legislation intended to protect disabled workers has empirically failed to do so

(David – professor of sociology @ University of Toronto, Michelle Maroto - professor of sociology @ University of Alberta, and Jennifer Brooks – research associate in the Yang-Tan Institute on Employment and Disability @ Cornell, “The Sociology of Disability-Based Economic Inequality,” Contemporary Sociology 54.1, 2022)

A Disability Rights Backlash In what scholars, legislators, and activists have called perverse understandings of the ADA, federal courts managed to make it especially difficult for victims of employment discrimination to mobilize the law by denying standing to disabled people on the grounds that they are not actually disabled (O’Brien 2001). Similarly, legislative silence on the issue of collective agreements2 carved out a space for courts to interpret reasonable accommodations in unionized workplaces. Historically, the courts ruled that any accommodation seen as violating a collective agreement is an ‘‘undue hardship’’ (Lee 2003; see also Daly-Rooney 1993 on the 1984 Daubert v. USPS case). Even after the landmark ADA, the court’s position was that the ADA did not require an employer to break a collective bargaining agreement to accommodate a disabled worker (see Schoen 1997 on the Eckles v. Consolidated Rail case). Until the 1997 Aka case, courts generally granted summary judgments against plaintiffs with disabilities if they deemed that an accommodation contradicted a collective bargaining agreement or seniority system. However, courts were still reluctant to appear as interfering in collective bargaining agreements (see Lee 2003 on the 2002 U.S. Airways v. Barnett case). Courts effectively framed the debate not as a matter of employer rights versus employee rights, as is often the case in disability antidiscrimination cases, but as one about the collective seniority rights of other employees versus the individual rights of the employee with disabilities.3 This had the unfortunate consequence of pitting the interests of disabled workers against the interests of workers without disabilities (O’Melveny 1993). As Stahlhut (1993:74) argued, ‘‘unions are worried about whether the obligation of reasonable accommodation will allow an employer to circumvent the seniority provisions of a collective bargaining agreement. Management, on the other hand, is perplexed because it needs to know its obligations under the ADA so it can avoid legal liability.’’ The courts have effectively used collective bargaining agreements to limit the options regarding accommodations (Daly-Rooney 1993). The courts have largely decided who qualifies for rights (O’Brien 2001), and those who do are relatively few. Based on twenty years of Supreme Court discrimination cases, Maroto and Pettinicchio (2014b) show that lower courts were actually more inclined to rule in favor of a disabled person, while the Supreme Court was more likely to hear cases in which it overturned those decisions. This was especially the case for disability-based cases compared to race and gender-based discrimination cases. Although conservatives and other detractors of the ADA continued to argue that the law caused unintended harm by disincentivizing hiring people with disabilities through raising the costs of litigation, many in Congress pointed to this judicial resistance in weakening the ADA (Maroto and Pettinicchio 2014b). In response, the ADA Amendments Act (ADAAA), also referred to as the ADA Restoration Act of 2008, directly addressed the Court’s narrow interpretations of the ADA. Yet, the same opposing forces sought to kill or curtail the legislation. For example, at one congressional hearing, a representative from the U.S. Chamber of Commerce testified that the Restoration Act would replace ‘‘the long experience under the Rehabilitation Act of 1973 and the ADA’’ with a ‘‘‘litigation regime’ not focused on the universally lauded goal of full inclusion of qualified individuals with disabilities into the mainstream of American life’’ (Pettinicchio 2019:149). To supporters, though, the ADAAA reified Congress’s intent when it came to the law enacted years prior. In the wake of the ADAAA, there has been a decrease in the number of cases rejected in the pretrial phase based on standing. However, this decrease appears to have coincided with a rise in the number of cases that determined individuals to be ‘‘unqualified’’ for a job (Befort 2010, 2013; Henry 2014). With these continued legal challenges, efforts in Congress to undermine this now thirty-yearold ‘‘emancipation proclamation’’ for disabled Americans persist (e.g., the 2017 ADA Education and Reform Act), coupled with a laxity and unwillingness by administrations to implement the ADA’s provisions.