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Disability Rights CARR CENTER FOR HUMAN RIGHTS POLICY 1 SPRING 2021 ISSUE 008 CARR CENTER FOR HUMAN RIGHTS POLICY HARVARD KENNEDY SCHOOL Disability Rights Reimagining Rights & Responsibilities in the U.S. 2 CARR CENTER FOR HUMAN RIGHTS POLICY Reimagining Rights & Responsibilities in the United States: Disability Rights Carr Center for Human Rights Policy Harvard Kennedy School, Harvard University January 21, 2021 John Shattuck Carr Center Senior Fellow; Former US Assistant Secretary of State for Democracy, Human Rights, and Labor; Professor of Practice, Fletcher School, Tufts University Mathias Risse Lucius N. Littauer Professor of Philosophy and Public Administration; Director for the Carr Center for Human Rights Policy The authors’ institutional affiliations are provided for purposes of author identification, not as indications of institutional endorsement of the report. This report is part of a Carr Center project on Reimagining Rights and Responsibilities in the United States, directed by John Shattuck. The project has been overseen by a faculty committee chaired by Mathias Risse, with the collaboration of Executive Director Sushma Raman, and the support of the Carr Center staff. This research paper was drafted by Katie Stenclik and Kate Williams (RA). The authors are grateful to Michael Blanding and Mayumi Cornejo for editing, and Alexandra Geller for editorial and design. Cover image by Tom Olin. CARR CENTER FOR HUMAN RIGHTS POLICY 3 Table of Contents 3. Overview Setting the Landscape Historical Context 7. Current Policies People with Disabilities and Healthcare People with Disabilities and the Workplace People with Disabilities and Educational Institutions People with Disabilities and Immigration People with Disabilities and Poverty, Housing, and Transportation People with Disabilities and Voting 2 3 . Policy Recommendations 4 CARR CENTER FOR HUMAN RIGHTS POLICY Overview Disabilities include a range of conditions, both visible and invisible, and including physical, mental, and cognitive Nearly 61 million Americans have a disability, making the group impairments—all of which require different types of protection 1 the country’s largest minority. Individuals with disabilities cut against different types of discrimination. These complexities across race, gender, and sexual orientation. Since people with make understanding and advancing disability rights more disabilities are disproportionately older, they have also made challenging. Moreover, people with disabilities continue to face up an expanding share of the general population as the U.S. challenges as a result of policies that affect them both directly 2 population has aged. Unlike other more fixed identities, any and indirectly. For example, policies that make the provision of person can become disabled at any time, due to severe injury, public assistance contingent on employment disproportionately illness, trauma, pregnancy, or simply aging. In fact, while only 11% burden people with disabilities, who are less likely to be of people under ages 18 to 64 reported having a disability in 2017, employed. Additionally, recent policies enacted under the Trump 35% of people ages 65 and over reported having one, illustrating administration have eroded past protections and exacerbated 3 the fluid nature of disability status. barriers to the wellbeing of this population across a range of issue areas, from healthcare to immigration. Renewing rights Despite the prevalence of individuals with disabilities in our for people with disabilities requires both reinstating these culture, both government and American society in general have protections and extending beyond providing equal protections mistreated them for much of our nation’s history, sometimes to affirmatively expanding accommodations to better allow regarding them as “incapable,” “inferior,” or “shameful,” and them to participate meaningfully in all aspects of society. subjecting them to institutionalization and neglect. Starting in the 1970s, a new movement for disability rights led to increased awareness and legislative action, starting with the SETTING THE LANDSCAPE Rehabilitation Act of 1973. That movement culminated in 1990 According to the ADA, a disability is any “physical or mental with the enactment of the landmark Americans with Disabilities impairment that substantially limits one or more major life Act (ADA), which protects people with disabilities as a civil right, activity.”7 Those activities include “caring for oneself, performing and prevents discrimination based on disabilities in all aspects of manual tasks, seeing, hearing, eating, sleeping, walking, public life. standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communication, and working.” While Despite this