; since July 1994 the act has covered private employers with 15 or more employees. All state and local government employers are covered, regardless of their number of employees. The EQUAL EMPLOYMENT OPPORTUNITY COMMIS- SION (EEOC) is the federal agency charged with overseeing the employment-discrimination pro- visions of the ADA. That agency administers complaints and enforces the ADA. The act also provides that its powers, remedies, and proce- dures may be invoked by the EEOC, the U.S. attorney general, and any perso n alleging illegal discrimination pursuant to the ADA or its underlying regulations. Any party seeking redress for ADA-prohibited discrimination must ex- haust certain administrative remedies before instituting a lawsuit. The employment discrimination outlawed by the ADA may take one of several forms explicitly defined by the act: (1) limiting, segre- gating, or classifying job applicants or emplo- yees in a way that adversely affects the status or opportunities of a disabled individual; (2) entering into a contract or business arrangement that has the effect of discriminating against a disabled individual; (3) implementing adminis- trative procedures or criteria that have the effect of discriminating against a disabled individual; (4) denying a disabled person equal jobs or benefits; (5) failing to make reasonable accom- modations to allow those with disabilities to perform their job in the workplace; (6) using criteria that screen, or tend to screen, disabled individuals from the workplace; and (7) admin- istering employment tests for the purpose, or partial purpose, of measuring a job applicant’s disabilities. In determining whether illegal discrimination has occurred under the ADA, it is irrelevant that the employer did not intend to discriminate. But discrimi natory actions are permissible if they are job related and necessary for the business and if the required job per- formance cannot be accomplished with reason- able accommodation. Reasonable accommodation can be modifi- cations or adjustments to the job application process, to the work environment, or to the manner or circumstances under which the job is performed. The ADA does not require an employer to reasonably accommodate an em- ployee who does not make his or her disability known to the employer, and unless it is obvious, the employer may legally require documented proof of a disability before accommodating it. Title II of the Americans with Disabilities Act requires state and local governments to ensure that modes of public transportation—such as this Oklahoma City Metro Transit bus—are accesible to those with disabilities. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 460 DISABILITY DISCRIMINATION Examples of reasonable accommodation include making work areas and nonwork areas such as lunchrooms and restrooms, accessible; modify- ing work schedules; modifying equipment such as computers and desks; and providing inter- preters for blind or deaf workers. An accom- modation that imposes an undue hardship, causing the employer significant difficulty or expense, is not a reasonable accommodation. An accommodation that fundamentally alters the business is also not reasonable. For example, a nightclub would not be forced to provide bright lighting for a visually impaired employee, because bright lighting would significantly alter the nightclub’s business. An employer is not re- sponsible for providing personal items of ac- commodation such as eyeglasses, leg braces, and prostheses, nor is an employer responsible for accommodating current users of illegal drugs. The ADA provides some protection for rehabili- tated drug users and rehabilitated and non- rehabilitated alcoholics, provided that the employees do not threaten the employer’sprop- erty or the health and safety of others in the workplace. Nevertheless, in Raytheon Co. v. Hernandez (540 U.S. 44, 124 S. Ct. 513, 157 L. Ed. 2d 357 [2003]), the U.S. Supreme Court con- cluded that an employer could refuse to rehire a former drug addict who violated workplace rules. The ADA does not require employers to accommodate every individual with a disability. Only qualified individuals with disabilities— disabled individuals who can perform, with or without reasonable accommodation, the job’s essential functions—are protected from dis- crimination. Two factors are involved in the determination of whether a disabled individual is qualified. First, the employer must determine whether the individual satisfies the job prerequi- sites at the time of the hiring decision. This determination should not be based on specula- tive fears that the employee will not be able to function on the job or that the employer’s insurance premiums will rise. Second, the employer must determine whether the individual can perform the job’sessentialfunctionswithor without reasonable accommodation. The essen- tial functions of a job are tasks that are fun- damental as opposed to marginal. Wr itten job descriptions are frequently considered relevant evidence of essential functions. To ensure that employers do not consider a person’s disability at the time of hiring, the ADA prohibits employers from inquiring about disabilities or conducting me dical examinations of prospective employees before hiring them. It is illegal to ask questions about medical history, prior workers’ compensation claims, and over- all health before a hiring decision is made. The employer is permitted to inquire about the applicant’s abilities as they relate to