CVS wants to change Section 504 of the Rehabilitation Act. Section 504 protects people with disabilities from discrimination.
Q. What is CVS v. Doe?
A. CVS v. Doe is a court case. HIV-positive people are suing CVS. The people who sue someone else are called “plaintiffs”. The people with HIV are plaintiffs in this case. The people sued are called “defendants”. CVS is the defendant in this case. The plaintiffs have insurance coverage for their medications through CVS. This means that CVS makes the rules for what medications the insurance will pay for. The plaintiffs have trouble getting their HIV medications. They also have trouble getting advice from pharmacists about their medications. This is because CVS has particular rules for these medications.
Q. What do the people living with HIV want in CVS v. Doe?
A. CVS has a special medication program. This program is for people with complicated medical conditions. HIV is an example of a complicated medical condition. The plaintiffs in this case say the program is not working for them. They think the program discriminates against disabled people. (Discrimination is when someone is treated differently because of something they can’t control.) The program makes it harder for people with disabilities to get their medication. The plaintiffs want CVS to let them drop out of the medication program.
Q. How did this case end up in the Supreme Court?
A. Before the case came to the Supreme Court, it was in two other courts. The first court was the trial court. The trial court said that the plaintiff’s problems with CVS were not discrimination. The court said that CVS didn’t break any laws about disability rights. It said that the lawsuit couldn’t continue. The plaintiffs disagreed with the court’s decision. They asked the federal appellate court to look at the lawsuit. Another name for the federal appellate court is the Ninth Circuit. The Ninth Circuit said the lawsuit could continue. CVS asked the Supreme Court to look at the lawsuit. They hoped the Supreme Court would help them. The Supreme Court agreed to look at the lawsuit.
Q. Why does this case matter so much?
A. CVS told the Supreme Court that their medication program doesn’t break the law. They said they don’t mean to discriminate against people with disabilities. They said Section 504 doesn’t cover situations where discrimination is not intended. Section 504 is a part of a law called the Rehabilitation Act. It says that businesses cannot discriminate against people because of their disability.
Sometimes discrimination happens when no one means to exclude disabled people. This type of discrimination is called disparate impact.
Q. What are some examples of disability discrimination that is unintentional?
A. Disability discrimination usually doesn’t happen on purpose. Society isn’t set up for people with disabilities. People don’t think about people with disabilities when they’re making programs. Here are some examples of discrimination that don’t happen on purpose:
- Buildings that don’t have ramps or elevators
- Trains or buses that wheelchair users can’t get on
- Websites and apps that can’t be used with assistive technology
- Rules and programs that seem harmless but can exclude people with disabilities
We have made a lot of progress in disability rights. Laws like Section 504 make businesses and government do things to include disabled people. The intention doesn’t matter.
Q. Sometimes it’s hard to tell if something is discrimination. Sometimes, things don’t seem like they can hurt disabled people. But lots of things can hurt disabled people without meaning to. What are some examples of these things?
Rules and programs that seem harmless can actually hurt disabled people.This happens a lot. During the pandemic, there wasn’t enough staff and equipment to give everyone the same care. States had to figure out who got care and who didn’t. Some states did this by creating rules around “life years”. People who weren’t expected to live at least ten years more weren’t considered as important. Someone who was expected to live longer got better care.
Example:
Joe and Matt both have COVID-19. Joe is 30 years old. He has no other medical conditions. Matt is 80 years old. He has a heart problem. He also has lung cancer. Joe is expected to live longer than Matt. Joe gets treatment for COVID-19. Matt does not.
These rules made people with disabilities less likely to get care. Lots of people with disabilities argued that this was discrimination under Section 504. We used Section 504 to make sure we got care. Now CVS wants to weaken 504.
There are many ways disability discrimination happens by accident. Some examples include:
- Requiring a driver’s license for jobs that don’t require driving
- Letters from the government that sent in inaccessible formats
- Housing rules that don’t allow group homes for people with disabilities
- Not allowing motorized wheelchairs and scooters in national parks
- Some programs don’t allow wheelchair users to participate. They say that it is a safety issue. They do not allow wheelchair users who cannot evacuate by themselves. Sometimes, they say that wheelchairs are a “fire hazard”.
Power companies sometimes shut off power to prevent wildfires. Many people with disabilities need power for medical equipment. This can include things like ventilators and power wheelchairs. People with disabilities can die when the power shuts off.
