Yes, Diabetes is Probably a Disability; A Response to Ed Morrissey

So this morning we get news via Kevin Drum that the Obama administration is claiming some kind of victory in giving us the first Supreme Court justice who was confirmed with a disability, which everyone takes as a reference to Sonia Sotomayor’s diabetes.  This led Ed Morrissey over at Hot Air to wonder if diabetes counts as a disability.  And he doesn’t say this uncaringly, but with indeed sympathy toward people with diabetes because, as he discloses, his wife had Type I diabetes up until recently.  But he felt that it was ridiculous to treat it as a disability even when she had it, because as long as she took her medicine, she is fine.  At least that is how I read his argument.

As a lawyer, speaking about statutory construction, I would say, that under the Americans with Disabilities Act (ADA) diabetes is “almost certainly” a disability.  But to talk about it and the policy behind this, I have to get a little philosophical about the ADA.

You see in a very real way, the ADA is an upside down law.  And it is the upside down nature of the law that has led to a lot of confusion.

Let’s start with the paradigmatic example of wrongful discrimination: skin color.  Most normal people (with the recent exceptions of John Derbyshire and Marion Barry) recognize that it is wrong to judge a person by the color of one’s skin; that one should be judged by the content of one’s character, to riff off of Dr. King’s immortal phrase.  Now why is it wrong to judge people by the color of their skin?  Because, most sane people will say, there is no significant* difference between the races.  So it is considered wrong to discriminate based on color because it truly doesn’t matter; it’s irrelevant.

(I have often said that the only relevance of race is the existence of racism, and nothing I am saying here is meant to contradict that or the implications of that.)

Then if you move to gender discrimination, well, things get more complicated.  Women are not exactly like men, a fact that I am quite thankful for.  And so for instance where bathrooms segregated according to race is considered invidious, bathrooms segregated according to sex is not.  And indeed in many respects it is completely impossible to treat women exactly like men, especially as it relates to reproduction.  So, for instance, it is pointless to talk about a right of a man to have an abortion, although oddly one country has granted men a right to breastfeeding leave.  And while Sandra Fluke may want a subsidy to pay for her birth control medication, it is not possible for there to be an equivalent for men at present (some Feminists have equated it to Viagra, but there are reasonable distinctions between birth control pills and Viagra that one can spot from a mile away).  So a law providing a birth control subsidy for women and not for men is more than likely perfectly constitutional as is not providing such a subsidy.  The point is that there are some relevant differences between men and women and so it is not as obvious that sex discrimination is always wrong like it is with racial discrimination.

And I have spoken before about religious discrimination.  Well, that in turn could be considered an even greater difference depending on what your faith demands of you.  For instance, many Jews believe they cannot work on the Sabbath.  And Christians in theory are not supposed to work on the Sabbath, either, but I don’t know many who actually insist on that.  And even if you happen to work for Chik-Fil-a, that only solves the problem if you are Christian.  Jewish employees still have a problem, because of the disagreement between Jews and Christians on when the Sabbath actually is.  These are not completely irrelevant differences, and we could imagine circumstances where one absolutely needs a person to  work on the Sabbath, so that if they refuse to, that would be a reasonable firing offense.

But we could just as easily imagine an employer who hates Jews banning headwear as a way of weeding them out.  And in a few circumstances, we might see where even that a ban might be justified.  That was what the Supreme Court ruled in Goldman v. Weinberger dealing with the rule in the military against wearing headgear indoors, although it is my understanding that Congress overruled that decision by changing the military code.

So when the Civil Rights Act of 1964 enacted a provision outlawing religious discrimination, they realized it was not enough to simply make it illegal to exclude Jews simply in reference to their faith (or any other religion—I am just focusing on Jews to keep things simple).  So they added that discrimination itself was defined in part as the failure to provide reasonable accommodation to one’s religious practices—defined chiefly as when such accommodations do not constitute an “undue burden” on the entity.  So if a company has a “no hats” rule, the courts ask whether it imposes an undue burden on the company to require them to make an exception for yarmulkes.

