JURIST Guest Columnist Michael Waterstone of Loyola Law School Los Angeles says that recent prejudiced comments about autistic and other disabled persons by American talk radio host Michael Savage reflect too-common misunderstandings of disability that warrant Congressional extension of existing legal protections against discrimination...
But Savage's comments demonstrate a point that is more important than the issue of whether he should be fired or not. As the 18th anniversary of the Americans with Disabilities Act approaches, Savage's prejudiced comments show why the statute was originally enacted and why recent Congressional action to amend the statute to make it stronger is needed.
Savage's fairly unimaginative comments represent one snapshot of how people with disabilities have been viewed in this country: as fakers. Other stereotypes include being labeled objects of pity, unproductive drags on society, and even being cursed by some divine power. Congress recognized the collective power of these views when it passed the landmark Americans with Disabilities Act. Explicitly finding that people with disabilities had been marginalized and discriminated against, Congress forcefully stated that people with disabilities should have civil rights commensurate with other citizens. Employers were no longer allowed to refuse to hire people with disabilities because they didn't like or feel comfortable with them. Both public programs and privately owned places that are open to the public had to take steps to become more accessible.
Over time, this law has changed hearts and minds. People are becoming more accustomed to seeing people with disabilities in public spaces or in the employment arena. As always happens, stereotypes and prejudice recede and awareness is raised. We have become a more inclusive society, and our laws have become a model for the world.
But not everything has changed. Although not always expressed in as blatant terms as Michael Savage, whether as a function of outright dislike or more subtle animus, people with disabilities are still too often judged on the basis of their disability instead of their true abilities. Without asking, employers feel that an employee who is blind "simply won't be able to do the job," or a restaurant owner does not feel the need to put down a ramp because "no one with a wheelchair has ever dined here." Judges, too often viewing people with disabilities through a pitying or paternalistic lens, have interpreted the statute in extremely limited ways. Based on unstated fears of letting the law get out of control (perhaps, in Savage's parlance, letting fakers get extra benefits), recent cases have held that people with mental retardation and cancer are not really disabled. Lawmakers and judges have even speculated that under current interpretations, someone with a prosthetic limb might not be considered disabled. This belies Congressional intent and common sense.
This is why Congress is poised to pass a new law clarifying that the Americans with Disabilities Act should be interpreted broadly to provide more individuals with greater protections. Representatives of both the business and disability rights communities have worked hard to find common ground, and this law's prospects for passage are good. Comments like Michael Savage's remind us that prejudice against people with physical and mental disabilities still exists, and, like with race and sex discrimination, we still need the government's help in creating a more just society.
Michael Waterstone is a professor of law at Loyola Law School Los Angeles, where he teaches Disability Rights Law. He is a board member of the Disability Rights Legal Center.