Finding the Gaps: A Comparative Analysis of Disability Laws in the United States to the United Nations Convention on the Rights of Persons with Disabilities (CRPD),[...]

Finding the Gaps: A Comparative Analysis of Disability Laws in the United States to the United Nations Convention on the Rights of Persons with Disabilities (CRPD), Rehabilitation International (RI) 21st World Congress

FINDING THE GAPS: A COMPARATIVE ANALYSIS OF DISABILTY LAWS IN THE UNITED STATES TO THE UNITED NATIONS CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES (CRPD)

QUEBEC CITY, CANADA
AUGUST 26, 2008
RI 21st WORLD CONGRESS

MARYLYN HOWE
BOARD MEMBER
NATIONAL COUNCIL ON DISABILITY

AND

JOAN DUROCHER
SENIOR ATTORNEY/ADVISOR
NATIONAL COUNCIL ON DISABILITY

I. National Council on Disability

Thank you for inviting the National Council on Disability (NCD) to be here today. NCD is an independent federal agency in the United States, composed of 15 members appointed by the President and confirmed by the Senate.

NCD's purpose is to promote policies and practices that guarantee equal opportunity for all individuals with disabilities, regardless of the nature or severity of the disability, and to empower individuals with disabilities to achieve economic self-sufficiency, independent living, and integration into all aspects of society.

II. Why did NCD undertake to draft a legal analysis of United States disability rights laws as compared to the United Nations Convention on the Rights of People (Background)

In March of 2007, the National Council on Disability wrote to the President of the United States regarding the recent adoption of the United Nations Convention on the Rights of Persons with Disabilities, a vital new instrument for the advancement of rights and opportunities for the more than 600 million people with disabilities globally. The Council noted the Administration's concern that for some countries, the Convention will provide a baseline standard, rather than provide the full spectrum of rights available under the Americans with Disabilities Act (ADA), and we urged the President to sign the Convention to provide the United States' clear support for the principles of the Convention and continue America's distinguished tradition as a world leader for people with disabilities anywhere they live.

Following the issuance of that letter, the Council met in Chicago, Illinois in July 2007, and discussed drafting a paper to guide NCD's future work on issues related to the Convention. This paper came about as a result of that discussion, and is intended to serve as background for the Council's informed decision on the merits of signing and ratifying the CRPD, as well as an introspection of currently prevailing laws, policies, and practices more generally. NCD also hopes that one of the outcomes from the release of this paper will be that of focusing the United States disability community on a discussion that will allow for confirmation or rejection of the premises set forth in the body of the analysis, in pursuit of a better understanding of U.S. disability law and the Convention.

As you all know, the Convention entered into force on May 3, 2008. In the six years of the drafting of the Convention, the U.S. administration provided fundamental and valued technical assistance during the eight sessions of the Ad Hoc Committee. The U.S. delegation drew on our nation's prolific experience with disability laws and policies in providing guidance on the foundational principles of the Convention. In both our mandated advisory role and that of promoting policy that enhances the lives of people with disabilities, the National Council on Disability (NCD) was pleased to support the efforts of the United States in the Convention process.

III. The Comparative Analysis

The paper endeavors to analyze the issue in the way a treaty monitoring body would - to see if any area within federal law contravenes the Convention and/or whether there are gaps where legislation or practice might be introduced or reformed to ensure compliance. This is not an empirical analysis. NCD does not endorse, nor do we disclaim, the author's conclusions. At this juncture, the CRPD has not been subjected to the scrutiny and interpretation of an international monitoring body. The CRPD creates a Committee tasked with reviewing regular reports of States Parties. It will ultimately be up to that Committee to fill in the gaps and choose between competing interpretations.

This paper identifies areas in which U.S. law is harmonious to that of the CRPD's requirements, as well as existing gaps in U.S. law when compared to each Article in the CRPD. It also highlights potential areas within the body of U.S. disability laws that would require examination if the U.S. either signed and ratified the CRPD, or desired to have its domestic disability laws and policies be of a level with the Convention's coverage.

This comparative analysis is an extremely important tool if our nation is to consider joining the global community as part of this historic Convention, or simply to reevaluate domestic laws and policies in a manner that would respond to current shortcomings and thereby maintain America's precedence in the field. This paper can therefore serve as background for an informed decision on the issue of signing and ratifying the CRPD, as well as an introspection of currently prevailing laws, policies, and practices more generally. Although the current U.S. administration does not lean towards signing or ratifying the Convention, this may be influenced by a lack of crucial information towards making that decision. Alternatively, future administrations may take a different approach to international treaties generally, and the CRPD specifically.

IV. The U.S. Legal System

Several points bear mentioning. The U.S. legal system is a federalist one, meaning that both state and federal constitutions, statutes, and common law impact the rights of persons with disabilities. This paper focuses nearly exclusively on federal law, and specifically on the primary statutes. It is not intended, nor can it be within its mandate, absolutely comprehensive in scope. Thus, while constitutional law and federal statutes rest at the top of the federal disability policy pyramid, there are multiple and various programs within the Executive branch that impact the lives of people with disabilities, although they will vary greatly in terms of longevity, sustainability, and actual impact. The paper discusses these programs to the extent that they have generally been noted by experts in the field to have been sustained and effective.

The ultimate conclusion of this paper is that there is no legal impediment to U.S. signature and ratification on the basis that, in large measure, the legal standards articulated in the CRPD align with U.S. disability law.

The U.S. disability rights agenda, premised on a social model of disability, has exerted a powerful international influence in revising legal regimes affecting people with disabilities. But the U.S. scheme, which is primarily an antidiscrimination one, has limits that are reflected in the gaps. Specifically, it has proven difficult to transform society's institutional structures and attitudes towards marginalized individuals. Further complicating the U.S. disability antidiscrimination project have been cramped judicial interpretations on threshold definition of disability issues,i as well as uneven implementation of existing federal law.ii

V. One Example

An example of all of these factors involves employment levels for people with disabilities. Observers have alternatively blamed restrictive Supreme Court decisions and noted the abysmal success rates of ADA Title I plaintiffs. Just as importantly, however, are the missing pieces in the U.S. disability policy scheme, including health insurance gaps and lack of training and rehabilitation services, which can actually create disincentives and barriers to work.

These gaps are capable of being narrowed or eradicated through either more rigorous implementation of existing U.S. laws and policies, and/or through Congressional action. To the extent that this paper identifies gaps or potential inconsistencies between U.S. disability law and the CRPD, the tools of law reform and ratification processes could serve to address and facilitate ratification by the United States.

i See National Council on Disability, The Americans with Disabilities Act Policy Brief Series: Righting the ADA, No. 6: Defining "Disability" in a Civil Rights Context: The Courts' Focus on Extent of Limitations as Opposed to Fair Treatment and Equal Opportunity (Feb. 2003), available at <<a href="https://ncd.gov/publications/2003/Feb242003">/publications/2003/extentoflimitations>.

ii See National Council on Disability, Implementation of the ADA : Challenges, Best Practices, and New Opportunities for Success (July 2007), available at <<a href="https://ncd.gov/publications/2007/July262007">/publications/2007/implementation_07-26-07>.

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