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The U.S. Supreme Court has once again sent a shot in the direction of Congress — striking down a portion of the landmark Americans With Disabilities Act on Wednesday. Divided 5-4, the Court held that disabled state government workers may not win damages in discrimination suits under the ADA, the 1990 congressional act that broadened civil rights protections to cover the disabled in many public settings, including the workplace. The Court’s decision in Board of Trustees of the University of Alabama v. Patricia Garrett drew criticism from civil rights advocates. In addition to essentially putting money damages out of the reach of disabled state-government employees, the majority’s ruling could have wider implications. According to civil rights lawyers, the decision could make other aspects of the ADA more vulnerable to legal attack and sets the bar higher for Congress in passing similar legislation in the future. “It certainly doesn’t bode well for future attempts by gay men and lesbians” to get civil rights laws protecting them, says Catherine Hanssens of the Lambda Legal Defense and Education Fund. Chief Justice William Rehnquist wrote the majority opinion. “States are not required by the Fourteenth Amendment to make special accommodations for the disabled, so long as their actions towards such individuals are rational,” he wrote. Joined by Justices Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy, and Clarence Thomas, Rehnquist added plainly that states, if they wanted, “could quite hardheadedly — and perhaps hardheartedly — hold to job-qualification requirements which do not make allowance for the disabled.” The majority is the same coalition that in recent years has reined in Congress’ power to regulate conduct at the state level. Since 1996, the Court has held that the 11th Amendment protects states from federal suits over a variety of actions — from age discrimination to patent infringement. The same 5-4 split ruled in 1995 that Congress misused its power under the commerce clause and struck down a law against gun possession near schools. Then last term, the coalition used the same rationale in striking down the part of the Violence Against Women Act that allowed women to sue their abusers. The same five justices also ruled last December for George W. Bush in his suit against Al Gore that effectively decided the presidential election. Ironically, Bush’s father, former president George Bush, signed the ADA into law in 1990 and in an amicus brief urged the justices to keep the law intact. Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer dissented from Wednesday’s majority holding. In a dissent by Breyer, the liberal and moderate wing disagreed with the majority’s holding that Congress had not assembled enough evidence to justify why the ADA should hold state employers liable for discrimination. To prove his point, Breyer, after writing a 15-page dissent, added 42 pages that chronicled discrimination against disabled people by state officials. More significantly, Breyer took issue with the majority’s suggestion that Congress, before passing a law aimed at state-level discrimination, must establish more detailed factual records. “There is simply no reason to require Congress, seeking to determine facts relevant to the exercise of its [14th Amendment] authority, to adopt rules or presumptions that reflects a court’s institutional limitations,” Breyer wrote. Chai Feldblum, a Georgetown University law professor who helped write the ADA, said the majority’s finding that states could discriminate against disabled people if doing so was “rational” could threaten other parts of the ADA. “If something is going to cost you more, that’s a rational reason not to do it,” says Feldblum. “That keeps a lot of people out of buildings and out of programs.” Feldblum wrote an amicus brief supporting the law on behalf of members and former members of Congress, including Sens. Orrin Hatch, R-Utah, and Edward Kennedy D-Mass., and former Sen. Robert Dole, R-Kan. Jeffrey Sutton, a Jones, Day, Reavis & Pogue partner, represented the state of Alabama, which won Wednesday’s case. The state was defending itself against suits by two disabled employees, one who lost her job after breast cancer treatment and the other who was refused work accommodations for his chronic asthma. Sutton disagrees that the decision threatens other areas of the ADA. He notes that the Court majority held that the commerce clause allows Congress to enact laws regulating private employment. He also echoes Rehnquist’s point that all 50 states already have laws protecting the disabled. “The states have been anything but hardhearted in this area,” he said. Conservative groups such as the Pacific Legal Foundation praised the decision as rightly reining in Congress. Sen. Patrick Leahy, the ranking Democrat on the Judiciary Committee, disagreed. “An unelected Court has substituted itself for the people’s elected representatives in Congress,” he said in a statement. “Congress needs to reassert its democratic prerogatives and restore the rights of ordinary Americans. These rights have been taken away by an increasingly activist and formalistic Supreme Court.”
Current Issues Facing California Employment Attorneys. March 26-April 6.

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