Last updated: September 26, 2019
Topic: BusinessConstruction
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There is no shortage of important and noteworthy legislation that has been passed in our nation’s history. Some have been regrettable and some have exponentially increased the rights and freedoms of every American citizen. Despite the feelings of the most ardent anti nationalist, America offers one of the highest standards of living through both economic and social freedoms. However, as it is the case with most realities, their foundation can often times be found many years in the past. This is no truer than in regard to the United States of America and the freedoms that it now gives its citizens. This reality can be found in three specific pieces of American legislation which, either directly or indirectly, has greatly increased the rights and freedoms that we as American citizens, now regard as our birthright.

At the start of the Civil War, Abraham Lincoln said “”this question of Slavery was more important than any other; indeed, so much more important has it become that no other national question can even get a hearing just at present.”[1] Both the North and South believed that they were doing the will of God and both expected him to step in and incite victory for their separate cause. The Northern states believed that the institution of slavery would die of natural causes as too did the framers of the Constitution any many were not willing to fight for the cause of the slave but rather for the preservation of the Union. Southerners viewed slavery as absolutely essential to their economy and way of life and believed as well in the inferiority of African Americans. The South fought to preserve the institution of slavery as well as seeing Northern troops as invaders of their way of life.

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The 13th amendment states: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, nor any place subject to their jurisdiction.”[2] This was a broad expansion of the power of the federal government. Despite the fact that the proclamation was issued in 1863, it would not be until the freedom of the slaves and the preservation of the Union was fought for and won through a Northern victory in the Civil War. Lincoln was correct as he stated in the minutes before signing the proclamation “That if I am to be remembered for anything, it will be for this.”[3]  Not only did the 13th Amendment free four million slaves, but it also served as foundation for other amendments to come. The one which immediately followed in July of 1868 was the 14th amendment which was built upon the strength of the 13th as well as the central ideas and purposes for which it was designed to serve.

Not since the Dred Scott case of 1857, did the Supreme Court so forcefully proclaim that African Americans were not equally protected under the law. The case began in 1892 when Homer Plessey, an individual only 1/8th African American, but still dark enough not to be considered white, attempted to board a train in Louisiana in the section reserved for whites. He refused to move when asked and was arrested. He was found guilty and fined $300.[4] He appealed the ruling all the way to the Supreme Court in 1896 and one of the most important cases in United States History was about to be heard. The historical and social importance of the ruling cannot be underestimated. There is no way of knowing the blow that could have been levied against segregation had the Supreme Court Justices ruled that segregation was unconstitutional and against the law. What is known however, is the fact that of the eight justices who ruled in the case, seven ruled in favor of the railroad company and in response, gave their famous and what many considered to be a highly incorrect explanation of  “separate but equal” as a way to justify the conditions which African Americans faced on a daily basis. Its majority opinion is still one of the most controversial that the Supreme Court has ever given down to the people of this country.

The majority opinion was written by Justice Brown and some of the highlights states: “It was said that the act of a mere individual, the owner of an inn, a public conveyance or place of amusement, refusing accommodations to colored people, cannot be justly regarded as imposing any language of slavery or servitude upon the applicant.” This was in reference to the fact that Mr. Plessey used in his defense, the 13th and 14th amendments as a reason for the unjustified means of segregation laws. Justice Brown does not see the connection and will continue to call it a fallacy to try to connect the two. He continues:

“Laws permitting, and even requiring, their separation, in places where they are liable to be brought into contact, do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which have been held to be a valid exercise of the legislative power even by courts of states where the political rights of the colored race have been longest and most earnestly enforced.”[5]

 

