The Ada: Strict Scrutiny Protection for Disabled Workers
| Jurisdiction | United States,Federal |
| Citation | Vol. 21 No. 4 Pg. 733 |
| Pages | 733 |
| Publication year | 1992 |
1992, April, Pg. 733. The ADA: Strict Scrutiny Protection for Disabled Workers
The direct economic implications of the Americans With Disabilities Act(fn1) ("ADA") will not be felt until its implementation in July 1992. However, the road is now open for courts to employ "strict scrutiny" to ensure that the medically disabled or impaired are protected from discrimination occurring under the banner of economic expediency or development. As indicated in the following language from the ADA, the U.S. Congress has acknowledged that the medically disabled or impaired(fn2) are members of a "suspect class":
[I]ndividuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society. . . .(fn3)
The ADA's impact on workers' compensation practitioners may be significant. Prior to recently enacted workers' compensation "reform," claimant attorneys could be instrumental in assisting permanently injured workers to obtain compensation for a portion of their income loss. Additionally, re-employment was encouraged.(fn4) This has changed. Under the amendments to Colorado's Workers' Compensation Act brought about in 1991 by Senate Bill ("S.B.") 218, permanent impairment encompasses neither wage loss nor loss of labor market access, nor is there incentive to continue to employ an injured worker.(fn5) Consequently, the job market access provisions of the ADA will become an increasingly critical tool for protecting clients whose employability has been affected by a work-related injury. A thorough understanding of the ADA will be essential for effective representation of workers' compensation clients.
This article explores the evolution of the constitutional protections afforded to the medically disabled or impaired. It suggests that the ADA will affect dramatically social legislation limiting their due process rights. For a focus on the technical aspects of the ADA, the reader is directed toward previous articles in The Colorado Lawyer.(fn6)
The Equal Protection Clause of the U.S. Constitution(fn7) allows states wide latitude in enacting social or economic legislation.(fn8) It is presumed that even improvident legislative decisions eventually will be rectified by the democratic process.(fn9) However, this general approach must give way when suspect classes are involved, or there is an infringement of personal rights protected under the Constitution.(fn10)
The U.S. Supreme Court has recognized race, alienage, national origin and gender as suspect classifications requiring a heightened standard of review(fn11) because "discrimination is unlikely to be soon rectified by legislative means. . . ." Thus, laws affecting these classes are subject to strict scrutiny and are upheld "only if they are suitably tailored to serve a compelling state interest."(fn12) [Emphasis added.
Historically, the U.S. Supreme Court has refused to extend a heightened review to differential treatment based on age or disability (including mental retardation).(fn13) In Board of Retirement v. Murgia,(fn14) the Court rejected a heightened review based on age, asserting that the aged, unlike persons discriminated against on the basis of race or national origin,
have not "experienced a history of purposeful unequal treatment" or been subjected to unique disabilities on the basis of stereotype characteristics not truly indicative of their abilities.(fn15)
In the 1985 case of City of Cleburne, Texas v. Cleburne Living Center,(fn16) the Supreme Court held that mental retardation was not a "quasi-suspect" classification triggering a more exacting standard of judicial review. In a case a first impression, the Fifth Circuit in Cleburne(fn17) faced an equal protection analysis for the mentally retarded. It reasoned that the mentally retarded shared sufficient
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