On May 19, 2020 Judge Fred Biery of the Western District of Texas entered and order enjoining various state officials from preventing individuals from voting by mail if they so desired based on a fear of contracting Covid-19. There will certainly be appeals and arguments about the ruling, but for those interested in disability law generally it serves as a reminder that “disability” is not a word whose meaning is fixed.
The Texas Election Code, which was the law at issue in Judge Biery’s opinion, has this under the heading “Disability.”
A qualified voter is eligible for early voting by mail if the voter has a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter ’s health.
It is an interesting definition because it is tied directly to the consequences of the voter’s condition with respect to voting. A voter who does not need personal assistance or risk injury to their health is not “disabled” even if they have what would traditionally be recognized as a disability – deafness for example. It also has the possibility of being very broad in the case of infectious diseases. Judge Biery doesn’t quite say it, but his ruling at least implies that the “physical condition” of not being immune to Covid-19 is a disability because under the present circumstances any personal appearance at a polling place creates a “likelihood” of injury to the person’s health.
This is very different, of course, from the definition of disability in the FHA, ADA and other federal laws. In general these laws define disability or handicap in a way that is independent of the purpose of the statute; that is, a person can have a disability even if they do not need any accommodation as a result. That similarity aside, the federal laws themselves don’t agree on their coverage. The Fair Housing Act definition of handicap is narrower than the ADA definition of disability after the 2008 ADA Amendments, and the ACAA tracks the language and regulations under the FHA. The Social Security Act, on the other hand, has a unique definition of disability that is tied to directly to the purpose of the Act, which is to provide benefits to those who cannot work. At the federal level then we have at least three different definitions of “disability.”¹
At the state level there is also considerable diversity in the definition of disability. Texas Election Law is only one example. Connecticut has specific definitions for learning disabilities, mental disabilities, physical disabilities, and intellectual disabilities. It also consistently treats “blindness” as a separate disability from any of the others. California’s Unruh Act also has its own definition of disability that is broader than the FHA or ADA in some cases.
This would all be of only academic interest except that ordinary people have to deal with the entire variety of laws. One of my clients received a letter from a therapist that said her patient was “disabled” for the purpose of the Fair Housing Act because he met the definition of disability under the ADA. I’ve heard lawyers who deal with social security claims complain that clients who got a letter from a therapist for an emotional support dog are unhappy when they don’t qualify under the much stricter definition of disability under the Social Security Act. The confusion is only increased by the various websites that through ignorance or as an intentional effort to move the needle insist that the broadest definition of disability must apply in all circumstances. “Disability” has many different meanings in different statutory contexts, so whether you are looking for information on the internet or making a decision about a request for accommodation the first step is knowing which law applies and how that particular law defines disability.
¹ Although the FHA uses the word “handicap” the word disability is often uses in FHA matters as a synonym because it is preferred by the community.