I’ve never seen a sign in a window of a business that says “CRIPPLES KEEP OUT,” have you? I’ve also never seen a sign where that well-known access symbol with the white wheelchair stick figure on a blue background has a diagonal slash mark canceling it out.
We never see signs like these on display in polite society, so one might draw the conclusion that, therefore, discrimination against disabled folks does not exist. And one would be dead wrong.
Not being allowed to pick up the medications in person at the same price was unfair for various reasons.
The countless obstacles that exclude disabled people from so many aspects of life are not erected by smirking, moustache-twirling, vaudeville villains who are easily identified, demonized, and vanquished. It doesn’t take a “CRIPPLES KEEP OUT” sign to make a wheelchair user like me not feel welcome at certain establishments: Steps at the entrance have the same effect.
But if the bosses of the CVS drugstore chain have their way in court, the legal definition of disability discrimination could be diluted to only include actions that are intentional.
In the case of CVS v. Doe, people who are HIV positive filed a federal lawsuit because the pharmacy company made certain drugs that they need only available at an affordable price if ordered via mail. Not being allowed to pick up the medications in person at the same price was unfair for various reasons, the plaintiffs charged, including that it denied them the opportunity to consult with a pharmacist.
They also claimed the policy violates Section 504 of the Rehabilitation Act of 1973, which prohibits recipients of federal funds from discriminating against people with disabilities.
But CVS’s lawyers weren’t content to just defend the policy. Instead, they went for the jugular by asserting that the law doesn’t apply because the policy wasn’t formulated with the conscious intention of harming disabled people, and Section 504 only outlaws intentional discrimination.
A lower court judge dismissed the case, but that decision was overturned on appeal declaring that Section 504 does indeed outlaw unintentional discrimination.
So CVS lawyers took the case to the U.S. Supreme Court, and the Justices agreed to hear it. Siding with CVS would have reduced the concept of disability discrimination to such a ridiculous caricature that it would render Section 504 practically meaningless. And it’s a good bet that the precedent will then be used to gut the Americans with Disabilities Act and other historic civil rights laws.
Organizations such as the ACLU, the American Association of People with Disabilities, the Disability Rights Education and Defense Fund and United Cerebral Palsy filed an amicus brief in the case urging the Supreme Court to reject the CVS argument. A hashtag campaign was launched that was designed to get CVS to drop the Supreme Court appeal.
And on November 10, a CVS VP named David Casey said in a statement that CVS would no longer pursue the Supreme Court appeal and would instead collaborate with some of the disability rights organizations that filed the amicus brief to try to find solutions that “will help protect access to affordable health plan programs that apply equally to all members.”
We’ll see what becomes of that effort. But whew, at least for now. If CVS had won this case, it may well have meant that anyone who mistreated the disabled would be able to get off the hook just by saying, “Oops! Sorry. We didn’t mean it.”
Editor’s note: This story was updated shortly after initial publication to reflect late-breaking developments.