The Americans with Disabilities Act, designed to eliminate
discrimination against people with disabilities, celebrates its 15th
birthday this July with a track record as contradictory as a teenager’s
mood.
On the one hand, the ADA has made solid progress in
creating a more accessible environment, especially in the areas of public
accommodation, transportation and telecommunications. Nonetheless, advocating
for access remains a touchy business. And in the area of employment
discrimination, there’s confusion, discouragement and a call for
new legislation to put the ADA back on track.
Better Accessibility
Since the ADA took effect, it’s become common to
find modifications such as curb cuts, ramps, assistive listening devices
at movie theaters, handicapped restroom stalls, braille signs on doors,
etc.
In 1999 the U.S. Department of Justice launched Project
Civic Access, which has worked with more than 100 state and local governments
to bring governmental buildings and facilities into compliance with
the ADA.
In addition, last July the U.S. Access Board released
updated accessibility guidelines for new or altered facilities covered
either by the ADA or the Architectural Barriers Act (ABA). Although
the updated guidelines aren’t radically different, they’re
easier to use, harmonize with the guidelines of model building codes
and industry standards, and apply the same requirements to both ADA
and ABA facilities.
In a significant victory for accessibility in May, the
U.S. Supreme Court upheld the right of people with disabilities to sue
state governments over inaccessible courthouses. The case, Tennessee
v. Lane and Jones, involved a criminal defendant with a mobility impairment
(George Lane) who refused to crawl up the steps to attend his court
hearing, and a court reporter with a disability (Beverly Jones) who
also couldn’t get to the courtrooms to work.
Tennessee claimed it was protected by the 11th Amendment
of the U.S. Constitution, which says states can’t be sued for
monetary damages in federal court. However, the Supreme Court said this
case trumped the 11th Amendment because it involved "the enforcement
of a variety of basic rights, including the right of access to the courts."
Mixed Messages
But in December, a federal judge in California took a
harsher approach toward accessibility lawsuits, telling Jarek Molski
he must have judicial permission to file any more ADA lawsuits against
local businesses. Molski, who uses a wheelchair because of injuries
received in a motorcycle accident, has filed some 400 suits since 1998
claiming injuries due to businesses’ lack of ADA compliance, such
as grab bars and ramps. The ruling was issued after Molski filed three
suits claiming identical injuries on the same day at three businesses.
Molski’s actions have highlighted the delicate
position of many disability advocates who try to enforce their ADA civil
rights.
"I feel somewhat caught in the middle," admits
John Lee, of San Luis Obispo, Calif., who has limb-girdle muscular dystrophy
and has been locally active in promoting business accessibility.
Businesses have had 15 years to comply with ADA requirements,
he notes. "The bottom line is if you’re not in compliance,
this is the law and here are the consequences." Those consequences
can include lawsuits, court orders to comply and, under California law,
monetary penalties.
But he also sees the angry, distrustful public backlash
created by lawsuits.
"What’s the cost for people with disabilities?
How do we bring about these improvements in a way that makes people
want to do it, and aren’t just compelled to do it?"
Employment Battles
There’s been a sharp decline in the employment
rate of working-age adults with disabilities since the passage of the
ADA — exactly the opposite of the law’s intent.
In 1989, the U.S. Bureau of Labor Statistics reported
that 44 percent of working-age men with disabilities were employed;
by 2000 that number had dropped to 33.1 percent. The employment rate
of working-age women with disabilities dropped from 37.5 percent to
32.6 percent. By comparison, the employment rate for men without disabilities
dropped less than a percentage point over the decade, and increased
slightly for women without disabilities.
Does this mean the ADA actually has hurt employment
of people with disabilities? Yes, says researcher Thomas DeLeire in
a 2000 article in the Journal of Human Resources. Fear of litigation
and the cost of accommodations have had a chilling effect on employers.
Not necessarily so, say others, including researchers
Douglas Kruse and Lisa Schur. The statistics are misleading, they claim
in a 2003 journal article. If you eliminate the number of people with
disabilities who say they’re not able to work at all, then the
employment rate for working-age people with disabilities actually has
risen since passage of the ADA.
Even if people are working, the ADA may not be helping.
In 2000, the American Bar Association noted that employers won more
than 95 percent of ADA cases filed in federal courts, and 85 percent
of cases handled by the Equal Employment Opportunity Commission.
The question of who actually has a disability is another
sticking point.
In recent years, federal court rulings have denied ADA
protection to people whose disabilities can be "mitigated or corrected"
by medication or assistive devices, such as epilepsy medication or eyeglasses.
This has led to some controversial rulings, such as a case involving
a Wal-Mart pharmacist with diabetes who was fired because he closed
the pharmacy at noon to eat and inject insulin (Orr v. Wal-Mart, 2002).
The courts ruled the pharmacist wasn’t "disabled" because
he could mitigate his disease with insulin.
"So what you have is an employer who can actually
interfere with your ability to mitigate the disability, and then fire
you and go into court and argue that you don’t have a disability
because you can mitigate it," Julie Carroll said in 2003. Carroll
is an attorney with the National Council on Disability (NCD), an independent
federal agency that advises the president and Congress.
Righting the ADA
"The courts are retreating from some of the core
principles of the ADA," charges the NCD in a report called "Righting
the ADA," sent to President Bush in December. NCD wants Congress
to enact new legislation — an ADA Restoration Act — that
will reestablish and clarify these core principles. It’s working
toward this end with the Disability Bipartisan Caucus of the U.S. House
of Representatives. Like a boat blown off course or tipped on its side —
or a wayward teenager — "the ADA just needs to be righted,"
the NCD says. After 15 years on the books, it remains to be seen whether
the landmark law will achieve its goals of opportunity, participation,
independent living and economic self-sufficiency for people with disabilities. |