essential or nonessential job functions—although refusing to hire an applicant because of his or her inability to perform a nonessential job function is prohibited. Upon extending a job offer, the employer may require the prospective worker to submit to a medical examination, provided that all prospective work ers face the same requirement. In fact, a job offer may be conditioned upon the results of the examination, and the employer may RESCIND the offer if the examination indicates that the prospective worker would pose a direct threat to health or safety in the workplace or that he or she would not be able to perform the job’s essential functions even with reasonable accommodation. The ADA does not consider tests for illegal drugs to be within its definition of a medical examination; therefore, before extending a job offer, employers may test applicants for illegal drugs, but not prescription drugs or alcohol. An employer may legally test for HIV only after an employment offer has been extended. Even then, the employer may not fire or refuse to hire an individual because of that person’s HIV status, unless such discrimination is both related to the job and necessary for the business. When an employer violates the ADA, the AGGRIEVED PARTY usually is entitled only to equitable relief, such as a court order requiring the construction of wheelchair ramps or the provision of voice-activated computers. Only when the emplo yee shows intentional discrimi- nation may compensatory or punitive damages be awarded. Where the dispute involves the provision of a reasonable accommodation, and the employer made GOOD FAITH efforts to make reasonable accommodation, the court may not award money damages; it may award only equitable relief. Public Accessibility and the ADA Title II of the ADA requires that state and local govern- ment programs and activities be accessible to those with disabilities. Title III of the ADA applies the same requirement to certain private entities that own, lease, or operate places of public accommodation: (1) hotels, motels, and GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DISABILITY DISCRIMINATION 461 certain other places of lodging; (2) restaurants, bars, and other establishments that serve food or drink; (3) theaters, stadiums, concert halls, and other places of exhibition or entertainment; (4) auditoriums, convention centers, and lecture halls; (5) retail or rental establishments such as grocery stores, bakeries, shopping cen ters, and hardware stores; (6) self-service laundries, dry cleaners, banks, hair salons, travel services, shoe repa ir services, gas stations, law of fices, accounting offices, pharmacies, doctors’ offices, hospitals, and other service establish- ments; (7) public transit station s and depots; (8) museums, libraries, and galleries; (9) parks, zoos, and other places of recreation; (10) private schools; (11) daycare centers, homeless shelters,foodbanks,andother social-service establishments; and (12) health clubs, gymna- siums, bowling alleys, g olf courses, and other places of exercise or recr eation. The ADA does not limit its coverage to the size of the public accommodation; if a private e ntity fits into one of the twelve des criptive categories, it must comply with the ADA accessibility requirements. The ADA does exempt from its coverage some private clubs and religious entities. When a private entity falls within a class of public accommodation, it mu st provide reason- able modifications in its practices, policies, or procedures, or auxiliary aids and services, for those with disabilities, unless such modifica- tions would fundamentally alter the nature of the entity or would result in an undue burden of significant difficulty or expense. Title III requires only that those with disabilities be given equal opportunities to achieve the same results as nondisabled individuals. For example, a cloth- ing store need not print price tags in Braille so long as a sales clerk is available to read the price tags to a blind shopper. Auxiliary aids, such as closed-captioned televisions for hearing- impaired hotel guests, are required, but this provision is often flexible. Thus, the owner or operator of a public accommodation may often determine the type of auxiliary aid to assist the disabled individual, provided that the chosen aid is effective. Title III also requires the owners and operators of public accommodation in existing facilities to remove structural, architectural, and communication barriers when such removal is “easily accomplishable and able to be carried out without mu ch difficulty and expense” (42 U.S.C. § 12181[9]). To determine whether barrier removal is readily achievable, courts look at the nature and cost of the action needed; the number of people employed at the facility and its financial resources; the action’seffectonthe facility; and the size, nature, type, and financial resources of the covered entity. Under Title II, state and local governments must remove barriers unless the removal would cause a fundamental alteration to the program or activity, or unless it would cause the government entity an undue financial and administrative burden. A private individual may enforce the provi- sions of Title III, as may the U.S. attorney general. To enforce the provisions of Title II, a private individual may file an administrative complaint with the appropriate federal agency (usually the agency that provides federal fund- ing to the public entity that is the subject of the