But even then we intuitively get that a company that fires a Jewish person for refusing to work on a Saturday is on steadier ground than if they fired the Jew for refusing to take off his yarmulke.  I have no doubt the law reacts exactly the same way.  And why?  Because the decision to wear a yarmulke is obviously less likely to be significant in any relevant way to an employer, than a decision to refuse to work for a given 24 hour period during the week.

So we can see in the law of discrimination a very simple proposition: the more significant the differences are between the groups, the easier it is to justify discrimination.  And vice versa.

And further you might know that discrimination law equally recognizes that if a person is mistaken in their categorization, that this is no defense to a claim of unlawful discrimination.  So for instance if a man is white but his white supervisor gets the mistaken impression that he has a black ancestor and is therefore “black” in his mind,** and then proceeds to discriminate against this man based on this mistake, then the courts will consider it racial discrimination.  Likewise if a person mistakenly thinks a person is Jewish, and discriminates against him or her based on that, that is anti-Semitic discrimination, too, as a matter of law.  And why?  Because if it makes no sense to discriminate against a person for being black or Jewish, then if anything it makes even less sense to discriminate against a person who is not black or Jewish based on the false belief that they are in either of those categories (to pick out two for illustration purposes).

And as I have said before, the ADA incorporates this concept of reasonable accommodation in relation to religious discrimination into its definition of disability discrimination.  So Congress said it was illegal discrimination to refuse to hire a man merely because he is a paraplegic, and Congress likewise made it illegal to refuse to make an office wheelchair accessible if doing so would constitute a reasonable accommodation.  And yes, cost is a very important consideration when determining if an accommodation is reasonable or not.

But there is something else in the ADA that is completely flipped upside down from what we have been talking about up until now—the idea that the more significant a difference is, the less protection there is.  Let’s start with the fact that the ADA only protects disabled from discrimination based on their disability.  This is not true of most civil rights laws.  For instance, if you discriminate against a white Christian man, for being white, a Christian or a man, you are going to be in violation of the Civil Rights Act of 1964’s prohibition of race, religious or gender-based discrimination, respectively.  But isn’t discrimination based on lacking a disability generally the most ridiculous?  “Sorry, we don’t want you because you have no trouble walking.”  Although at least you can argue that such an approach would outlaw certain kinds of affirmative action that I think many people believe are justified.  For instance, if discrimination based on lack of disability was outlawed, you would probably have to end Gallaudet and every other all-deaf university as all deaf-universities.

But the law has a much deeper element of upside-downness, where Congress felt the need to define who was and wasn’t disabled in the law.  What Congress has said is that that to be considered actually, presently disabled under the ADA you have to have “a physical or mental impairment that substantially limits one or more major life activities[.]”  And of course the courts have debated how much you have to be limited to be “substantially limited” and they have debated whether a particular activity is a major one or not.  But there is no getting away from the fact that under the ADA the more impaired you are, the more protected you are.

And most people don’t realize how little that makes sense because frankly in the public imagination, the ADA is primarily about accommodations.  They ignore that it is equally about what we classically consider to be discrimination—refusing to hire a person who is blind not because they believe that being able to see is relevant to the job, but because you just don’t like blind people.  Indeeed, it is all about discrimination—accommodation requirement comes in by the statute defining a failure to provide reasonable accommodation as a form of discrimination.

For instance years ago I was discussing the ADA with a lawyer friend and he said (all of this was paraphrase), “I wouldn’t think the ADA should protect people who merely wear glasses [like himself].  Yes, if they are legally blind or something like that, but if they have glasses that correct their vision, they don’t need protection.”

My response was this: “Well, yes, discrimination based on wearing glasses is exceedingly rare outside of the Air Force and school playgrounds, but the question is whether or not such discrimination is more or less likely to be based on something real.  If a company refuses to build a wheelchair ramp, you can recognize that this is less likely to be based on baseless prejudice, but discriminating against a guy for wearing glasses?  That sounds more like discrimination based on skin color.  It’s hard to understand why any rational person would think it means a damn in most situations, with the possible exception of the Air Force.”