progress, however, individuals with disabilities the ADA doesn’t name specific disabilities, they include physical continue to face challenges, and oftentimes lack meaningful disabilities such as motor impairment, blindness, and deafness; accommodations to allow them equal access to opportunity mental impairments, psychological disorders, and learning across many facets of life. According to the most recent statistics, disabilities; and chronic illnesses and certain medical conditions approximately 75% of people with disabilities are unemployed,4 such as HIV.8 and even those who are employed earn, on average, less than 70% of the earnings of people without disabilities. People with People covered under the Act include those with a “record of such disabilities are also two and a half times more likely to live an impairment,” even if they no longer have it—such as someone in poverty, and more likely to experience obesity and higher with cancer which is now in remission. They also include those healthcare costs. 5,6 1. “Disability Impacts All of US.” Disability and Health Promotion, Centers for Disease Control and Prevention, U.S. Department of Health & Human Services, 9 Sept. 2019, https://www.cdc.gov/ncbddd/disabilityandhealth/infographic-disability-impacts-all.html. 2. Kraus, L., et. al. 2017 Disability Statistics Annual Report. Institute on Disability, University of New Hampshire, Jan. 2018, https://disability- compendium.org/sites/default/files/user-uploads/2017_AnnualReport_2017_FINAL.pdf. 3. Ibid. 4. “The ADA at 25: Important Gains, but Gaps Remain.” Wharton Business Daily, 7 Aug. 2015, https://knowledge.wharton.upenn.edu/article/the- gaps-that-remain-as-the-ada-turns-25/. 5. Bialik, Kristen. “7 Facts About Americans with Disabilities.” Pew Research Center, 27 July 2017, https://www.pewresearch.org/fact- tank/2017/07/27/7-facts-about-americans-with-disabilities/. 6.Kraus, L., et. al. 2017 Disability Statistics Annual Report. Institute on Disability, University of New Hampshire, Jan. 2018, https://disability- compendium.org/sites/default/files/user-uploads/2017_AnnualReport_2017_FINAL.pdf. 7. “What Is the Definition of Disability Under the ADA?” ADA National Network, https://adata.org/faq/what-definition-disability-under-ada. Accessed 9 Dec. 2020. 8. “Does the Americans with Disabilities Act (ADA) Provide a List of Conditions That Are Covered Under the Act?” SHRM, 5 Nov. 2019, https:// www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/cms_011495.aspx. CARR CENTER FOR HUMAN RIGHTS POLICY 5 “regarded as” having a disability by others.9 For example, a severe employers, schools, landlords, government agencies, and burn victim may not experience any physical impairment, but private businesses to deny them accommodations and access to may be denied employment based on an employer’s discomfort, services. Shockingly, many forms of discrimination against people creating a disability status due to others’ perceptions.10 This remained legal until the passage of the ADA in 1990; and even “regarded as” criteria has also been used to secure disability after its passage, many barriers have remained. The lack of federal coverage for LGBTQ individuals whose sexual and gender identity protections meant very few cases on disability rights came before are not considered protected categories under the ADA, but who the Supreme Court before the 1970s. In the limited cases the may experience a disability in relation to their identity.11 Court judged, however, it upheld mistreatment. In Buck v. Bell (1927), the Court upheld a Virginia law legalizing sterilization Another category of disability is a temporary impairment, such for individuals “afflicted with an hereditary form of insanity or as an accident that substantially limits mobility, which may be imbecility.”16 Following that decision, institutions across the United covered under the ADA Amendments Act (ADAAA)—an expanded States sterilized 70,000 Americans over the rest of that century.17 version passed in 2008.12 Coverage of a temporary disability depends on the length of time and severity of the impairment. For The disability rights movement first emerged following World War example, the ADAAA would not cover a short-term illness like the II, when returning veterans insisted on government rehabilitation flu, but it would cover a severe injury that prevented an individual services and vocational training. Starting in the 1960s, parents from being able to walk for seven months.13 and advocates sought deinstitutionalization and educational opportunities for children with disabilities.18 Finally, in the 1970s, HISTORICAL CONTEXT disability rights activists, inspired by the civil rights movement, pushed for more broad-reaching legislation to end discrimination. The federal
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