complaint) or the U.S. DEPARTMENT OF JUSTICE,or the individual may file a federal lawsuit. On May 29, 2001, the U.S. Supreme Court ruled 7–2 that federal disability rights law entitled professional golfer Casey Martin to ride a golf cart between shots while competing in PGA Tour events (PGA Tour, Inc. v. Martin, 532 U.S. 661, 121 S. Ct. 1879, 149 L. Ed. 2d 904 [2001]). In reaching its decision, the Court addressed two distinct legal issues, ruling that the PGA tour is a “public ac- commodation” subject to ADA requirements and that under those requirements Martin’s use of a cart was a “reasonable modification.” The decision was the first high court case to interpret the non-discrimination mandate of Title III of the ADA. The ADA and Public Perception Many indi- viduals with disabilities credit the ADA with helping them to overcome the special challenges that they face from day to day. From the visually impaired social worker who is able to take his licensing test in Braille to the wheelchair user who is able to park her car just a few yards from her office’s entrance, the ADA has helped many disabled people to become fully functioning members of society. But not everyone heralds the act, particularly when the price of compli- ance outweighs the legislation’s effectiveness. Business owners complain that they have to make their buildings accessible even when those buildings are never used by disabled individuals. Between 1990 and 1995, local governments within Orange County, Florida, spent more than $2 million on architectural GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 462 DISABILITY DISCRIMINATION changes to make buildings accessible. The city of Winter Park, Florida, spent approximately $35,000 to make a new tennis facility that would be accessible to the disabled, yet the facility’s manager reported that only one disabled person used the building in the first year after it opened. Other critics of the ADA contend that the law is draining administrative and legal resources. During the first three years following the effective date of the ADA’s employment provisions, the EEOC reported a 25 percent increase in its workload owing to ADA-related complaints. About 20 percent of those complaints were found to be without merit. By the early 1990s, the act had done little to improve the employ- ment RATE for those with disabilities. According to figures by the National Organization on Dis- ability, a private group, as of December 1993, 31 percent of working-age disabled people were employed, whereas in 1986, prior to the ADA’s enactment, 33 percent were employed. This number rose gradually throughout the 1990s and 2000s, though. The Census Bureau in 2008 reported that about 46 percent of disable persons were employed, compared with 84 percent of persons without disabilities. Some legal commentators argue that the act is evolving continually. As courts interpret the law and Congress refines it, the ADA benefits will become clearer. Peter David Blanck, a fellow at the Annenberg Washington Program, has stated that people with disabilities are not the only beneficiaries of the ADA. Businesses have found a new ma rket, and new technology developed to help those with disabilities often helps the nondisabled as well. Restrictions on ADA Application Defining Disability In Sutton v. United Air- lines (527 U.S. 471, 119 S. Ct 2139, 144 L.Ed.2d 450 [1999]), the U.S. Supreme Court held that for the purposes of the Americans with Dis- abilities Act, whether a person has a disability is to be determined based on the person’s condition when that person uses corrective measures. The case concerned two women w ho had been denied positions as airline pilots because they each had extre mely poor vision when they were not wearing glasses. The Court held that because the women had perfect vision when wearing glasses, they were no t disabled and thus not protected by the ADA. The court stated that “if a person is taking measures to correct for, or mitigate, a physical or mental impairment, the effects of those measures, both positive and negative, must be taken into account when judging whether that person is substantially limited in a major life activity and thus disabled under the [ADA].” That is, to determine whether someone is disabled, ask whether her physical or mental impairment, when mitigated by medication or other correc- tive devices, substantially limits her ability to perform major life activities. In Toyota Motor Manufacturing v. Williams (534 U.S. 184, 122 S. Ct. 681, 151 L. Ed. 2d 615 [2002 ]), the high court further narrowed the standard for establishing that one has a disability covered under the ADA. In that case, Ella Williams, an assembly line worker in a Toyota automobile-manufacturing plant, de- veloped severe carpal tunnel syndrome from her job. Her physician imposed limitations on her manual activities, disqualifying her from most of the assembly jobs in the plant. Toyota eventually accommodated her by assigning her to a lighter-duty unit but later required her to rotate to an additional job station, where she had to work at regular intervals with her hands and arms above shoulder height. Her disabling symptoms reappeared and worsened, but her request to be returned to her original accom- modation was denied. She became unable to work and lost her job soon afterward. The SOURCE: U.S. Census Bureau, Americans with Disabilities: 2005, published December 2008. Persons with Disabilities, 2005 a Population refers to the total civilian noninstitutionalized resident population. Total Male Female Percentage of total U.S. population a Severe disability Minor disability 0 5 10 15 20 12.0 6.7 10.6 6.7 13.4 6.7 There were approximately 54.4 million Americans with disabilities in 2005, or 18.7% of the U.S. population. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PER- MISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION DISABILITY DISCRIMINATION 463 court ruled that under the ADA, the inability to perform occupation-specific tasks does not necessarily mean that employee is substantially limited in performing a major life activity. Both decisions were criticized by disability rights advocates as too restrictive. Because the Court based its rulings on statutory interpreta- tion, Congress had the ability to explicitly OVERRULE the interpr etations by amending the ADA. This occurred when Congress passed the Americans with Disabilities Act Amendments Act of 2008 (Pub. L. 110-325). The law dealt specifically with the Sutton and Toyota rulings. In its findings to support the 2008 amend- ments, Congress rejected the requirement in Sutton that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures. It also rejected the Court’s reasoning with regard to coverage under the third prong of the definition of disability. Congress stated that it was reinstating the reasoning of a prior Supreme Court case, which set forth a broad view of the third prong of the definition of handicap under the Rehabili tation Act of 1973. As for Toyota, Congress stated in its findings that the decision wrongly narrowed the broad scope of protection intended to be afforded by the ADA. The Court had interpreted the term “substantially limits” to require a greater degree of limitation than was intended by Congress. The amendment was intended in part to reject standards enunciated by the Supreme Court in Toyota that the terms “substantially” and “major” in the definition of disability under the ADA “need to be interpreted strictly to create a demanding standard for qualifying as disabled” and that to be substantially limited in performing a major life activity under the ADA “an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.” Congress concluded that the ruling created an inappropriately high level of limitation necessary to qualify under the ADA. Congress stated that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations and to convey that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis. Small Businesses Congress enacted the ADA with some concerns that the statute would drive up costs for small businesses by requiring ex- pensive accommodations for disabled employees. Despite this general policy goal, Congress failed to precisely define who qualified as an employee under the act. In the case of medical, legal, and accounting firms, which are usually organized as professional corporations, this definitional issue has produced a series of court cases. Doctors have argued that as shareholders of the corpo- ration, they cannot be classified as employees and, therefore, cannot be counted toward the threshold of 15 employees for ADA purposes. In Clackamas Gastroenterology Associates, P.C. v. Wells (538 U.S. 440, 123 S. Ct. 1673, 155 L. Ed. 2d 615 [2003]), the Supreme Court agreed with this argument, thereby removing thousands of small businesses from the reach of the ADA. Damage Limitations In Barnes v. Gorman (536 U.S. 181, 122 S. Ct. 2097, 153 L. Ed. 2d 230 [2002]), the U.S. Supreme Court declared that persons excluded by local governments from programs funded with federal dollars may not receive punitive damages, no matter how eg regious the discrimination t hat they have suffered. In that case, Jeffrey Gorman, who was confined to a wheelchair, was arrested one night in Kansas City, Missouri, and transported in a city police van that did not have the right equipment to take him safely. He sustained serious injuries, which prevented him from further gainful employment. At trial, the jury learned that the police department had failed to comply with the Rehabilitation Act since its passage in 1973, and even worse, it had done nothing after Gorman was hurt to prevent further injuries. A federal appeals court upheld the jury’sdamagesawardofmorethan$2million. Local officials appealed the punitive damages portion, about half the total award, to the U.S. Supreme Court, arguing that punitive damages for disability discrimination could bankrupt city governments. Several groups, including AARP, pointed out that in Gorman’scase,andother instances of egregious, intentional discrimina- tion, punitive damages serve the worthy goals of deterring illegal conduct and compensating victims for their unneeded suffering. The U.S. Supreme Court reversed in a decision reflecting that neither the Rehabilitation Act nor the ADA permits an award of punitive damages in cases of access to public services. