Zebley – A Truly Intersectional Case!

In a 2003 publication Canadian disability rights scholar Marcia Rioux observed that shifting ideological paradigms, shifting legal standards and ever-changing policy programming makes advancing rights for people with disabilities a huge challenge.This has been true historically and remains true today.Especially in the area of state supports and especially for disabled kiddos (both sides of the border).

In this post I’m going to discuss some aspects of a landmark decision in the context of Rioux’s insight. First, why talk about an old US case though?

One reason is that this case made a big splash. For that reason alone it commands our attention. https://www.latimes.com/archives/la-xpm-1990-02-21-mn-983-story.html

Another is that the sheer simplicity combined with the legal complexity of this case has interested me for over a a decade. I’ve written about it before, in this book chapter Jennings, S. (2013). Advancing the Rights of Children with Neurological Conditions in Life Quality Outcomes in Children and Young People with Neurological and Developmental Conditions. Ed. G.M. Ronen and P.L. Rosenbaum. Mac Keith Press, London, England.)

Another reason is simply because we don’t have a Zebley case in Canada. In Canada  most instrumental (tangible) childhood disability supports are provided provincially and territorily and the lawsuits are against the provinces and territories. The track record of  (mostly) mothers litigating regarding these has not been a strong one in terms of results. Zebley on the other hand is a Federal childhood disability right decision for disabled child rights to support. It had teeth.Big teeth.  Its impact is still being felt today, as this Youtube clip Zebley at 25: Community Legal Services’ Celebration of Children’s SSI illustrates: https://www.youtube.com/watch?v=uYnFfXodKC8

The Zebley decision was also a poverty rights decision at the intersection of disability. It successfully put some ‘security’ back into the phrase ‘Social Security’. This can be seen in the area of children with disabilities rights to some monetary support in the US in theaftermath of the landmark Supreme Court decision Sullivan v. Zebley (1990) (this is not to say that this case is a panacea for the global support of children with disabilities south of the border, it’s not).

Young Brian Zebley was born in 1978. At the time of the case, he was a very young disabled boy born into a poor family. He lived with a congenital brain condition, visual and intellectual impairments, developmental delays, and partial paralysis (Erkulwater 2006). Thus, he was living with multiple impairments but his family was nevertheless denied child disability benefits.

Two child rights lawyers brought an action against the government to have the childhood disability law’s assessment process changed.  The Sullivan v. Zebley (1990) matter was brought as a class action lawsuit on behalf of children whose claims for SSI benefits had been denied (Doolittle 1998).

According to Erkulwater (2006) over 300000 children were represented by the class.

This case because is a reminder that class actions for children with disabilities are possible.

As in the (much smaller) Canadian case of Larcade v. (Ontario) Ministry of Community and Social Services (2005), a lower court at one stage in the litigation dismissed the class complaint in the Zebley matter (United States Social Security Administration Office of Disability Adjudication and Review 2012).

The difficulty of litigating as a class in these childhood disability support cases on both sides of the border demonstrates that a reliance upon litigation as a tool to advance the rights of children with disabilities can be very challenging.

Erkulwater (2006) in her book Disability Rights and the American Social Safety Net comments that the Zebley case ‘was one of the few social security cases to have ever reached the Supreme Court’. She states that ‘… latecomers to disability litigation, the Supreme Court did not hear a social security case until 1968 and when it did it always sided with [the Social Security Administration]’.

There was something quite compelling to the US Supreme Court about the situation of lower-income severely disabled children who were left out of the scheme of benefits as then structured.

Regarding Brian Zebley, Doolittle (1998) explains that ‘the reason he was denied was because his conditions did not match [the Social Security Administration’s] listed adult or childhood impairments’.

On a review, the court held that in determining eligibility for benefits, the Social Security Administration had to allow for an individual functional assessment and the court required additional disabling conditions be added to the list such as Down syndrome, fetal alcohol syndrome and other serious hereditary, congenital, or acquired conditions (Doolittle 1998).

Erkulwater (2006) asserts that Brian Zebley had become ‘a casualty of the Reagan administration’s purge of the disability rolls at the age of 5’. I find this to be an interesting observation in light of the progressive steps President Reagan took in the Katie Beckett case, and forces one to confront the relationship between social assistance and disability overall. And the extent to which childhood disability supports can be non-partisan.