Some programs don’t allow people to bring a personal care attendant. Some programs make a personal care attendant pay extra money.
CVS said Section 504 allows discrimination if it happens by accident. They said Section 504 only protects disabled people when someone discriminates on purpose. CVS wants the Supreme Court to agree with them. If the Supreme Court agrees, businesses can say they didn’t mean to discriminate. They won’t break the law if they didn’t mean to treat disabled people differently.
Q. Why do we say that Section 504 covers things that discriminate by accident?
Section 504 is very short. The rules that tell businesses how to follow the law are called federal regulations. The first federal regulations for 504 happened in 1977. They said that anything that treats disabled people differently is discrimination. They didn’t say that discrimination only counts when it’s done on purpose.
The movie Crip Camp showed how disabled people fought to get the 504 regulations signed. (Crip Camp came out in 2020. It was nominated for an Oscar award.) There were a lot of ways disabled people fought. Some people protested. Some went into federal buildings and refused to leave. (This is called a sit-in.) Lots of people talked with government officials and business leaders.
Parts of the federal government put out their own 504 regulations. These regulations help the different parts of the government follow the law. The regulations said that anything that treats disabled people differently is against the law. It doesn’t matter if someone discriminates on purpose. Congress always knew what the regulations said. They’ve changed Section 504 a few times. They never changed the language about the type of discrimination that’s against the law.
CVS doesn’t think the regulations matter. They think our fight for the regulations doesn’t matter either.
Q. Why does Section 504 matter? What about the ADA?
Section 504 and the Americans with Disabilities Act (ADA) are similar. Both are disability rights laws. They use the same definition of discrimination. The two laws cover different parts of society. Some parts of society are covered by both laws. Some parts are only covered by one law.
Section 504 covers three things:
- Federal programs (like Medicaid and Medicare)
- Jobs in the federal government
- Groups that get money from the federal government
The Affordable Care Act uses Section 504 to define discrimination in health care.
The ADA covers other things:
- Jobs that aren’t in the federal government
- State government
- Local government
- Private businesses that are open to the public (like restaurants)
Some parts of society are only covered by Section 504. If CVS wins this case, there will be much less protection for people with disabilities. There will be less protection in a lot of areas. Some of these areas are:
- Programs run by the federal government. Some programs run by the federal government are:
- National parks
- Veterans Administration programs
- Medicare
- Social Security benefits (SSI and SSDI)
- Health care rights under the Affordable Care Act (ACA). Health care rights for disabled people are talked about in Section 1557 of the ACA.
- Groups that get federal money. If CVS wins this case, groups that get federal money can discriminate against disabled people. Federal agencies won’t be able to tell them this is against the law.
We’re not sure if jobs in the federal government will be affected right away. There is specific language about employment in Section 504. This was added by Congress in 1992.
Sometimes, Section 504 gives more protection than the ADA.
Q. Does this case threaten the ADA?
A. CVS says their argument doesn’t put the ADA in danger. This is a lie.
Title II of the ADA covers state and local government. Title II is based on Section 504. It uses the same definitions that Section 504 does. Congress said that Title II applied 504 to state and local government. If the Supreme Court changes Section 504, courts could change Title II, too.
Q. Why is CVS doing something that hurts the disability community?
A. Many companies say they help the disability community. CVS thinks they help the disability community. They talk about hiring disabled people. They got a perfect score on the Disability Equality Index (DEI). (The DEI scores how well businesses include disabled people.) The Department of Labor gave CVS an award in 2020 for including disabled people.
But CVS’s argument in this case hurts disabled people. Even if they don’t mean to.
There are other things CVS can do in this case. There are laws that protect the rights of businesses. There was also a Supreme Court case in 1985 that helped businesses. These laws don’t hurt protections for disabled people. CVS could go back to the trial court. They could tell the court that the plaintiffs are getting the same access to their program as nondisabled people. They could tell the court that what the plaintiffs want would change the program too much. They could tell the court that it would be too hard to change the program. If the plaintiffs win the case anyway, CVS could improve the program.
Q. What can I do to protect Section 504?
We need to tell CVS to stop this case. You can tweet CVS. Tell them to change their mind. Tag CVS in your tweet. You can also tell CVS why Section 504 matters to you.