#Gorsuch On Disability - ACLU Statement

I blogged the other day about the Hwang v KSU disability rights case. Here's an actual disability rights lawyer, Claudia Center, for the ACLU on the case and others.

Under established disability rights laws, a request for leave due to a disability must be evaluated on a case-by-case basis to decide whether the request would present an undue hardship to the employer. This is a factual determination. Yet, before any evidence could be presented in the case on whether such an accommodation might present a problem for KSU — a federally funded, multi-million-dollar employer — Judge Gorsuch ruled that Professor Grace Hwang’s request for an additional leave of absence was simply unreasonable.

Overall, Gorsuch shows that he wants to defend institutions against individual needs. Center writes:

One of the primary principles underlying disability rights laws is the idea that there will be times when we need to level the playing field to give people with disabilities an equal opportunity — an opportunity to get an education, to get or keep a job, to be productive members of society. The Americans with Disabilities Act and other disability rights laws recognize financial, practical, and administrative burdens. But the laws also emphasize the individual nature of each situation. An accommodation that works for one person might not work for another. Similarly, what would be required for one employer might be a hardship for another. The court needs to look at the facts, not draw arbitrary, bright-line rules.

I'll do the IDEA case tomorrow.

#Gorsuch on Disability - Hwang v Kansas State University

I plan to blog some of the cases that new SCOTUS nominee Gorsuch has ruled on or concurred in regards to disability. The record is mixed. He has the typical conservative skepticism about federal regulation, disdain for class actions, and protection of corporate over individual interests. Beyond that, we'll need to look at specifics.

Note: I am not a lawyer, just a close reader of texts. Smart comments from lawyers on stuff I get wrong will always be welcome.

---------------------------------------

In Hwang v KSU, a professor (listed as assistant professor, but reading as if she's on a one-year contract, which might just be her pre-tenure contract) got cancer. She received 6 months paid leave, was still sick and asked for more time, and was instead fired (with disability benefits). She sued. Lost. Appealed. Lost.

Here's the nut paragraph from Gorsuch's ruling:

Still, it’s difficult to conceive how an employee’s absence for six months — an absence in which she could not work from home, part-time, or in any way in any place — could be consistent with discharging the essential functions of most any job in the national economy today. Even if it were, it is difficult to conceive when requiring so much latitude from an employer might qualify as a reasonable accommodation. Ms. Hwang’s is a terrible problem, one in no way of her own making, but it’s a problem other forms of social security aim to address. The Rehabilitation Act seeks to prevent employers from callously denying reasonable accommodations that permit otherwise qualified disabled persons to work — not to turn employers into safety net providers for those who cannot work.

He's an accessible, sharp, writer. I can see why people like him. His position here, as I see it, isn't unreasonable. If an employee can't work due to disability, the employer isn't obligated to provide social security, that's what social security is for!

Of course: Republicans also want to gut social security and shred the safety net.

More to come in this exciting new series!