CVS Wants the Supreme Court to Gut Non-Discrimination Protections for People with Disabilities. It Could Set Us Back Decades.
“I’m sorry, we don’t serve people with disabilities.”
“That’s okay, I don’t eat them.”
This is a long-standing joke in the disability community, but it is based in reality. Many younger people might be surprised to learn that, not long ago, people with disabilities could be refused service with impunity. College students with disabilities were — if allowed to go to college — housed in the infirmary, not with their peers. Teachers who used wheelchairs — if able to get a teaching degree — were denied jobs because their wheelchair posed a “fire hazard.”
Just decades ago, disability rights activists led protests and sit-ins at federal buildings across the country to bring light to these experiences. One of these sit-ins in 1973, lasting 25 days, became the longest occupation of a federal building in history. The effort was a rallying cry for lawmakers to implement Section 504 of the Rehabilitation Act — the first federal disability civil rights law.
It took years of advocacy, education, and protest to achieve this victory. Now, this very law is under threat again.
In December, the Supreme Court will hear arguments for CVS v. Doe, a case that threatens to roll back decades of disability rights progress. The case is about a relatively small issue: whether people living with HIV/AIDS can opt-out of a “mail-delivery only” program to receive their medications from CVS. But CVS, instead of addressing the case on its merits — or, frankly, just allowing these plaintiffs the reasonable accommodation they seek — has decided to attack the very foundation of disability rights laws.
CVS has chosen to argue that disparate impact cases can no longer be brought under Section 504 of the Rehabilitation Act. Once obscure outside of legal circles, disparate impact is the backbone under which legal challenges to practices that disproportionately impact people with disabilities are brought.
We often think of discrimination as fairly personal. For example, when the wedding cake maker refuses to bake a cake for a same-sex couple, they have deliberately, and intentionally decided to discriminate against the same-sex couple. Disparate impact cases are different. They address situations in which seemingly neutral policies have discriminatory effects. In disability rights litigation, these cases are critical. People with disabilities regularly face exclusion and segregation, not because of anyone’s intention to exclude them or segregate them, but because people with disabilities aren’t being considered. The discrimination is one of “benign neglect” or thoughtlessness, not hatred or disapproval.
Disparate impact cases brought under the Rehabilitation Act address discrimination that denies people with disabilities full participation in society. The cases address apparently neutral discriminatory policies like: failing to provide wheelchair-accessible public transportation, creating zoning ordinances that exclude group homes for people with developmental disabilities, or providing college course materials in formats that are unreadable by blind students.
CVS now argues that people with disabilities only have a right to bring discrimination claims if the discrimination was intentional, not merely thoughtless. If disability laws were confined to only intentional acts of discrimination, civil protections that allow people with disabilities to fully participate and contribute to society would become meaningless. A company that makes huge profits from providing medications — many of which are for people with disabilities — now has the audacity to attack our ability to be included in the fabric of society.
Before Section 504, people with disabilities had no legal ability to challenge these practices. Yes, a restaurant could simply shut their door in the face of a person in a wheelchair, or with a white cane, or missing an arm, or with cerebral palsy. Sidewalks had no curb cuts, buildings were completely inaccessible to wheelchair users, and no blind person had a right to materials in Braille. Children with disabilities were routinely excluded from school with their peers, and often warehoused in institutions. This reality is what led disability activists to fight for the Rehabilitation Act.
We can’t go back to the old days of exclusion and discrimination. CVS should drop this argument, and remove this case from the Supreme Court docket. The disability community – and the ACLU – will fight this outrageous attack on our rights and our history.
Learn More About the Issues on This Page
-
CaliforniaDec 2024
Disability Rights
Powers v. McDonoughPowers v. McDonough
Every night, thousands of veterans sleep without shelter on the streets of Los Angeles. Meanwhile, the Department of Veterans Affairs owns hundreds of acres of land in prime West Los Angeles—land directly adjacent to a VA medical facility that was once earmarked to house veterans, but today is instead home to private school sports fields and an oil well. In November 2022, a group of unhoused veterans and a non-profit organization filed suit alleging that the Department of Veterans Affairs (“VA”) failed to provide adequate housing and health care to veterans with severe disabilities in Los Angeles. These failures have significantly undermined veterans’ abilities to access the benefits they are entitled to by law, leaving many stranded on the streets after serving our country. The veterans sued the VA under the Rehabilitation Act, a federal statute that prohibits federal agencies from discriminating against people with disabilities. As a remedy, the plaintiffs seek the construction of significant units of permanent supportive housing on the The VA argued that a provision of the Veterans’ Judicial Review Act (“VJRA”)— a federal statute that prohibits federal district courts from second-guessing VA’s individualized benefits determinations—bars federal district courts from hearing the veterans’ Rehabilitation Act claims. Should the court accept this position, it would deprive veterans of a meaningful opportunity to have their rights under the Rehabilitation Act and other generally applicable nondiscrimination statutes enforced. -
News & CommentaryDec 2024
Criminal Law Reform
Disability Rights
Incarceration Should Not be a Death Sentence for Individuals Who Use OpioidsIncarceration Should Not be a Death Sentence for Individuals Who Use Opioids
New litigation centered on increasing access to substance-use disorder treatment in jails and prisons is helping to reduce mortality rates among incarcerated individuals. -
Press ReleaseSep 2024
Disability Rights
Criminal Law Reform
Lawsuit Challenging Armed Police Response to Mental Health Emergencies in Washington, D.C. to ProceedLawsuit Challenging Armed Police Response to Mental Health Emergencies in Washington, D.C. to Proceed
