Disability Rights in the USA and Abroad

By Burgdorf, Robert L., Jr. | Civil Rights Journal, Fall 1998 | Go to article overview

Disability Rights in the USA and Abroad


Burgdorf, Robert L., Jr., Civil Rights Journal


In signing the Americans with Disabilities Act (ADA) into law in 1990, President Bush heralded the new Act as an "historic new civil rights Act ... the world's first comprehensive declaration of equality for people with disabilities" He added that other countries, including Sweden, Japan, the Soviet Union, and each of the twelve member nations of the European Economic Community, had announced their desire to enact similar legislation. The picture of the United States as the accepted leader in guaranteeing civil rights for people with disabilities, with other countries poised to follow the U.S. example, turned out to be only partially accurate. President Bush's rosy predictions have not fully come to pass, and the reality is somewhat more complex than his comments suggested. A variety of historical, sociological, political, and cultural factors unique to each country have resulted in widely differing approaches to disability discrimination.

To be sure, a number of countries have passed laws prohibiting discrimination on the basis of disability since 1990, and the model of the ADA certainly influenced many of these laws. For example, Australia passed a Disability Discrimination Act in 1992, and Great Britain enacted its Disability Discrimination Act in 1995. Each of these laws was affected, to a greater or lesser extent, by the U.S. enactment of the ADA, and borrowed concepts and language from it. The British and Australian laws illustrate, however, that various nations have followed very different paths in passing laws that can be loosely considered "ADA-like."

The Australian Disability Discrimination Act is extremely comprehensive, forceful, and specific. With some accuracy one can describe it as having out-ADAed the ADA. As one concrete example, while the Bush Administration insisted on inserting into the ADA language from the Civil Rights Act of 1964 exempting private clubs, the Australian statute has a specific section prohibiting clubs and associations from discriminating on the grounds of disability.

The British version of a Disability Discrimination Act, in contrast, is much less broad, specific, and substantial than the ADA. Critics have contended that the 1995 statute is too narrow in the range of activities it covers, too restrictive in the scope of persons afforded protection from discrimination, and too watered down in prohibiting acts of discrimination. A prominent civil liberties lawyer, Lord Lester, reportedly described the British Act as "riddled with vague, slippery and elusive exceptions, making it so full of holes that it is more like a colander than a binding code" Whether or not such attacks are fully justified, even a cursory reading of Great Britain's law reveals that it is not nearly as extensive or definitive as its American counterpart.

A few countries had laws prohibiting discrimination on the basis of disability prior to the ADA. A 1982 amendment to the Canadian Charter of Rights and Freedoms made Canada one of the very few nations in which nondiscrimination on the basis of disability is a constitutional right. At the statutory level, the Canadian Human Rights Act has prohibited disability discrimination since 1985. The interpretation and implementation of the Canadian requirements was influenced to a limited degree by regulations and court decisions under a U.S. statute that was a partial predecessor to the ADA -- Section 504 of the Rehabilitation Act of 1973. The Canadian courts have proven to be very receptive to the spirit of disability nondiscrimination laws, in contrast to the sometimes technical and wary reactions of some American courts.

In July of 1990, just weeks before the ADA became law in the U.S., France enacted an unusual statute that makes discrimination by an employer against a worker or applicant based on disability or state of health a criminal offense punishable by imprisonment for up to a year and a fine of up to 20,000 Francs. …

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