CVS Wants the Supreme Court to Gut Non-Discrimination Protections for People with Disabilities. It Could Set Us Back Decades.

We can’t go back to the old days of exclusion and discrimination. The disability community will fight this outrageous attack on our rights and our history.

Susan Mizner, Director, Disability Rights Program, ACLU

Arlene B. Mayerson, Directing Attorney, Disability Rights Education & Defense Fund

Aaron Madrid Aksoz, Media and Engagement Strategist, ACLU

“I’m sorry, we don’t serve people with disabilities.”
“That’s okay, I don’t eat them.”

This is a long-standing joke in the disability community, but it is based in reality. Many younger people might be surprised to learn that, not long ago, people with disabilities could be refused service with impunity. College students with disabilities were — if allowed to go to college — housed in the infirmary, not with their peers. Teachers who used wheelchairs — if able to get a teaching degree — were denied jobs because their wheelchair posed a “fire hazard.”

Just decades ago, disability rights activists led protests and sit-ins at federal buildings across the country to bring light to these experiences. One of these sit-ins in 1973, lasting 25 days, became the longest occupation of a federal building in history. The effort was a rallying cry for lawmakers to implement Section 504 of the Rehabilitation Act — the first federal disability civil rights law.

It took years of advocacy, education, and protest to achieve this victory. Now, this very law is under threat again.

In December, the Supreme Court will hear arguments for CVS v. Doe, a case that threatens to roll back decades of disability rights progress. The case is about a relatively small issue: whether people living with HIV/AIDS can opt-out of a “mail-delivery only” program to receive their medications from CVS. But CVS, instead of addressing the case on its merits — or, frankly, just allowing these plaintiffs the reasonable accommodation they seek — has decided to attack the very foundation of disability rights laws.

CVS has chosen to argue that disparate impact cases can no longer be brought under Section 504 of the Rehabilitation Act. Once obscure outside of legal circles, disparate impact is the backbone under which legal challenges to practices that disproportionately impact people with disabilities are brought.

We often think of discrimination as fairly personal. For example, when the wedding cake maker refuses to bake a cake for a same-sex couple, they have deliberately, and intentionally decided to discriminate against the same-sex couple. Disparate impact cases are different. They address situations in which seemingly neutral policies have discriminatory effects. In disability rights litigation, these cases are critical. People with disabilities regularly face exclusion and segregation, not because of anyone’s intention to exclude them or segregate them, but because people with disabilities aren’t being considered. The discrimination is one of “benign neglect” or thoughtlessness, not hatred or disapproval.

Disparate impact cases brought under the Rehabilitation Act address discrimination that denies people with disabilities full participation in society. The cases address apparently neutral discriminatory policies like: failing to provide wheelchair-accessible public transportation, creating zoning ordinances that exclude group homes for people with developmental disabilities, or providing college course materials in formats that are unreadable by blind students.

CVS now argues that people with disabilities only have a right to bring discrimination claims if the discrimination was intentional, not merely thoughtless. If disability laws were confined to only intentional acts of discrimination, civil protections that allow people with disabilities to fully participate and contribute to society would become meaningless. A company that makes huge profits from providing medications — many of which are for people with disabilities — now has the audacity to attack our ability to be included in the fabric of society.

Before Section 504, people with disabilities had no legal ability to challenge these practices. Yes, a restaurant could simply shut their door in the face of a person in a wheelchair, or with a white cane, or missing an arm, or with cerebral palsy. Sidewalks had no curb cuts, buildings were completely inaccessible to wheelchair users, and no blind person had a right to materials in Braille. Children with disabilities were routinely excluded from school with their peers, and often warehoused in institutions. This reality is what led disability activists to fight for the Rehabilitation Act.

We can’t go back to the old days of exclusion and discrimination. CVS should drop this argument, and remove this case from the Supreme Court docket. The disability community – and the ACLU – will fight this outrageous attack on our rights and our history.