The very title of Doolittle’s (1998) article ‘Welfare reform: loss of supplemental security income (SSI) for children with disabilities’ makes the point well. And Erkulwater (2006) draws attention to an important pathway that exists between disability and also poverty in childhood.  Litt (2004) & Doolittle (1998) explain that changes came about in disabled children’s SSI benefits in 1996 through ‘the Personal Responsibility and Work Opportunity Reconciliation Act, which is described as being ‘a retrenchment’ (Doolittle 1998) from advances made to the right to support children with impairments in the Zebley (1990) case. Doolitte (1998) and Litt (2004) draw attention to a most economically vulnerable sector of the disabled child population in the USA, namely those who are cared for by a single mother.

These authors also examined connections between poverty and childhood disability, supporting a position that disabled child rights cannot be advanced in without attending to poverty. They also examined the political context for such unhelpful changes to the support of children with disabilities in the States in the 1990s. Of interest here too is that Litt (2004) asserts that children below the low-income cut-off in the USA are twice as likely to report a limitation or impairment as those who are economically above the poverty line.

In ‘Profiling health and health related service for children with special health care needs with and without disabilities’ (Houtrow et al 2011) hypothesized ‘that children with special health care needs (CSHCN) with additional disabilities have more severe and less stable health conditions than other CSHCN and have more extensive health service needs, but have higher rates of unmet needs and less commonly receive care within a medical home than other CSHCN.’

They further proposed that ‘after controlling for health condition severity and socio-demographic features commonly associated with health care inequities, CSHCN with disabilities have increased odds of unmet service need’; indeed, their study found that both health and social challenges faced by children with special healthcare needs with disabilities were more pronounced (Houtrow et al 2011).

What their findings indicate overall is that in the USA, as elsewhere, more attention must be paid to the policy needs of children with severe conditions.

Photo at top of Blog Post of Richard Weishaupt & Jonathan Stein after their win at the United States Supreme Court in 1990 in the Zebley case. For the photo credit and article that accompanies it go to: https://w1.dickinsonlaw.psu.edu/sites/default/files/Rains-Zebley-Clearinghouse-Community.pdf


Sullivan v. Zebley, 493 US 521 (1990)

Doolittle DK (1998). Welfare reform: loss of supplemental security income (SSI) for children with disabilities. J Soc Pediatr Nurs 3: 33–44.

Erkulwater JL (2006) Disability Rights and the American Social Safety Net. Ithaca, NY: Cornell University Press.

Houtrow AJ, Okumura MJ, Hilton JF, Rehm RS (2011). Profiling health and health related services for children with special health care needs with and without disabilities. Academic Pediatr 11: 508–515. http://dx.do

Litt J (2004). Women’s carework in low-income households: the special case of children with attention deficit hyperactivity disorder. Gender Society 18: 625–644. 

Rioux M (2003) On second thought: constructing knowledge, law, disability, and equality. In: Herr S, Gostin L, Koh H, editors. The Human Rights of Persons with Intellectual Disabilities: Different But Equal. London: Oxford University Press. pp. 287–317.

Conflations in Care Law

Conflations in Care Law

The McCrea case involved mothers on maternity leave who became sick, some life-threateningly so, and who applied for Federal disability benefits, which were denied.

The reason provided was that they were receiving maternity leave benefits. This disentitled them to sick leave benefits.

Maternity benefits conflated somehow with disability benefits?

As a result of this administrative decision, several mothers joined to certify a class action proceeding against the Canada Employment Insurance Commission. A tall order as litigation goes. It is not a simple matter to sue the Federal Government.

Although based on several claims, only one of their claims was certified. That was for negligent implementation of the Act in question. One aspect of the negligence they claimed took place was the pattern of denials of sickness claims by very ill mothers on maternity leave. Notably, this pattern of denials continued even after their claim was brought.

Early on, the government settled with some employees in the this litigation, and removed a clause in the benefit scheme that was problematic.

In this dispute the mother’s wanted law that supported them, while also mothering.

More specifically, the mother’s action was for denial of sick benefits was for provisions under the Employment Insurance Act, SC 1996 c 23, regarding in particular parental benefits under EI when parents became ill. The claim alleged that the Canadian Employment Insurance Commission and Service Canada had failed to properly implement the amendments, which resulted in individuals who were on parental leave being denied their claims for sickness benefits.

The class initially claimed the torts of misfeasance of public office, negligent misstatement and unjust enrichment.