Justice Brown also cannot make the connection between separate and unequal. Justice Brown, as well as the others who voted in the majority, are either too far displaced from the effects and conditions of segregation to see that inferior conditions are more the norm than the exception, or is simply keeping in line with the prevailing ideology of the part of the country in which they once resided. In what becomes one of the more famous portions in the majority opinion, Justice Brown stated: “We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”[6] However, the lone dissenter, Justice Harlan disagrees and is able to see beyond the lies.  He stated: “But in view of the Constitution, in the eye of the law, there is in this country, no superior, dominant ruling class of citizens. There is no caste here. Our Constitution is color blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal under the law.”[7] The Supreme Court would be in full agreement of this until 1954 with the decision Brown vs. Board of Education in which segregation was outlawed and the Plessey vs. Ferguson ruling was ruled as unconstitutional.                                                                        As important as the legislation to bar racial and gender discrimination in the classroom and workplace, for a long time, efforts to battle discrimination based upon the preconceived notions that people with mental and physical handicaps are somehow inferior and incapable of completing many of the same functions that every other American takes for granted, the American Disabilities Act, signed by President George H.W. Bush in 1990, helps to give those less fortunate, the same rights as do every other American. The United States of America had a less then stellar history in regard to society’s treatment of people usually just cast off as “retarded.” Very little accommodations were given to people who needed the entrance to various buildings set so that their entrance could be allowed. People, who were forced out of work due to an injury that they sustained on the job, also received a wider array of benefits from this Act. In response to various businesses and organizations actually fighting individuals’ attempts to be given the same opportunities as everyone else, even to be allowed entrance into various government buildings, was met with resistance as the calls of additional costs and other excuses were given.                                                                                                     Fast forward more than a hundred years and there was still a need to recognize the importance of those who for so long, had been forgotten by society. The American with Disabilities Act does not give blanket protection to possible job applicants, regardless of their physical or mental impediments. However, no employer shall be allowed to discriminate on the basis of physical or mental impediment when concessions can be made to help accommodate the individual, while at the same time, the employer can be expected to enjoy no drop in quality of productivity. This is where the problem lies and proves that the Act to be a lightening rod for controversies. It is within the subjective nature of the employer to first say whether or not one’s disability negates their desire to work in a certain field. Judicial challenges have been both won and lost based on the courts’ belief that the Act has been violated or not. Sometimes, what exactly constitutes discrimination can be one of opinion. If a person is missing an arm from birth, can he or she still work in a factory without causing the employer to suffer a loss in productivity and quality? Can a person in a wheelchair work in a field where constant and independent travel is required; where business meetings and presentations of certain proposals are an important part of the job? The answer to those questions can be found in the exact job as well as with the exact person and their disability. Sometimes the answer might be in the affirmative and other times, it is impossible for that person to complete the job that is required. The Act recognizes this and without writing a specific law for every condition and every job, the Act will still and always remain, subjective. However, the fact that there are other conditions besides race and gender which must be protected by the federal government is shown here with the Americans with Disabilities Act.                                                                                                                                                    The American with Disabilities Act is broken up into various parts, or ‘Titles. Title I was passed on July 26, 1990 and took effect on July 26, 1992.[8] The Act prohibited employers, both state and federal, to discriminating qualified individuals based upon their disability. An individual who is considered to be disabled, are ones who: Has a physical or mental impairment that limits their ability to conduct and complete, routine activities or one who  has a record of such impediments. Reasonable accommodations must be made for the applicant at a job or a person who wants to take part in the activities of a Union or who wishes to simply access the various federal buildings and places of business across the nation. The exact language that is required to set forth such acts is somewhat vague. Reasonable accommodation would include, but is not limited to, “making existing facilities used by employees readily accessible to and usable persons with disabilities. Job restructuring, modifying work schedule, reassignment to a vacant position, or acquiring or modifying equipment or devises, adjusting modifying examination, training materials, or policies, and providing qualified readers or interpreters.” (www.eeoc.gov) These accommodations are required if it does not result in undue hardship to the employers method of operations and financial bottom line. “An employer is not required to lower quality of production standards to make an accommodation, nor is an employer obligated to provide personal use items such as glasses or hearing aids.”[9]                                                                                                                                One of the goals of every group home in America today, is to give the residents within their sphere of influence, the greatest degree of freedom and independence as they integrate into the community setting. Even though many within these homes can recognize the fact that they have certain disabilities, the desire to be treated as equals is paramount to their happiness. So too is the case with people who are out in the work force and who wish only to be treated as equals to their business counterparts. The motivation behind the Act is not to give the individual special attention and advantages over his counterparts, but to help level the playing field. This comes more from the fact that employers will seem a bit reluctant to hire one with a disability due to either facts about that person’s physical or mental impediments or because of preconceived notions and assumptions that relate to a person with such a disability.                                                                                                      The Act focuses more on public perception regarding the presumption of various inferiorities because one is missing a limb or is in a wheelchair. This is what the Act seeks to accomplish. In the same way that an employer is not permitted to allow his or her preconceived assumptions about a certain gender, race or religion when deciding if an applicant would serve as an important addition to the company and therefore would wish to hire that person, also employers are not permitted to discriminate based upon preconceived notions about a person’s physical or mental impediments. “Employers may not ask job applicants about the existence, nature of severity of a disability. Applicants may be asked about their ability to perform specific job functions. A job may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in similar jobs.”[10] The playing field must be as level as possible.                            This temptation is recognized by the Act and thus, the statue is included. There are many additional aspects of the Act which are vague as well. “The term “reasonable accommodation” may include–making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.”[11]   This also can include modifying existing facilities that are used by employees, shifting and moving work schedules in order to be more accommodating and to restructure a job for the benefit of the employee. Again, this does not mean, nor does it encourage the employer to create a new and phantom job for the employee just so that he or she can be included within the payroll. The Act protects the employer as well. What exactly constitutes “reasonable accommodations,” even though covered in the text of the Act, is still subjective.                                                    The critique of this Act can be none other than positive, along with the hope that its positive work will continue to improve and grow. In the fifteen years since the Act went into effect, many in America, have come to regard the rights that are covered, to be self evident. The employer’s inability, from government mandate, to discriminate against an individual based upon their physical or mental impediment when that impediment does not equate to the employer’s loss of quality of production at his or her facility is one of the most important and overdue pieces of civil rights legislation. The Act has been likened to the 1964 and 1965 Civil Rights Bills. Both affect millions of people, both were long overdue in their passage and both expand the rights of people to such a degree, that one can hardly fathom a time in which both The Act also does not give blanket protection for those who might want to work in a specific field but who simply cannot. This level of optimism is something which should be applauded. However, when it is not based upon reality, the individual as well as his or her hypothetical employer would suffer. The Act recognizes this and as a result, employers are protected as well. Most people with mental and physical disabilities know the ends of their limitations and only want to be treated as equals; not to be given special treatment. Employers should not see the Act as one that is against them and will serve to decrease their financial bottom line. This is not the case at all. However, in the ability and desire to protect both employer and employee in this matter, there will be cases in which one of the other parties feels as though their rights have been trampled upon.                                                                                 .               All of the aforementioned, despite being separated by more than a hundred years, all have one very important aspect in common: all three exponentially increased the rights of Americans who, for far too long, were either forgotten, or blatant attempts were made in the pursuit to curtail their rights. This is still a perpetual goal but nobody can doubt that progress has not been made in this respect. These three pieces of American legislation and the men and women, who helped to make their passage come to fruition, help to leave a proud legacy within American history.