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 464 DISABILITY DISCRIMINATION Eleventh Amendment Issues In University of Alabama v. Garrett (531 U.S. 356, 121 S. Ct. 955, 148 L. Ed. 2d 866 [2001]), respondents Garrett and Ash filed separate lawsuits against petitioners, Alabama state employers, seeking money damages under Title I of the ADA. In an opinion disposing of both cases, the district court found that the ADA exceeds Congress’s authority to abrogate the state’s ELEVENTH AMENDMENT immunity. The Eleventh Circuit reversed on the ground that the ADA validly abrogates such immunity. The U.S. Supreme Court held that suits in federal court by state employees to recover money damages by reason of the state’s failure to comply with Title I of the ADA are barr ed by the Eleventh Amendment. Despite the cases that have limited the ability of Congress to revoke state SOVEREIGN IMMUNITY, the Supreme Court has upheld suits under the ADA against state notwithstanding Eleventh Amendment arguments. In United States v. Georgia (546 U.S. 151, 126 S. Ct. 877, 163 L. Ed. 2d 650 [2006]), the Supreme Court ruled that a Georgia state prison inmate who was a para- plegic could pu rsue a Title II damages lawsuit against the state of Georgia for the conditions of the confinement. FURTHER READINGS Bagenstos, Samuel R. 2009. Law and the Contradictions of the Disability Rights Movement. New Haven, Conn.: Yale Univ. Press. Colker, Ruth. 2009. When Is Separate Unequal? A Disability Perspective. New York: Cambridge Univ. Press. Gaskill, Ricca. 1994. Americans with Disabilities Act: An Analysis of Developments Relating to Disability Law. New York: Practising Law Institute. Jones, Nancy Lee. 2003. The Americans with Disabilities Act (ADA): Overview, Regulations, and Interpretations. New York: Novinka Books. Poston, Sarah. 1994. “Developments in Federal Disability Discrimination Law: An Emerging Resolution to the Section 504 Damages Issue.” 1992/1993 Annual Survey of American Law 419. Russo, Charles J., and Allen G. Osborne Jr. 2009. Section 504 and the ADA. Thousand Oaks, Calif.: Corwin Press. CROSS REFERENCES Acquired Immune Deficiency Syndrome; Damages; Equity. DISABILITY INSURANCE See OLD-AGE, SURVIVORS, AND DISABILITY INSURANCE. DISAFFIRM Repudiate; revoke consent; refuse to support former acts or agreements. Disaffirm is commonly applied in situations where an individual has made an agreement and opts to cancel it, which he or she may do by right—such as a minor who disaffirms a contract. A disaffirmance is a denial or nullification of the existence of something, as opposed to a revocation, which is the breaking of an existing agreement. DISALLOW To exclude; reject; deny the force or validity of. The term disallow is applied to such things as an insurance company’s refusal to pay a claim. DISARMAMENT See ARMS CONTROL AND DISARMAMENT. DISASTER RELIEF Monies or services made available to individuals and communities that have experienced losses due to disasters such as floods, hurricanes, earth- quakes, drought, tornadoes, and riots. The term disaster has been applied in U.S. law in a broad sense to mean both human-made and natural catastrophes. Hu man-made cata- strophes include civil disturbances such as riots and demonstrations; warfare-related upheavals, including those created by guerrilla activity and TERRORISM; refugee crises involving the forced movements of people across borders; and many possible accidents, including trans- portation, mining, pollution, chemical, and nuclear incidents. Natural disasters are divided into three categories: meteorological disasters, such as hur- ricanes, hailstorms, tornadoes, typhoons, snow- storms, droughts, cold spells, and heat waves; topological catastrophes, such as earthquakes, avalanches, landslides, and floods; and biologi- cal disasters, including insect swarms and disease epidemics. A disaster may also be defined in sociologi- cal terms as a major disruption of the social pattern of individuals and groups. Disaster relief efforts are typically an exam- ple of federalism at work, as local, state, and national governments take on varied responsi- bilities. Disaster relief has historically been considered a local responsibility, with the federal government providing assistance when local and state relief capacities are exhausted. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DISASTER RELIEF 465 Most states have agencies that coordinate disaster relief and planning. A majority of states have statutes that define appropriate procedures for disaster declarations and emergency orders. Such statutes also empower relief agencies to utilize state and local resources, commandeer private property, and arrange for temporary housing during an emergency. The federal government has played an increasingly influential role in disaster response and preparedness. In fact, as federal disaster assistance grew in the late twentieth century, it became a unique form of aid to states and localities. Significant amounts of money are often made available to a disaster area for years after the disaster has occurred. At all levels of governme nt disaster relief is carried out under the authority of an executive official: a city mayor, a state govern or, or the nation’s president. In the last instance, federal disaster legislation gives the president wide powers. The president decides what situations may be declared disasters and dictates the extent of federal assistance. In most situations, state governors are the appropriate officials to ask the president for federal assistance. Under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) (Pub. L. No. 93-288, 42 U.S.C.A. § 5121 et seq.), the president may declare a catastrophe either an emergency or a major disaster. This classifi- cation is not necessarily indicative of the severity of the event. Instead, the designation determines the extent of federal aid available for the particular calamity. In general, more federal funds are available for major disasters than for emergencies. For the president to declare either an em ergency or a major disaster, the governor of the