Update: In September 2008, the US Congress passed the ADA Amendments Act of 2008, which clarified the legal definition of "disability" and restored legal protections that had been weakened through various court decisions. This new law specifically addresses the issues raised in the commentary below.
The new law, which takes effect January 1, 2009, states that the definition of "disability" should be construed in favor of broad coverage of individuals under the ADA.
The law rejects the US Supreme Court precedents which have narrowed the definition of disability and scope of legal protections, such as the decision described below.
This page has been preserved for archiving purposes, but it is not a current statement of the law and should not be relied on for any use other than historical research.
When is a Disability Not a Disability?
By Abigail Marshall, DDAI Webmaster.
(Originally posted 26 June 1999)
The United States Supreme Court has restricted the reach of the Americans with Disabilities Act (ADA) to the point where the law has no point. On Tuesday, June 22, 1999, the Court said that if a person has a potentially disabling condition which can be corrected, it is not a disability under the law. Hence, the person has no legal protection. An employer can refuse to hire that person, deny a promotion, or even fire the person for the mere fact of having the correctable -- and corrected -- condition.
Sound crazy? Here's what the court decided:
- An airline carrier could refuse to hire two near-sighted pilots, even though their vision could be corrected to 20/20. Since their condition could be fixed, the court said the law didn't protect them. Since the law didn't protect them, the airline company said: No job.
- A delivery company fired a mechanic who had high blood pressure. With medication, the blood pressure could be controlled. Since the medical condition was treatable, the court said the law didn't protect the man. Since the man had the condition, the delivery company said: No job.
So what does this mean for dyslexic people?
We're afraid that this means that, if you live in the U.S., you are trouble.
You have a learning disability. The ADA has been interpreted in the past to protect you. For example, the EEOC regulations specified: "Dyslexia, a learning disability, is an impairment for ADA purposes." A U.S. Court of Appeal (a lower court than the Supreme Court) had ruled that a dyslexic law graduate was protected by the law, and could ask for extra time to complete the state bar examination.
But the Supreme Court's decision will undermine many of these protections. The next time someone goes to court, they are going to have to prove that a learning disability is something that can not be corrected. Already, the Supreme Court has instructed the lower court in the case involving the dyslexic law student to review and reconsider its ruling
Now, our whole purpose in running this web site is to provide people with information about how to correct dyslexia. We use a learning method that seems to help a lot of dyslexics. A quick search of the internet will yield many other web sites and organizations that also provide information to dyslexics about ways to overcome their problems.
Our method does not cure dyslexia, and we are careful never to use the word "cure" in connection with our work. That's because the dyslexia does not go away. What we do is provide alternative learning strategies that help people overcome their problems.
In our mind, the fact that we can provide these strategies shouldn't effect a person's ability to avoid job discrimination, or get reasonable accommodations from their employer. 'Reasonable accommodations' might mean the right to take an employment-related test orally, rather than in writing. Or, it could be a technological solution, such as the right to use a computer dictation system on the job, rather than being expected to type.
But now we're worried. Because what the Supreme Court is telling you as a dyslexic person is: Don't get help. If dyslexia is a permanent, immutable condition that will forever limit your ability to read, write, or spell -- then maybe you will still be able to get accommodations under the ADA. You can work as a day laborer and never be required to take a written test, because you are dyslexic.
But if you take the initiative to overcome your problems - if you work to become a better reader or writer - then you are in trouble. You might have noticed that all the best-paying jobs these days require you to be literate. So, rather than wallow in self-pity, maybe you followed the program in The Gift of Dyslexia or maybe you enrolled in an adult literacy class in your community, and worked your tail off, and now you can read and write. By all your hard work, you have actually developed the skills and ability to do everything your job requires. Sure, you need the help of a spell-checker – but that's standard equipment on all computers these days.
What happens, according to the Supreme Court? Now, your boss can fire you, or refuse to promote you, just because you happen to be 'dyslexic' -- even if you are doing your job well.
So what can you do? If the Supreme Court's interpretation stands, then there is only one safe course: go back into the closet. Don't tell your boss that you are dyslexic. Lie about it. And count yourself lucky for having an invisible disability. Because, according to the U.S. Supreme Court, the law won't protect you any more.
We're sorry. We wanted you to be able to achieve more, and to take pride in your abilities. We wanted you and your employers to know that dyslexics have abilities that are worth cultivating. We wanted you to recognize your talents as gifts, and to know that with strength and determination, you can overcome your limitations. We wanted your employers to know that it is worth their while to invest in adaptive technology, such as a computer dictation system, or extend other accommodations to you, to have the benefit of your keen mind on the job. But the Supreme Court has spoken.
What can you do?
The ADA is a law, written by Congress. So, write to your representative. Urge that the ADA be amended to prohibit discrimination against individuals based on their having physical or mental conditions (including learning disabilities) that can be corrected. We're not asking for anything special. Just the right to do the jobs that we are capable of doing.