Exactly 30 years ago today, on July 26, 1990, President Bush proclaimed proudly, “With today's signing of the landmark Americans with Disabilities Act, every man, woman, and child with a disability can now pass through once-closed doors into a bright new era of equality, independence, and freedom." But can they?
The Americans with Disabilities Act (ADA) is the first comprehensive law prohibiting discrimination against people with disabilities. At least 61 million people — more than 25 percent of our population — has a disability. The ADA has resulted in better access for disabled people to frequent restaurants, movie theaters, sports arenas, shopping malls and schools. Local governments and private industry must ensure that buildings, buses and services are accessible and that “effective communication access” is provided for those who need it. Private and public employers now know it is illegal to refuse to hire or promote someone with a disability, and they must provide employees with reasonable accommodations, especially since most workplace accommodations cost very little.
But guaranteeing equality, independence and freedom for people with disabilities must go beyond enacting a law, especially when the law may be misinterpreted by the United States Supreme Court.
In 1999 the United States Supreme Court decided three cases known as the Sutton trilogy, which unduly limited the definition of disability in a way that was not intended by the bipartisan Congress that had enacted the ADA. These Supreme Court decisions resulted in the inappropriate dismissal of numerous cases in which employees were found unqualified as either too disabled to do the job or not disabled enough to be protected by the ADA. Congress reacted swiftly to remedy the court’s misinterpretation of the ADA by enacting the ADA Amendments Act. The ADAAA made clear that courts should apply the definition of disability broadly and directed the Equal Employment Opportunity Commission (EEOC) to revise the applicable sections of the regulations to conform to the law’s broad mandate. It is now time for Congress to act again and instruct the EEOC to amend its regulations to correct the Supreme Court’s decision in the recent case of St. James School v. Biel. The Biel case is one of two consolidated discrimination cases decided by the Supreme Court this term that deny employees civil rights protection in the name of religious freedom.
In the Biel case, the Supreme Court held that Ms. Biel, a teacher who worked at a Catholic elementary school, was not protected by the ADA because she qualified for the “ministerial exception,” carved out by the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church v. EEOC. Under Title I, which covers all employers of at least 15 employees, religious institutions are free to “giv[e] preference in employment to individuals of a particular religion to perform work” and to “require all applicants and employees conform to the religious tenets of such organization.” Yet nowhere does the law give religious institutions the right to deny employees protections under Title I.
Nonetheless, after Ms. Biel was diagnosed with breast cancer, she requested an adjustment to her work schedule as an accommodation so she could receive treatment. The school responded by firing her. She had argued that the “ministerial exception” did not apply to her since she had no religious leadership role and taught mostly secular subjects. Indeed, if Ms. Biel had taught the same subjects at any other private or public school, she likely would have been able to keep her job and get cancer treatment as an accommodation under the ADA.
The Supreme Court, in a majority opinion by Justice Alito, reversed the Ninth Circuit decision and ruled against Ms. Biel. In so doing, the court extended the “ministerial exception” beyond any prior court decision. Under Biel, religious institutions can now dismiss any employee, just because they have a disability. That is precisely the type of discrimination that the ADA was intended to eradicate.
With this decision, churches and all other religious institutions are free to discriminate against employees on the basis of disability, as well as race, age, sex or any other protected trait “for reasons having nothing to do with religion.” As Justice Sotomayor wrote in her dissent, joined by Justice Ginsberg, this case expands “the ministerial exception far beyond its historic narrowness.” Justice Sotomayor continued by characterizing the decision as “profoundly unfair,” noting that the “inherent injustice in the court’s conclusion will be impossible to ignore for long, particularly in a pluralistic society like ours.”
One may assume that the Biel decision will not affect many people. In fact, the case itself received little attention in the mainstream media. But the impact of the court’s decision goes well beyond teachers with disabilities who work in Catholic schools. It means that anyone who works for any religious organization in almost any capacity is no longer protected by the ADA. It is also an affront to anyone with a disability who has ever looked for a job.
For people with disabilities, finding a job is not easy. Only about 19 percent of people with disabilities work compared to 66 percent of people without disabilities. Although people with disabilities constitute 26 percent of the population, they are more than twice as likely to be unemployed.
Just as Congress acted to correct the court’s decisions in the Sutton trilogy of cases, Congress should act now to correct the court’s misinterpretation in Biel of Title I’s religious “ministerial exception.” Unless an employee has a leadership role in a religious organization, the employee should be protected under the ADA as well as all other civil rights laws.
Five years ago, President Obama observed that the 25th anniversary of the ADA is a cause for celebration but also a time to “address the injustices that linger and remove barriers that remain.” The Biel decision is an example of the court’s unwillingness to fully protect the right to equality in the workplace for people with disabilities. It is now up to Congress to act again and correct the court’s misguided decision that tramples on the rights of people with disabilities — this time in the name of religious freedom.
Arlene S. Kanter is Laura J. and L. Douglas Meredith Professor of Teaching Excellence, Director of the Disability Law and Policy Program, and Director of International Programs at Syracuse University College of Law.