One of the most anticipated decisions of this term will be the three consolidated cases pending in front of the Supreme Court, Bostock v. Clayton County, Altitude Express v. Zarda, and R.G. & G.R. Harris Funeral Homes v. EEOC, which collectively present the question of whether Title VII’s prohibition on discrimination “because of sex” includes discrimination against gay, lesbian, and transgender employees.
Whoever said pandemics were equalizers doesn’t know a thing about disability legal history. It does not take much of a pretext to rollback disability rights. This is because disability rights laws, despite enumerated principles of equal opportunity and civil rights, have always been viewed as “nice to do” and not “must do.” Simply put, society continues to misunderstand disability—what it means, who the category includes or excludes, its relationship to impairment, its valence and construction as an identity. Moral and religious-tinged frames have trumped the perception of disability as a protected class akin to race, gender, or national origin. This view explains Congress’s intent that the Americans with Disabilities Act (ADA) play not only a remedial role for disability discrimination ex post, but also a proactive, ex ante role in upending problematic social norms that treat disability and incapacity as synonymous. Similarly, the perception of disability as a different kind of civil right helps explain the Supreme Court’s interpretive missteps in the infancy and adolescence of the ADA and Congress’s direct reproach and redirection of the Court in the ADA Amendments Act eighteen years later.
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