affected state must announce that the catastrophe is of such severity that state re- sources cannot effectively cope with it. After a formal DECLARATION has been made at the federal level, all authority for disaster relief operations descends from the president, through the FEDERAL EMERGENCY MANAGEMENT AGENCY (FEMA), and down to other agencies engaged in relief operations. First established in 1979, FEMA coordinates federal efforts related to natural disaster planning, preparedness, res- ponse, and recovery. FEMA fun ds emergency programs and works closely with state and local governments. Since 2003 FEMA has been a component of the HOMELAND SECURITY DEPART- MENT (DHS). After the president declares an emergency or major disast er, FEMA and other agencies within DHS are responsible for implementing the National Response Framework. DHS established the National Response Framework (NRF) in 2008 to replace the National Response Plan. The NRF involves cooperative effort between the federal government, nongovernmental orga- nizations, and the private sector. The NRF organized responsibilities according to 15 emer- gency support functions (ESFs) that allow the DHS to coordinate the efforts of federal depart- ments and agencies, along with other private and nongovernmental entities. The ESFs include: transportation; communications; public works and engineering; firefighting; mass care, emer- gency assistance, housing, and human services; logistics management and resource support; public health and medical services; search and rescue; oil and hazardous material response; agriculture and natural resources; energy; public safety and security; long-term community re- covery; and external affairs. Congress and state legislatures may also make assistance available in times of disaster. For example, the Disaster Assistance Act of 1988 (7 U.S.C.A. §§ 1421, 1471; 26 U.S.C.A. § 451) made $5 billion available to farmers during a severe drought. Farmers who had lost more than 35 percent of their crops could receive up to $100,000 to cover 65 percent of their losses over an initial threshold. When Hurricane Hugo hit American Red Cross volunteers in Phoenix, Arizona, assist evacuees from New Orleans during Hurricane Katrina. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 466 DISASTER RELIEF the southeastern coastal states in 1989, Congress approved $1.1 billion in aid six days later. Congress has also authorized other agencies to provide disaster assistance. The SMALL BUSINESS Administration’s Office of Disaster Assistance supplies loans to businesses that suffer economic losses owing to natural disasters. The AGRICULTURE DEPARTMENT provides emergency loans to eligible farmers and ranchers for losses owing to natural disasters. It may also give farmers cost-sharing assistance in addition to the use of land that was previously set aside for conservation purposes. The U.S. government’s Agency for International Development makes disaster relief and planning available to foreign countries. Private organizations, including the Red Cross and the Salvation Army, play a significant role in disaster relief. In 1905 Congress offi cially recognized the Red Cross and its role in responding to significant crises (36 U.S.C.A. § 1), and all subsequent federal disas ter laws have renewed this recognition. The Red Cross makes a careful distinction between its human- itarian relief activ ities, including the provision of fo od and shelter, and activities that it believes are best handled by government. Experts on disaster relief have increasingly called for a greater emphasis on prevention as opposed to relief. Plans for improved disaster preparedness often call for a greater use of new technologies, including satellite and radar tech- nologies that aid in the early detection of potential disasters. Before 1950, disaster response was charac- terized by an ad hoc, or case by case, approach. Relief involved a reaction to specific crises with little planning or preparation for future disas- ters. Then, as now, it was initially activated by Lives Lost in Major U.S. Weather Disasters, a 1980 to 2008 SOURCE: U.S. National Oceanic and Atmospheric Administration, National Climatic Data Center, “Billion Dollar U.S. Weather Disasters,” available online at http://www.ncdc.noaa. g ov/oa/reports/billionz.html (accessed on Au g ust 12, 2009). Number of lives lost 500 400 300 200 100 0 1985 1988 b 67 1995 1998 13 2000 46 2001 2002 28 2003 131 2004 168 99 2005 2006 c 95 2007 c 22 396 2008 274 10,000 7,000 1990 7,500 1980 b 10,000 2,002 Year a Weather-related disasters costing $1 billion or more, including hurricanes, tropical storms, floods, droughts, blizzards, severe freezes, ice storms, and wildfires. b A drought/heat wave occurred across the central and eastern United States during the summer months. c Complete data was not available. 140 ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION DISASTER RELIEF 467 . IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION DISABILITY DISCRIMINATION 459 Americans with Disabilities Act Despite the efforts of Congress, until 1990 no federal law outlawed most of the. RESOURCES. REPRODUCED BY PER- MISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION DISABILITY DISCRIMINATION 4 63 court ruled that under the ADA, the inability to. an award of punitive damages in cases of access to public services. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 464 DISABILITY DISCRIMINATION Eleventh Amendment Issues In University of Alabama