Louis S. Rulli and Jason A. Leckerman. Louis S. Rulli is a practice professor of law at the University of Pennsylvania Law School, Philadelphia, Pennsylvania. Jason A. Leckerman, a 2001 graduate of the University of Pennsylvania Law School, is a private lawyer currently practicing law in Philadelphia. The authors wish to express their deepest gratitude to remarkably gifted, generous, and delightful law students, Robert W. Ballenger and Loren G. Stewart, for their invaluable assistance with this article.
Disability and poverty historically have traveled hand-in-hand.1 Years of exclusion from the workplace and most aspects of American life have left people with disabilities socially isolated, poorly educated, and financially dependent.2 Congress passed the Americans with Disabilities Act (ADA)3 in large part to end this relationship and to finally break down historic barriers that have stood between people with disabilities and equal opportunity, financial security, and economic independence.4 At the time of the passage of the ADA, studies showed that almost 30% of people with work disabilities lived below the poverty line5 and 45% of families headed by a person with a disability lived in poverty.6 Yet, thirteen years after the passage of the ADA, the disabled remain disproportionately poor.7 Today, people with disabilities are three times more Page 596 likely to live in poverty8 and their unemployment rates have remained relatively constant.9
Indeed, despite measurable success in gaining access to public and private institutions, people with disabilities still appear largely excluded from the workplace.10 Quite clearly, the ADA, through its main employment provision, Title I, has not achieved nearly as much success in the workplace as many had thought it would.11 Advocates for the disabled, who once heralded the ADA's passage as a watershed moment in the history of civil rights, have been relegated to accepting a number of set backs as de rigueur and finding solace in the fact that the non-employment provisions of the Act have achieved more success.12 Thirteen years on, many fear that Title I of the ADA ultimately may fail the worker (or the aspiring worker) with disabilities.
During the past half-century, the nation's federal courts have played a vital role in protecting civil rights and combating illegal discrimination.13 Private parties and governmental agencies alike have turned to the courts to enforce federal law and remedy irrational discrimination and, as a result, the judgments of federal courts actions have empowered other victims of discrimination to come forward and challenge illegal conduct. For Title I, however, federal courts have not played this same, vital role in protecting the workplace rights of people with disabilities.14
In this article, we explore the relationship between enforcement of the ADA in federal courts and the reasons that the ADA has not, so far, been as successful in opening the doors of the workplace as many had hoped. In doing so, we emphasize how the ADA's failure to live up to its potential in this respect has had, and will continue to have, great ramifications for people who are poor. We have divided the article into two parts. Part I analyzes the general goals of the ADA and the success that the ADA has had in achieving those goals. We begin our analysis by discussing Professor Thomas Stoddard's thoughtful framework for analyzing legislation in which he identified the narrow rule-shifting capacity and the much broader culture-shifting capacity of Page 597 law. We conclude that the ADA was intended to be culture-shifting. Next, we measure the success of Title I and the other provisions of the Act in achieving this goal and conclude that the ADA, mainly due to the failure of Title I to play its part, has only partially begun to fulfill its culture-shifting purpose and likely will not be able to achieve this ultimate goal without substantial change. We then address why Title I's contributions to a culture shift have failed to materialize. In doing so, we focus heavily on judicial outcomes in filed cases under Title I. We compare our findings with those of other published studies assessing reported cases under Title I and conclude that, year after year, employers continue to win in 92% to 97% of cases that reach a final judicial outcome. We close the first part of our article by examining the impact that such one-sided outcomes have on the willingness of lawyers to undertake new federal litigation under Title I. Relying on current statistical evidence, we conclude that lawyers are quickly retreating from Title I enforcement in our federal courts.
In the second part of the Article, we look more closely at the nexus between disability and poverty and ask whether the poor are able to confront discrimination in the workplace by turning to the federal courts. We discuss the special problems that the poor face in obtaining access to counsel and in trying to litigate on their own. Once again, based on statistical evidence, we conclude that poor people with disabilities have largely turned away from federal courts as a means of enforcing their rights under Title I.
Finally, in an epilogue, we summarize our findings and offer some suggestions that, if adopted, might bring us closer to the day when culture- shifting change arrives in the workplace for people with disabilities.
In his essay Bleeding Heart: Reflections of Using the Law to Make Social Change, Professor Thomas Stoddard15 offered the idea that the law has two main capacities: "rule-shifting" and "culture-shifting."16 Measuring the ADA against this standard provides a useful means for framing the analysis of the efficacy of the Act's employment provisions. As will be seen, Congress and the supporters of the ADA, in passing the Act, did not merely seek to establish new rules governing the treatment of persons with disabilities; rather, they sought to transform the way that people who have disabilities deal with society, and, in Page 598 turn, how society treats people who have disabilities. The promise of transformation, though, has gone largely unfulfilled. The fault for this shortcoming lies mainly with Title I.
As Professor Stoddard described it, his essay blossomed from a disappointing trip to New Zealand.17 Prior to his trip, Professor Stoddard was encouraged by his study of New Zealand's anti-discrimination laws, and how, on their face, they appeared extremely progressive in the protections they afforded gays and lesbians.18 During his visit to the country, however, Professor Stoddard discovered that the culture did not reflect the law.19 Much to his surprise (and chagrin), attitudes towards gays and lesbians in New Zealand did not rival the level of cultural acceptance Stoddard believed was present in the United States.20 Professor Stoddard reflected on the differences and in his article he sought to make sense of them. He concluded that the law mainly has two capacities: "rule-shifting" and "culture-shifting."21 The "rule- shifting" capacity refers to laws enacted "[t]o create new rights and remedies for victims," "[t]o alter the conduct of the government," or "[t]o alter the conduct of citizens and private entities."22 Professor Stoddard described these goals as "the traditional role of the law in expressing the formal rulemaking function for a society."23 The "culture-shifting" capacity of the law refers to laws enacted "[t]o express a new moral ideal or standard" or "[t]o change cultural attitudes and patterns."24 Professor Stoddard noted that these goals portray the law as seeking "to advance the rights and interests of people who have been treated badly by the law and by culture, either individually or collectively, and to promote values we think of to be rights."25
The Civil Rights Act of 1964 (the "Civil Rights Act"),26 according to Professor Stoddard, is the "statutory paradigm" of "culture-shifting" legislation.27 In the Civil Rights Act, Congress prohibited discrimination based on race, color, religion, national origin, and sex in most aspects of the American Page 599experience, with "[the] most far-reaching and significant provisions prohibit[ing] discrimination in public accommodations and publicly owned or managed facilities (titles II and III), in programs receiving federal financial assistance (title VI), and by employers, labor unions, and employment agencies (title VII)."28 The Civil Rights Act made available both public and private enforcement.29
The Civil Rights Act achieved all five aims of the law, the three described as "rule-shifting" and the two described as "culture-shifting." As Professor Stoddard explained, "It gave victims of discrimination new rights and remedies. It instructed the government to promulgate and enforce new rules of conduct for...