The Federal Court certified the class proceeding for negligent implementation of the Act. The government appealed and that litigation went on for several years. See the more recent decision at the Federal Court of Appeal. a

See McCrea v Canada (AG), 2015 FC 592, (Motion for Class Certification), online: <http://www.cavalluzzo.com/docs/default-source/News-Items/order-and-reasons-%28c1327631xa0e3a%29.pdf?sfvrsn=0&gt; [McCrea (Class Certification]).

The motion for the class action for $450 million in damages was heard in the Federal Court in 2015 and the plaintiff mothers succeeded. It is quite uncommon that mothers litigating as a group prevail, as they did.

Below is a photo of named and lead plaintiff and Calgary mother Jennifer McCrae was sources from the Toronto Star online (ref’d below with link to its source).

Delving more into the actual provision in question, it provided that disability benefits were available only to people who would otherwise be available for work. Being at home taking care of an infant was not that.

In 2013 the clause about being available for work was removed, but the rule preventing sick benefits for mothers on maternity leave remained in force. See Gloria Galloway, “Ottawa Spends $1.3 Million Fighting Sick Moms’ EI Disability Benefits Lawsuit”, The Globe and Mail (30 January 2015) online: The Globe and Mail <http://www.theglobeandmail.com/news/politics/ottawa-spends-13-million-to-prevent-sick-new-moms-from-collecting-ei/article22731091/>.

Turning to the particulars of Jennifer McCrea’s situation, she had contributed to the EI program, had a baby, and received maternity leave payments. However, she became seriously ill while on maternity leave, and so she applied for sick benefits. Her request was denied. She then brought a claim arguing that the strict interpretation of the Act, which required that a sick benefit-recipient be available for work during coverage, was restrictive and that government was negligent in its refusal to allow the sick benefits to sick new mothers.

She pointed out that sick pregnant workers could access the 15 weeks of sick leave followed by maternity leave under the legislation, but that statutes excluded new mothers with medical disabilities/illnesses.

In keeping with the topic overall of Law’s Mum Blog. I note that after the McCrea case was certified by the Federal Courts as a class action, the federal government passed the Helping Families in Need Act. This Act contains provisions based on compassionate grounds and critical illness, a positive addition in the area of disability support. In this regard, it offers a maximum of 52 weeks leave for care of a critically ill child. However, this is not the same thing as a provision concerning care for a chronically ill or severely disabled child.

In that benefit scheme, the definition of critically ill child provided by government excludes a child who is always severely disabled. A critically ill child is defined in that statute is “a child who has a life-threatening illness or injury, that can include various acute phases of illness and for which continued parental care or support is required.

This does not include a child with a chronic illness or condition that is their normal state of health. It is evident that there must be a significant change from the child’s normal or baseline state of health at the time they are assessed by a specialist medical doctor. Which is a separate – but definitely related – care law issue for complex care mothers, in particular. However, given that we’re talking about Federal benefits here, which many caregiving mothers are simply not eligible for because they are not federally employed, it is not something I will focus on.

Suffice it to say that this support policy to mothers sidesteps the issue of what happens when a worker gives birth to a severely disabled infant. If she had a critically ill baby, one wonders if she would have difficulty accessing the additional benefit. Either way it may not be easy to access disability support of any kind. See “EI Benefits for Parents of Critically Ill Children – Overview”, (7 June 2016) Government of Canada, online: https://www.canada.ca/en/services/benefits/ei/ei-critically-ill-children.html

The McCrea case offers another example of how working mothers’ state supports fail in the setting of severe illness or disability. It is an example that invites one to consider government’s rejection of the claims to support in the convergence of disability, mothers, infants and care.

After 6 years of litigation, the Federal Court approved a class-action settlement. Ottawa is ordered to pay approximately $4,000 in sick benefits to approximately 2,000 -mostly mothers – who were seriously ill during their maternity leave, but who were denied money.

I note that Jennifer McCrea, was also awarded another $10,000 for her work as the named plaintiff. This media report stated that she was “very relieved that it is over” < https://www.thestar.com/news/canada/2019/01/30/court-approves-ei-sickness-class-action-settlement-with-new-moms.html>

As noted above, McCrea’s lawsuit began as a tort case. However on its facts, the case speaks volumes about the troubled status of caregiving mothers equality rights in public law. Joyfully the mothers prevailed, which is not a common occurrence in the setting of medical disability and support policy where children are also in the need-of-support frame.

Hat’s off to Jennifer!