News
The day they said that Casey could
A recent decision of the Supreme Court of the United States highlights the application of the law to people with disabilities.
Casey Martin's story is one which has, over the course of the last two years, attracted world-wide interest. The last chapter in his story - the decision on an appeal to the Supreme Court of the United States (PGA Tour, Inc. v Martin 532 US (2001))- has caused considerable controversy, and more generally has drawn attention to the application of laws which exist to protect the rights of people with disabilities.
Casey Martin is an exceptionally talented professional golfer. In addition to a distinguished amateur career as a junior, he was a team mate of Tiger Woods at Stanford University. Throughout his life, Casey has suffered from a degenerative circulatory disorder that obstructs the flow of blood from his right leg to his heart. The disease causes severe pain and makes it virtually impossible for him to walk an 18-hole golf course. At worst, the exertion and fatigue associated with walking this distance could cause haemorrhaging requiring an amputation of his leg.
As most weekend golfers will recognise, many golf courses allow players to use electric carts - a device which has allowed Casey to continue to play golf despite his disability. The competition in which Casey sought to compete, however, was different: the PGA Tour provided, as a rule of competition, that competitors were required to walk while competing in its tournaments. The PGA Tour argued, in effect, that its competitions were in a special category, in which walking was an essential part of the game of golf. It sought to substantiate this point by calling evidence from some of the greatest golfers of all time. Casey Martin took issue with the requirement to walk, arguing that it as contrary to the Americans with Disabilities Act (which broadly prevents discrimination on the basis of disability).
Ultimately, Casey succeeded in his arguments. The Supreme Court accepted that the PGA Tour had to accommodate Casey's disability in the same way that it was required to accommodate disabled members of the public who wished to attend golf courses to watch its competitions. The Court ruled, therefore, that Casey was entitled to use a cart when competing in its golf tournaments.
The decision has attracted a good deal of media attention because it is said to showcase the way in which the law successfully protects the rights of disabled people. Many in New Zealand may be interested to learn about the way in which our law would apply in a similar situation.
At the outset, it is important to record that Casey Martin was not an employee of the PGA Tour - in effect, he was a member of the public who had attained a qualification allowing him to participate in its tournaments. Had he been an employee (for example, a local professional with a particular golf course) the position would, in this country, be significantly clearer. Where a person is qualified to perform a particular job an employer may not ordinarily refuse to employ that person on the grounds of disability.
An exception exists only where the employer can show that the employee could only perform satisfactorily with the aid of special services or facilities, and that it is not reasonable for the employer to provide those services or facilities. On the facts of Casey's disability, it would seem difficult for an employer to argue that it would not be reasonable for it to provide a golf cart for use as part of his work playing golf - given that many golfers themselves use carts while playing golf.
The position in New Zealand is, however, more complex in the case of sporting competitions. An organiser of a tournament may only treat a disabled person differently in the provision of services (such as allowing the person to enter a tournament) where the person would require special facilities or services which the employer could not reasonably be expected to provide.
In essence, the application of this provision would involve argument along the same lines as that considered by the Supreme Court of the United States. On the one hand, it is likely that a golfer would argue that it would not be unreasonable to expect the organiser of a tournament to allow the use of a golf cart (given that such is regarded as a usual part of the playing of the game of golf). On the other hand, however, it might be open to the organiser to argue that the particular nature of its competition was such that competitors should not be permitted to use golf carts. While the legal issues are cast in different terms in the New Zealand legislation, the merits of these respective arguments are similar to those considered by the Supreme Court.
This recent case, which has attracted a large amount of attention, has provided a focus to the rights of disabled people - particularly in terms of the tasks that they perform in their work.