So in Sutton v. United Airlines they faced a very similar situation.  I mean it is my understanding that the Air Force requires you to have perfect vision, without glasses or contacts.  Similarly United Airlines required you to have at least 20/100 vision, uncorrected, whatever that means exactly (I’m not an optometrist), and in Sutton the plaintiffs couldn’t meet this requirement.  But what got the courts hung up was this.  When the plaintiffs wore glasses, their vision was perfect or at least not substantially limited.  So the question was whether you determine whether they are disabled based on their condition while wearing the glasses, or when they weren’t.  And in Sutton, the Supreme Court ruled that disability would be determined while using any mitigating measures, such as glasses, diabetes medicine, whatever.

And this drew howls of protest from advocates of disability rights.  First, it was noted by advocates for disabled people that this created an incentive not to get treatment.  Deaf people would be discouraged from receiving cochlear implants, for instance, out of fear that they might “cure” their deafness enough to make it so that they are no longer disabled under the eyes of the law, but they might still face discrimination at the hands of society.  Are the courts going to rule that if you are deaf you have to try to get a cochlear implant to get protection under the ADA or you had to justify not getting it?  It made little sense.

And more fundamentally it didn’t make sense with other provisions of the act.  For instance, you not only had to be disabled, but you had to be a “qualified individual with a disability” under the law in order to be protected.  And on the date that Sutton came down, the statute defined a “qualified individual with a disability” as being, in relevant part: “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”  So the statute made it crystal clear that when you were determining whether a person was qualified for a job or not, you considered them in their accommodated state and by ordinary rules of statutory construction that meant that you determined whether or not a person was “disabled” when they were not using “reasonable accommodations.”

So then this means that the courts would then have to make a distinction between a mitigating and a reasonable accommodation.  And it would be hard to draw that distinction.  For instance I have dysgraphia.  It can mean different things, but in my case it describes a disability that makes it hard to write by hand.  But it doesn’t affect my ability to type so nine times out of ten I can make the disability irrelevant simply by lugging a laptop computer around with me at all times.  Now in my undergraduate school this was an accommodation but in law school it would seem to fit the definition of a mitigating measure.  And by saying, that I mean this.  In undergrad professors occasionally objected to a student bringing any kind of laptop, now and then. Therefore I needed special permission to override the professors’ preference.  On the other hand, in law school, it would seem by the Supreme Court’s nomenclature that it was not an accommodation, because every professor allowed laptops and about half the class used them.  So in law school, I suppose it was merely a mitigating measure.  Same person, same laptop, but due to the relative lack of tolerance by professors in undergrad for laptops generally it would be an “reasonable accommodation” in one setting, but a “mitigating measure” in another.

Which is ludicrous when you think about it, especially when you focus not so much on the need for accommodation but the arbitrariness of ordinary discrimination.  For instance in law the ability to type is far more important than the ability to write by hand.  So if someone discriminates against a person solely for having that disability, we should be a little extra suspicious of that kind of discrimination.

And in Sutton, the treatment of diabetes was a significant issue:

The agency guidelines' directive that persons be judged in their uncorrected or unmitigated state runs directly counter to the individualized inquiry mandated by the ADA. The agency approach would often require courts and employers to speculate about a person's condition and would, in many cases, force them to make a disability determination based on general information about how an uncorrected impairment usually affects individuals, rather than on the individual's actual condition. For instance, under this view, courts would almost certainly find all diabetics to be disabled, because if they failed to monitor their blood sugar levels and administer insulin, they would almost certainly be substantially limited in one or more major life activities. A diabetic whose illness does not impair his or her daily activities would therefore be considered disabled simply because he or she has diabetes. Thus, the guidelines approach would create a system in which persons often must be treated as members of a group of people with similar impairments, rather than as individuals. This is contrary to both the letter and the spirit of the ADA.

So, so far, this sounds bad for anyone who would argue that diabetes was covered by the ADA.

But I have talked to you before about the idea of a legislative dialogue.  I quoted where the Supreme Court quoted a professor of mine wrote that “[w]hen a court says to a legislature: ‘You (or your predecessor) meant X,’ it almost invites the legislature to answer: `We did not.’”  Well, when the Supreme Court said that Congress intended the term “disability” to be interpreted as including any “mitigating measures” Congress replied “we did not.”  They amended the law in 2008 under Bush Jr.  And in doing so the law explicitly stated that one of its purposes was

to reject the requirement enunciated by the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures”

Folks, that is as clear a smack at the Supreme Court as you are ever likely to see.

