The ADA and Models of Equality

Abstract

The drafters of the Americans with Disabilities Act are facing the difficulty of reconciling the Act’s language—which envisions the achievement of equal opportunity and emphasizes the need for affirmative steps to eliminate barriers to inclusion and participation for persons with disabilities—with the limits of the formal equality model applied in the United States Supreme Court’s interpretation of the Fourteenth Amendment. This article discusses the shortcomings of the Supreme Court’s traditional equal protection doctrine, and its requirement for discriminatory intent or improper motive, when applied in the context of persons with disabilities. After briefly examining the contrasting material equality model that has come to prevail in international disability antidiscrimination law, the article focuses on Canadian constitutional equality provisions and jurisprudence. The Supreme Court of Canada explicitly rejected the limits of the American formal equality model when first interpreting the Canadian Charter of Rights and Freedoms, and the difference in result for persons with disabilities is evident in the Court’s recent 1997 decision, Eldridge v. British Columbia (Attorney General). While the Canadian approach bears its own anomalies of reasoning, it clearly recognizes something that the American approach has so far failed to admit: that the “same” treatment can perpetuate exclusion, discrimination, and inequality for persons with disabilities.