Is This an ‘Ominous’ Message for the Disabled Under Trump?

The sudden dismissal of an Americans with Disabilities Act lawsuit in Virginia has advocates concerned that a systematic weakening of the federal law has begun.

Photo Illustration by The Daily Beast

The Justice Department has dropped its appeal of a key disability rights lawsuit—and advocates say they fear this means people with disabilities could see their rights rolled back under President Donald Trump.

The lawsuit at issue is in Richmond, Virginia, where a sheriff’s deputy, Emily Hall, had to temporarily leave her job to get surgery for a heart condition in September 2012. After her surgery, she tried to return to work but wasn’t physically capable of taking her old position. The sheriff’s department told her she could apply for a less strenuous job. When she applied, she didn’t get that position, according to court documents.

So Hall sued the sheriff’s department, charging it violated the Americans with Disabilities Act (ADA) by failing to accommodate her disability. The Justice Department initially joined her effort. Then-Attorney General Loretta Lynch, Civil Rights Division head Vanita Gupta, and U.S. Attorney Dana Boente—now a senior DOJ official under Attorney General Jeff Sessions—all signed on.

When a federal judge in Virginia ruled that the sheriff hadn’t violated Hall’s rights, Hall and the Justice Department appealed the ruling to the Fourth Circuit Court of appeals.

But on July 28, the Justice Department moved to dismiss its own appeal, and the court granted the dismissal.

Top officials who worked in the Civil Rights Division under Obama say that may be an ominous sign—an indicator that Sessions’ Justice Department may be far less aggressive in defending the rights of people with disabilities than President Barack Obama’s. They fear the dismissal could be the beginning of a shift away from the prior administration’s energetic stance.

“I’m very pessimistic,” said Sam Bagenstos, who was second-in-command in the Civil Rights Division during the Obama administration. “I think this administration is likely to slow down very substantially their enforcement of the ADA. But I’d like to be proven wrong.”

The Justice Department has already changed its position on some voting rights litigation and is reconsidering the Obama-era efforts to make troubled local police departments change their practices.

Lauren Ehrsam, a spokesperson for the Justice Department, said it is firmly committed to enforcing the ADA.

“This administration and Department of Justice are strongly committed to protecting the rights of people with disabilities,” she said, noting that since January the department has entered 17 settlement agreements around the country to help people with disabilities go to restaurants, vote in polling places, and communicate with doctors.

But disability rights’ advocates say they’re worried the department is moving in the wrong direction.

“It’s unfortunate and worrisome that the Civil Rights Division, having come this far, chose to suddenly withdraw its appeal from this terribly reasoned decision,” said Sasha Samberg-Champion, formerly a top attorney in the division during Obama’s presidency. “With the division currently staking out retrograde positions on LGBT issues, racial diversity in education, and elsewhere, disability rights advocates are watching closely to see whether the division will continue to forcefully protect the rights of people with disabilities such as Ms. Hall. The decision not to pursue her case further is grounds for concern.”

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Bagenstos added that this case could be a leading indicator that Trump’s Justice Department could handle disability issues quite differently from Obama’s.

“It’s a very troubling data point,” he said. “It creates a lot of doubts under that the DOJ under Sessions will vigorously enforce the ADA. But a lot remains to be seen.”

Business groups—which argue the Justice Department sometimes takes too broad a view of the ADA—could be pleased with some changes.

Karen Harned, an attorney at the National Federation of Independent Businesses, said her group doesn’t believe companies should be required to give new jobs to employees who get disabilities while working there. She said her group’s view is that while employees in Hall’s situation should be able to apply for jobs that could accommodate them, they shouldn’t necessarily have a right to those positions.

“It’s good to see that they’re not trying to push a theory that has already been rejected by other courts,” she said, citing the fact that some circuit courts have rejected similar lawsuits. “If a statute doesn’t say it clearly, small business owners shouldn’t be held to these new crazy theories.”

During the Obama administration, the Civil Rights Division moved to aggressively enforce the ADA—looking to craft new regulations on businesses and bringing lawsuits based on a broad view of their jurisdiction. Disability rights advocates say they hope Sessions’ Justice Department will be just as aggressive.

Trump’s record on disability rights won’t reassure them, as Trump companies have faced numerous lawsuits alleging they didn’t accommodate people with disabilities.

“We are watching them very closely to make sure they continue the aggressive enforcement of the ADA despite the change in administration,” said Curt Decker, who heads the National Disability Rights Network. “The issues have not changed. The need for protection for people with disabilities remains the same.”