Courts Increasingly Respond to “Hidden” Disabilities

An emerging trend for the Americans with Disabilities Act (ADA) and the courts is extending to how courts identify and accommodate defendants, witnesses, and jurors with non-apparent disabilities. Beyond evident disabilities with which most people are familiar, non-apparent disabilities include those pertaining to various forms of physical illness and cognitive development disorders.

The definition of cognitive development disabilities and disorders is “Disturbances in the mental process related to thinking, reasoning, and judgement.” A person with a cognitive disorder may have difficulty understanding and processing a judicial hearing without special accommodation. Cognitive disorders have varying degrees of severity, the most severe being mental retardation. Less severe conditions include learning disabilities such as Attention Deficit Disorder (ADD), Attention Deficit Hyperactive Disorder (ADHD), and dyslexia.

A recent survey prepared by the ADA Resource Center for the State Courts Project at the National Center for State Courts (NCSC) showed that some courts already are making accommodations for those dealing with non-apparent disabilities. Some of those accommodations include:

  • Modifying court schedules (for sleep apnea or chronic fatigue)
  • Providing working refrigeration for people to store medicine
  • Allowing for more frequent breaks or storing candy in the court (for diabetes)
  • Modifying lighting (lighting/chemical sensitivities)
  • Requesting that people not wear perfume or aftershave in court (severe allergies)
  • Limited time on the stand (ADD and ADHD)

Diabetes, severe allergies, chemical sensitivities, sleep apnea, and chronic fatigue are just a few of the physical illnesses that our judicial system has recently accommodated. Because of the increased knowledge and acceptance of various physical illnesses, the public is able to identify and accommodate these non-apparent impairments more readily. Overall, cognitive disabilities are more difficult to recognize and are often overlooked more frequently than physical illnesses.

Understanding the different levels of non-apparent disabilities is the first step toward creating equality for those entering the courtroom. The disabled need to know that accommodations in the courtroom can and will be made to assist them if possible. Individuals with non-apparent disabilities may be embarrassed to ask for assistance for fear their disability may be questioned. One way to help the public feel more comfortable in asking for this assistance is to evaluate or establish various customer service methods that make the public aware of what accommodations are available. Offering the information up front may help people with non-apparent disabilities come forward if they know the court is ready to assist them.

Another hurdle in overcoming discrimination against those with non-apparent disabilities is a court’s verification that a person does indeed have a disability. It is evident that people with physical disabilities do not have to verify that they are indeed disabled, whereas people may question the validity of non-apparent disabilities. To many people, asking for documentation is considered intrusive, which can make verification a sensitive matter.

As a result, it is best to take people at their word when dealing with non-apparent disabilities, rather than focusing on identifying different types of disabilities. It is, however, not unrealistic to ask a person the nature of his/her disability. Asking a person with a non-apparent disability about the disability not only gives one a better understanding of what they’re dealing with, but also gives them an opportunity to accommodate that individual.

In essence, it is much more important to the ADA to focus on what a person needs to facilitate his/her participation in the courtroom, than to prove that a disability exists.

Amanda Murer is an assistant at the Information Resource Center at the National Center for State Courts (NCSC). Her work also appears in the NCSC’s 2001 Annual Report on Trends in the State Courts. She can be e-mailed at: amurer@ncsc.dni.us

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