The operative language of the act was also amended to reflect that reality.  For instance, at one point the (amended) law says:

(i) The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as

(I) medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies;

(II) use of assistive technology;

(III) reasonable accommodations or auxiliary aids or services; or

(IV) learned behavioral or adaptive neurological modifications.

And if you dig through Sutton, you will see that it was affirming pretty much every good precedent under the ADA (if you are sympathetic to the disabled).  And Congress also expanded the definition of a “major life activity” so it says now:

(2) Major Life Activities

(A) In general

For purposes of paragraph (1), major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

(B) Major bodily functions

For purposes of paragraph (1), a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

The endocrine system is (and I admit I had to look this up) your glandular system of which your pancreas (which creates the insulin) is a part.  So this is extremely close to Congress saying, “yes, we mean diabetes, too” without actually naming the disease.

So yes, diabetes is almost certainly considered a disability under the ADA.  And in the case of Mr. Morrissey’s wife, not to give you legal advice, but she would probably also be disabled because there are actually three ways to be considered disabled under the law.  They define a disability as being one of three things: (1) “a physical or mental impairment that substantially limits one or more major life activities of such individual,” (2) “a record of such an impairment” or (3)  “being regarded as having such an impairment[.]”  Lawyers in disability law refer to these three definitions as the “actual, the record of and regarded as prongs of the definition of disability.”

And this makes sense if we remember this is partially about when straight ordinary discrimination should be illegal.  Whatever logic there is in discriminating against a person who presently has a disability, it makes no sense to discriminate against a person who once was disabled but is no longer, when that discrimination is based on that person having once been disabled.  And likewise if they are not actually disabled, but you mistakenly think they are and discriminate against them as a result, that is equally irrational.

And now, none of this should be taken as legal advice, either by you, dear reader, or by Mr. Morrissey if he should happen to read this, but since he has disclosed that his wife’s diabetes has been cured I can say with extreme confidence that if actual diabetes is presently a disability under the ADA, then her record of having diabetes is also a disability—which means that if any person is fool enough to discriminate against his wife because she was once a diabetic, she will be protected.  And indeed, the treatment itself—the pancreatic transplant—might be considered one giant mitigating measure that should be disregarded when determining if she is actually presently disabled, so the law might consider her actually disabled now.

So in short, yes, Mr. Morrissey, under the ADA as it currently reads, Sonya Sotomayor is almost certainly disabled.

But it also raises an interesting question.  Would Ms. Sotomayor have to recuse herself from any case considering the ADA.? I would have to actually look into it, but I think a major consideration would have to be just how much she would benefit from this law.  And for that matter, how much any other sitting justices would, too.  Many justices started out with no disabilities and developed them during their tenure but I am honestly unsure if any other current justices are disabled.  This is especially an issue with the ADA because unlike other civil rights laws which generally prohibit discrimination on the basis of a certain trait like sex, this law only protects the disabled from discrimination based on their disability as I said before.

And of course the final question is whether this is a good thing or a bad thing, that the ADA has been expanded so that diabetes is almost certainly covered as are many other conditions you might not think of as a disability.  I think some of that question was answered in this piece by pointing out how by expanding the law, we are reaching further into even more arbitrary forms of discrimination but if you want to read even more from me about the philosophical underpinnings and justification of the ADA, I suggest you read here.

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* I have confused several people by saying that there is no “significant” difference between the races in the past, so that at least one person actually wrote to me, I kid you not, “poppycock!  There is no difference between the races.”  And I had to march him through it pointing out that skin color is in the most technical sense a difference, but it is not a significant difference because it doesn’t correlate to say, intelligence or morals or any other difference that is not literally skin deep.  And that is all I am saying here: tautologically black people are black, white people are white, and so on, and that is a difference, but not a significant one that justifies virtually any kind of discrimination.

** Recognizing that there is very little reality to any of these racial classifications, anyway.

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