WORKS CITED

Burns, Ken  The Civil War  New York: Steeplechase Films  1989

Brenneman, Jules Americans with Disabilities Effects Broadened The New York Times July 27, 1992  www.query.nytimes.com retrieved January 31, 2008

Commanger, Henry Steele Documents of American History  New York: Century Publishers 1947

The American with Disabilities Act of 1990 www.eeoc.gov/policy/ada.html  Retrieved February 1, 2008

The Supreme Court  New York: PBS Thirteen Productions 2007

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[1] Burns, Ken  The Civil War  New York: Steeplechase Films  1989
[2] Commanger, Henry Steele Documents of American History  New York: Century Publishers 1947
[3] Burns, Ken  The Civil War  New York: Steeplechase Films  1989
[4] The Supreme Court  New York: PBS Thirteen Productions 2007
[5] Commanger, Henry Steele Documents of American History New York: Century Press 1947 section v. pg 88
[6] Commanger, Henry Steele Documents of American History New York: Century Press 1947  section v. pg. 89
[7] The Supreme Court  New York: PBS Thirteen Productions 2007
[8] Brenneman, Jules Americans with Disabilities Effects Broadened The New York Times July 27, 1992  www.query.nytimes.com retrieved January 31, 2008
[9] The American with Disabilities Act of 1990 www.eeoc.gov/policy/ada.html  Retrieved February 1, 2008
[10] The American with Disabilities Act of 1990 www.eeoc.gov/policy/ada.html  Retrieved February 1, 2008
[11] The American with Disabilities Act of 1990 www.eeoc.gov/policy/ada.html  Retrieved November 27, 2007

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