WASHINGTON — A federal judge in Washington, D.C. today rejected the District of Columbia’s motion to dismiss a lawsuit brought by the American Civil Liberties Union, the ACLU of the District of Columbia, and the law firm Sheppard Mullin. The lawsuit contends that the District’s emergency response system discriminates against people with mental health disabilities by deploying armed police officers to address the vast majority of mental health crises while sending trained medical professionals to most other health emergencies. “This ruling moves us one step closer to bringing essential, life-saving emergency mental health care to D.C. communities. Qualified providers are best equipped to handle mental health emergencies with skills and compassion; police with a gun only serve to escalate, handcuff, and arrest,” said Ashika Verriest, senior staff attorney with the ACLU’s Criminal Law Reform Project. “Far too many people are harmed at the hands of police during a mental health crisis, or simply receive ineffective care. This must end.” The plaintiff in the case is Bread for the City, a D.C.-based nonprofit supporting underserved communities. The lawsuit contends that the District’s unequal response to mental health crises violates the Americans with Disabilities Act and the Rehabilitation Act. The ruling will move the case forward, allowing the ACLU to show in court that a fully functioning mental health crisis response system that sends a medical, rather than a law enforcement, response to most mental health crises is legally required. “Relying on mental health professionals, not armed police, to serve people experiencing mental health crises is not just logical, it’s required under the law. Today’s decision made clear that communities can’t single out mental health emergencies for worse services than other health emergencies,” said Michael Perloff, staff attorney with the ACLU of the District of Columbia. The ruling comes on the heels of a recommendation made in a similar case filed against Washington County, Oregon by the ACLU, the ACLU of Oregon, Disability Rights Oregon, and Sheppard Mullin. On August 30, 2024, a federal magistrate judge recognized that sending police, rather than health providers to a mental health crisis, may be discrimination against people with mental health disabilities in violation of federal law. The magistrate judge recommended that the case proceed. More details about the case are accessible here: https://www.aclu.org/cases/bread-for-the-city-v-district-of-columbia -
Press ReleaseSep 2024
Criminal Law Reform
+2 Issues
Judge Orders Supervision System in Washington, D.C. to Accommodate People with DisabilitiesJudge Orders Supervision System in Washington, D.C. to Accommodate People with Disabilities
WASHINGTON – A federal court granted a preliminary injunction yesterday in a case filed on behalf of people with disabilities on parole and supervised release in Washington, D.C., ordering immediate action to address discriminatory conditions faced by the two named plaintiffs. The court also denied the government’s motion to dismiss, allowing the case to proceed. The case, brought by the American Civil Liberties Union, ACLU of D.C., Public Defender Service for the District of Columbia, and Latham & Watkins LLP, challenges the federal government’s post-conviction supervision system in Washington, D.C. for systematically ignoring the needs of people with disabilities, thereby setting them up for failure on supervision and putting them at constant risk of sanctions, including incarceration. As the court held in its decision, such accommodations are likely required under federal disability law, specifically the Rehabilitation Act of 1973. The preliminary injunction requires that the United States Parole Commission and the Court Services and Offender Supervision Agency (CSOSA), the two federal agencies responsible for supervision in D.C., assess what reasonable accommodations the two named plaintiffs require to have an equal opportunity to succeed on supervision, and provide all such required accommodations. “Absent an injunction,” the court’s decision reads, “the Parolees will be forced to participate in the Government’s supervision programs on an unequal footing just because of their disabilities.” People on supervision in D.C. are required to comply with myriad and onerous rules. For people with disabilities, navigating these complex conditions is even more challenging. For example, Plaintiff Mr. Mathis — a 70-year-old military veteran with congestive heart failure that limits his ability to walk — struggles to travel throughout the city to attend frequent supervision meetings that often conflict with necessary medical procedures and hospitalizations. His supervision officer required him to wear an ankle monitor even after his doctor warned the monitor would jeopardize his health due to his heart condition. Plaintiff Mr. Davis, who lives with chronic pain stemming from third-degree burns as well as mental health conditions, also faces disability-related barriers getting to required meetings. Yet failing to meet any of these conditions, even something as simple as missing an appointment, can land a person back in jail or prison, even when no new criminal conduct is alleged. The court agreed that “absent immediate relief, the Parolees will face irreparable harm; namely, obstacles to success on supervision solely because of their disabilities, which expose them to downstream harms like revocation and reincarceration.” The court did not decide whether it will ultimately certify a class that could yield relief for all people on supervision in D.C. who need accommodations. Instead, the court directed the parties to agree on a schedule for further proceedings on that issue. “The undue hardships faced by people with disabilities on federal criminal supervision in the District of Columbia have gone unaddressed for too long,” said Scott Michelman, legal director, ACLU of the District of Columbia. “This decision is a victory for equal treatment and common sense.” “The Court’s opinion emphatically rejects the federal government's ‘do-nothing’ policy for people with disabilities on supervision in Washington, D.C., who have been forced to navigate onerous requirements without accommodations for decades,” said Allison Frankel, staff attorney with the ACLU Criminal Law Reform Project. “This ruling ensures that our named Plaintiffs will have the accommodations they need to have a fair shot at completing parole and remaining in their communities.“ “We are thrilled the Court recognized that the Parole Commission and CSOSA must accommodate our clients’ disabilities so that they have an equal opportunity to succeed on supervision,” said Zoé Friedland, staff attorney with the Public Defender Service for the District of Columbia. “We will keep fighting to make this relief permanent and systemic so that all people on supervision have an equal chance to succeed.” The decision on the preliminary injunction can be found here: https://www.aclu.org/cases/mathis-v-united-states-parole-commission?document=Preliminary-Injunction-Opinion The complaint can be found here: https://www.aclu.org/documents/w-mathis-v-united-states-parole-commission-complaint