Herring defends disability discrimination protections

mark herring
Mark Herring

Attorney Mark R. Herring has joined a coalition of 18 attorneys general in urging the U.S. Supreme Court to preserve critical legal tools to fight discrimination against Americans with disabilities.

Herring and his colleagues have filed an amicus brief in CVS Pharmacy v. Doe, a case concerning whether a health plan is discriminating against HIV-positive individuals by limiting where they can obtain medication for in-network prices. The brief does not support either party in the case.

Instead, it urges the Supreme Court to uphold the existing legal standard, which enables challenges to public programs that, through thoughtless design or implementation, have the effect of discriminating against people with disabilities, even if there was no intent to disadvantage those individuals.

“Discrimination of any kind against anyone, including individuals with disabilities, is unacceptable,” Herring said. “Unfortunately, many times discrimination against individuals with disabilities is unintentional and the result of thoughtlessness and inattention to the specific needs of people with disabilities, which is why I am encouraging the Supreme Court to uphold these protections so that we can continue to combat discrimination against individuals with disabilities.”

The Rehabilitation Act was passed in 1973 to integrate individuals with disabilities into American life. A key part of the law, Section 504, prohibits discrimination based on disability in programs or activities receiving federal funds, and authorizes legal challenges to discriminatory policies. In a 1985 decision, Alexander v. Choate, the Supreme Court explained that under Section 504, individuals with disabilities must have “meaningful access” to a particular government benefit or program.

Over the past 35 years, this standard has become a key part of American law and has enabled challenges to policies that have a discriminatory effect on individuals with disabilities, even when the programs are not intentionally discriminatory.

In their amicus brief filed in CVS Pharmacy v. Doe, Herring and his colleagues do not take a position on the precise outcome of this case. Instead, regardless of how this case comes out, the coalition urges the Supreme Court to preserve the existing standard for challenging disability discrimination because:

  • Barriers to full participation by individuals with disabilities are often unintentional: Discrimination against individuals with disabilities often stems from indifference and thoughtlessness rather than intentional actions. Historically, individuals with disabilities faced exclusion from core parts of American society—from health care to education to transportation—because of unintentional barriers and a failure to consider how they could gain access. To ensure inclusion of individuals with disabilities, it is necessary to break down barriers to their participation, including those that were created unintentionally.
  • Congress intended the Rehabilitation Act to ensure meaningful inclusion of individuals with disabilities: The Rehabilitation Act was intended to end the exclusion of individuals with disabilities, and the architects of Section 504 explained that the primary engines of disability-based exclusion were often “oversight[s],” or instances of “societal neglect.” Congress also reinforced Section 504 by building on it and incorporating it into subsequent legislation.
  • The states rely on this standard: The states have relied on this legal standard to combat disability discrimination for decades and have used it to guide their actions and craft their own laws and regulations.

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