Fetterman stroke sparks debate over what’s seen as a disability

Many of us watched the debate of John Fetterman (D) and Republican Mehmet Oz (R) last night and it was at times very difficult to watch. Fetterman is clearly still experiencing serious problems in cognitive processing and communication after his stroke five months ago. However, when some raised disconnected or incomprehensible responses, commentators like MSNBC’s Liz Plank objected to such criticisms as discriminatory “ableism.” The Philadelphia Inquirer wrote that these questions only reflect our “discomfort” with disabilities.

I felt an enormous amount of sympathy in watching Fetterman struggle last night. This is terribly difficult for any stroke victim and I give him credit for soldiering on with his campaign. However, Plank and others suggest that recognizing a serious question over the incapacity of a politician is now considered discriminatory and hateful.

There have been allegations that Democratic operatives hid the extent of the stroke from voters, which occurred shortly before Fetterman was given the Democratic nomination. Since then, Fetterman has been closely protected from reporters seeking to ask him questions. Not only was the extent of the damage not revealed before the nomination, but this debate did not occur,  according to the Wall Street Journal, until after roughly half of the mail-in ballots were submitted.

Before the debate, NBC reporter Dasha Burns was attacked for merely noting that Fetterman did not appear to be able to process questions or comments before one of his relatively rare interviews.

Fetterman’s wife demanded an apology as others piled on Burns as an “ableist.” Gisele Fetterman told the Independent “I would love to see an apology towards the disability community from her and from her network for the damage they have caused.”

From the outset, it was clear that Fetterman has continuing residual damage from the stroke when he started by telling the audience “Hi goodnight.”

There were also glaring contradictions on his record, including  a strikingly false statement on his opposition to fracking. Fetterman repeatedly opposed fracking in prior years but categorically denied that past opposition in the debate:

This debate was all the more important due to the fact that Fetterman will not agree to anything more than a single one-hour debate with closed captioning technology. He has also limited any ability of reporters or voters to ask him questions at events. The voters have a legitimate interest in seeing how their senator will response to issues and opposing views.

Politico reporter Natalie Allison stated the obvious that “the ability to process conversation in real time and respond is a lingering challenge, and that was absolutely a real issue tonight for Fetterman.”

Yet, Plank denounced critics as engaging in discriminatory “ableism.”

Such charges are common on college campuses where the term is defined as “the privileging of ability and results in the oppression of disabled people based upon real or perceived impairments. It ‘others’ disabilities, chronic illnesses, and neurological or mental illness.”

The question, however, is whether a senatorial candidate’s difficulty processing or communicating is discriminatory. It is clear that a senator can use closed captioning in hearings to understand questions. The same is true for communicating with staff in the office or some other forums.

Two U.S. senators recently suffered strokes.Sen. Ben Ray Luján of New Mexico suffered a stroke and required  physical therapy in his recovery.  Sen. Mark Kirk of Illinois returned to the Senate a year after suffering a stroke. Staff stated in a 2015 article in the Atlantic that the stroke caused continuing difficulties for Kirk who lost his 2016 bid for reelection.

I agree that a diminishment of speaking abilities from a stroke victim should not be treated as a de facto barrier to public service. This issue has come up in EEOC cases dealing with the exception for Bona Fide Occupational Qualifications (BFOQs) under federal law. These cases may offer some insight into the balancing of interests.

The EEOC defines a “qualified individual with a disability” as “a person with a disability who meets all of a position’s legitimate job requirements and can perform the essential functions of the position with or without reasonable accommodation.”

The EEOC posts a letter on this issue as instructive:

“[T]here is no BFOQ defense in the ADA. Accordingly, an employer may not defend a disability-based employment action by asserting that the absence of disability is a BFOQ. An employer, however, may assert other defenses under the ADA. For example, an employer may defend the use of a qualification standard that screens out an individual on the basis of disability by showing that the standard is job related and consistent with business necessity. In that respect, the employer must show that the standard is an accurate measure of the individual’s ability to perform the essential functions of the position at issue. An employer may justify a safety-based standard by showing the existence of a direct threat, i.e., a significant risk of substantial harm that cannot be reduced or eliminated through reasonable accommodation.”

A stroke is a disability and there should be reasonable accommodations in the workplace. In most cases, such reasonable accommodations can and should be made.

Yet, according to Plank and some others, pundits and voters who question the ability of Fetterman to be effective as a senator are engaging in ableism. I do not agree as a general matter. The ability to process information and to communicate are clearly essential functions in representing a state in Congress. The problem is that we do not know the extent of the damage from this stroke and whether reasonable accommodations in the workplace are possible.

There was an EEOC settlement in 2013 with an employee who was thought to have suffered a stroke due to facial paralysis. The facial appearance was due to Bell’s Palsy. The EEOC lawyer stated:

“The ADA requires that all employees be given equal opportunity to do their jobs regardless of an actual or perceived disability, and employers should not make decisions based on perceptions about someone’s supposed impairment. This case should remind all employers that the ADA requires employers to make an individualized assessment about an applicant or employee’s ability to do the job instead of acting out of speculative fears or biases.”

The EEOC has also sued on behalf of a truck driver who was not accommodated after a minor stroke.

There is also the difference presented by this issue being part of a political debate on the overall fitness of a candidate to serve in Congress. This is obviously not an ADA-covered matter on the campaign trail. Communicative and cognitive ability are core criteria for voters. An analogous comparison can be drawn to cognitive questions raised about former president Ronald Reagan or President Joe Biden due to their advanced years. Is that “ageism” and also deemed discriminatory?

At a minimum, last night’s debate should make the disclosure of Fetterman’s medical records an imperative for the media. The question is whether this is just a speech problem as opposed to a more serious comprehension or mental processing issue.

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