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THE AMERICANS WITH DISABILITIES ACT AT 25 YEARS: LESSONS TO LEARN FROM THE CRPD

Abstract

In this Article, I argue that the Americans with Disabilities Act (ADA) and the subsequent ADA Amendments Act (ADAAA), have not realized the goal of ensuring equality for people with disabilities. I suggest that the Convention on the Rights of People with Disabilities (CRPD), adopted in 2006 by the United Nations, offers a new approach to realizing the right to equality for people with disabilities, even in the US, where we have not yet ratified the CRPD. I begin the Article with an analysis of the shortcomings of the ADA, including its medical approach to the definition of disability, its narrow application of the requirement of reasonable accommodation, as well as the broad defenses in contrast to the limited damages it offers to claimants, even after the 2008 ADA Amendments Act. I also argue that the ADA’s limited success in achieving equality for people with disabilities is likely due to the fact that it was never intended to achieve equality; rather, it sought(only) to move people from reliance on government benefits to employment by prohibiting discrimination. In contrast to the ADA’s limited anti-discrimination approach to disability rights, I present the advantages of the human rights approach of the CRPD, including its broad definition of equality, its use of the social model of disability, its recognition of the right to reasonable accommodation as a free standing human right, and its adherence to the interdependence of civil, political, economic, social, and cultural rights as well as negative and positive rights. The CRPD also differs from the ADA by valuing independence alongside the need for support by some people with disabilities. It is this “right to support,” based on feminist legal theory that offers an opportunity to ensure greater equality and participation in society for people with disabilities but which also poses a challenge to such American values as independence and self-reliance. Based on the limitations of the ADAAA and the advantages of the CRPD, I conclude that that the CRPD should play an important role in the implementation of the ADAAA as well as in the development of new laws and policies to advance the rights of people with disabilities in the U.S., even in the absence of Senate ratification of the CRPD. This article also refutes the arguments presented against US ratification of the CRPD..

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Additional Information

Country: United States of America
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Source: The Americans with Disabilities Act (ADA)
When: 21/7/2015

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