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CVS' attack on Section 504 threatens disability rights
In CVS v. Doe, the pharmaceutical company claims Section 504 of the Rehabilitation Act does not apply to claims of "disperate impact."
I watched “Crip Camp: A Disability Revolution” a few weeks ago. It wasn't my first time watching the film about the growth of the disability rights movement, but it was the first time I reflected on its emphasis on Section 504 of the Rehabilitation Act. It was then I realized that the Americans with Disabilities Act -- often credited as the staple of disability rights -- likely wouldn't have been as expensive, or even enacted to begin with, without Section 504, which prevents disability discrimination.
But here we are, two weeks later, pharmaceutical giant CVS is challenging the monumental policy. In CVS v Doe, five individuals living with HIV are suing the company for requiring those who need “specialty medications” to receive them by mail, rather than their local pharmacy. The group argues that the policy effectively prevents them from receiving the care they need and represents discrimination based on their disability.
CVS is arguing that Section 504 does not protect against claims of “disparate impact.” In other words, the federal law does not shield individuals from neutral policies or practices that have a disproportionate impact on a minoritized group, in this case disabled people.
As a disabled person, this case, the thought that a corporation that ranked fourth in the 2021 Fortune 500 is challenging disability rights, human rights, my rights is unfathomable. It's scary. The fact is: CVS has tremendous market power, and I wouldn't consider this a guarantee that the system will side with disability rights. It might, but it's not automatic.
But as the Judge David L. Bazelon Center for Mental Health notes, the corporation’s argument and case as a whole rests on one word: neutral. The case is, essentially, “is a case neutral if it disproportionately impacts people with disabilities?” The decision has drastic implications for disability rights because since the onset of the disability rights movement, advocates have been fighting against policies that seem neutral but exclude disabled people. It's the backbone of the disability rights movement.
Using this rationale, a company could argue that it doesn't need to have a ramp or elevator because only disabled people need it. It would mean a company could get away with everything as long as their lawyers could argue the policy is neutral.
And as disability rights organizations like the National Disability Rights Network argued in an amicus brief last week, CVS’ claims involve differential treatment and failure to make reasonable accommodations, not disparate impact claims. Another amicus brief from last week -- filed by American Association of People with Disabilities, The Arc of the United States and other organizations -- pointed out that most discrimination against people with disabilities comes from thoughtlessness. Removing the ability to get relief from such discrimination would undermine the purpose of Section 504, the latter argues.
They are right.
This case, filed over equal access to medicine and pharmacies, is so much more than a disabled person not being able to physically retrieve medication. It's about access. It's about the denial of access and accommodations. It's about whether the courts -- the country -- will make inaccessibility and disability discrimination legally acceptable and undo years and decades of progress. It's about the decades of the disability rights movement. It's about the work of Judy Heumann and Bobbi Linn. It's about recognizing the critical moment we are in, the critical moment this could be. A single ruling could set things so far back. It's about recognizing Section 504 and disability rights are directly under attack, and the only question is: what side will our country take?
Thoughtlessness is another -- a nicer -- way of saying ignorance. But when I say ignorance, I'm not talking about malicious intent, exactly. Ignorance isn't always somebody saying “I don't want a wheelchair user accessing my store”; it's sometimes a honest mistake. I have learned it is the story of the disability experience; unless they or their family or friends are impacted by disabilities, people without disabilities don't think about disability. And corporations and businesses are even worse because they associate accessibility and other disability accommodations with extraneous costs. And unlike small businesses, there are many decision-makers, so the chances of one or two board members impacted by accessibility actually swinging the group's decision are slim.
Regardless of the situation, big or small, there's no excuse for ignorance and businesses need to be held accountable. I have never lived without the ADA, but I know for a fact that some public places still aren't accessible, and corporations like CVS are demeaning disability rights, even though it's been over three decades since the legislation was enacted.
I can't believe it's 2021 and I am writing about why discrimination against disabled people is not a neutral act. It disgusts me, but I question if I am really surprised. Something like this can only hide in the gray area for so long before showing its true colors, and I see society's historic indifference toward disability rights shining through. But it won't be long before the scales tip one way or the other, and it is at that moment when we will either take a small step forward or an incomprehensible step back.