Autism, Discrimination and the Law
Bill Long 4/11/08
A Very "Thin" Book (2008)
This book so entitled, by English authors James Graham and Nicholas Graham, has just been released by the "autism-friendly" London-based publisher Jessica Kingsley. I took an immediate interest in it because there is, to date, very little literature on legal issues related to autism spectrum disorders ("ASD"). This is not an unusual or unexpected situation. Indeed, autism didn't even have a 'name' until the mid-1940s. Before the 1980s, the incidence of autism was thought to be about 2/1000 people. But in the 1990s and this decade the number of autism cases has exploded, so that now there are some reports suggesting the incidence of childhood ASD may approach 1% of the population. It has been such a dramatic spike that parents, researchers, doctors, educators and interested policy-makers are searching for explanations, as well as means of paying for, treatments and training for this burgeoning population.
In any new situation the first responders, so to speak, are those most intimately and immediately involved in the situation. So until even a few years ago the principal "players" in the autism community were parents of children with ASD's, physicians, researchers, and various kinds of treatment professionals. But, as with every movement in life which begins to attract money and publicity, the lawyers are not far behind. And lawyers are now beginning to extend their tentacular grip to the problems faced by families with loved ones with ASDs. And, whenever lawyers enter the scene, they discover not just one or two legal problems, but many. Here are a few of them, for example:
1. Is an ASD individual "disabled" under the legal regime in the country where s/he lives?
2. What legal responsibility does a school district have for a student diagnosed with ASD? A college?
3. If an ASD individual applies for a job, to what extent are prospective employers required to take that condition into consideration both in the hiring and, if hired, in the workplace context?
4. To what extent do housing laws, which prevent various kinds of discrimination, relate to people with ASDs?
5. When families with ASD children experience divorce (and the divorce rate is astonishingly high when an ASD child is in the home), what special needs diets, treatments, therapies are or ought to be part of a divorce decree?
5. What is the responsibility of insurance companies to pay for various treatment modalities for those suffering with ASDs?
6. What does the presence of an ASD mean with respect to a person's legal rights? Does it give a defense against some kinds of charges, such as when a person may break the law in ways that could easily have been predicted, based on what we know is characteristic of an ASD person? Thus, is having ASD a mitigating circumstance in a trial, a bargaining chip with prosecuting attorneys?
These are certainly not all the legal questions one can imagine with respect to ASD individuals and families, but they were those that were just on the top of my mind.
Moving to the Book
Just as a dipsomaniac ought not to complain if he isn't given Perrier to drink, so a lawyer like myself interested in autism should be chary to complain that a book on autism and the law offers little nourishment or guidance. But with that caveat, I need to say that the 133-page book reviewed here could probably have been written in 50 pages, and that the legal advice given is based on one English law and one case that has not even fully been decided in England at the time of the book's publication. So "padded" is the book that in chapter four, when advice to employers and employees is given to avoid discrimination against people with autism, the identical words are copied for each. For example, when a person with autism is advised about interviews for work, the text says:
"Interviews are difficult for many people with autism. Given the impairments of autism, a person would find answering quesitons about themselves and being asked to speculate on their abilities in a future situation extremely hard," 87.
Now, when the book turns to advice to employers about hiring employees, let's see what helpful advice is given:
"Interviews are difficult for many people with autism. Given the impairments of autism, a person would find ansering questions about themselves and being asked to speculate on their abilities in a future situation extremely hard," 92.
This continues for page after page in ch. 3. It makes me wonder not only about the authors but who is in charge of the publishing business.
The Good Things About the Book
The primary virtues of the book are two: (1) it provides a simple and accessible introduction to ASD's for attorneys and non-autism professionals. The authors use definitions in the DSM-IV or the ICD-10 and illustrate the definitions with many manifestations of the symptoms that those definitions provide; and (2) a brief description of the important discrimination statute and the importance of "reasonable adjustment" (under English law--it is "reasonable accommodation" in American law) for employers to be in compliance with this 1995 English law. The book only thinly describes one, yes one case and gives no real guidance on what how the statute has been construed by English courts. In contrast, had the authors wanted to wade into the thicket of American law, they would have encountered a statute enacted five years before the English law (The Americans with Disabilities Act of 1990), as well as one earlier American law (The Rehabilitation Act of 1973), along with some education laws in America (The Individuals with Disabilities Education Act of 1975, with regulations promulgated and periodically updated) which would have given a much larger context to make their points. But they are to be commended for injecting into the discussion the relevant legal standards and the helpful advice that these issues will only multiply in the future.
Helpful also is their chart (pp. 101-117) which coordinates the DSM-IV/ICD 10 definitions with various manifestations of these symptoms, as well as ways that employers and others might try to deal legally and helpfully with these symptoms.
This book is neither a great book nor much of an engaging read. But it will, I hope, begin a debate--about the role that law will increasingly play in sorting out equities and handing out money for families and individuals who suffer from an ASD. This discussion is long overdue, and it will begin to accelerate, in my judgment, in very quick order.