SPECIAL SECTION:20 Years With ADA

The debate continues: Has the Americans with Disabilities Act (ADA) really helped?

Has it been 20 years?

It doesn’t seem possible that much time has passed since that hot July day in 1990 when President George H.W. Bush signed the Americans with Disabilities Act (ADA) into law on the White House lawn. Thousands looked on and cheered while watching history being made. Millions of Americans had no idea that what was happening would affect their lives in the following decades.

ADA covers employment, public transportation, state and local government services, private businesses, building codes, and so on. So many of the early complaints about ADA were based on finances—for example, “You didn’t give us any money to comply.” People with disabilities responded that civil-rights laws don’t depend on the federal government paying and that ADA and its regulations are flexible enough to be reasonable; no one should go out of business.

Some people with disabilities have filed numerous “drive-by” lawsuits without notice to business owners, triggering a backlash against ADA. Business owners complain about having to pay money to make these lawsuits go away and blame that on ADA, when in fact the act does not permit money damages for a plaintiff.

The development of case law under ADA started quickly but took eight years to reach the Supreme Court (the Court). Decisions varied greatly, depending on whether the defendant was covered by Title I (employment), Title II (state and local governments), or Title III (public accommodations).

In 1998, the Court determined that ADA applied to state prisons, even though prisons were not expressly named in the act. The Olmstead case in 1999 stated that unreasonable institutionalization by a state was discrimination, lending support to the argument for community services. In 2001, the Casey Martin case established that a golf tournament run by the Professional Golfers Association of America (PGA) was a place of public accommodation covered by ADA’s Title III even though it did not occupy a brick-and-mortar facility.

The first damaging employment decision was in 1999. It stated that mitigating measures—e.g., medication or assistive devices—must be considered in determining whether an employee had a disability. In 2001, the Court decided that Title II employees (state and local government) were not entitled to monetary damages even if discrimination did occur, unless the state waived its 11th amendment immunity. In 2002, the Court stated that an employer is justified in discrimination against a person with a disability if the employer decides the position poses a danger to the employee—even when the employee disagrees.

Employment case law changed dramatically with the passage of the ADA Amendments Act of 2008 (ADAAA), which went into effect on January 1, 2009. The law corrects a series of decisions by the Court that narrowed ADA’s scope of protection and excluded individuals the act was originally designed to protect, including people with epilepsy, diabetes, and muscular dystrophy.

Prior to ADAAA, the Court had focused on determining whether a disability qualified for coverage under ADA rather than whether unlawful discrimination had occurred—and many whom Congress had intended to be covered were excluded. Under ADAAA, “courts [are required] to focus primarily on whether discrimination has occurred or accommodations properly refused.”

So far, the cases that have dealt with ADAAA have considered whether it applies retroactively to conduct that occurred prior to the act’s passage. Only further litigation will reveal if ADAAA has restored ADA to its originally intended broad application.

The frontier has now shifted to Web site accessibility. A settlement between Target and the National Federation of the Blind will result in many positive changes to Target’s Web site that will make it easier to navigate for people who are blind or have visual impairments. But the question of whether a Web site is a public accommodation will probably not be settled until a court adjudicates the question.

Transportation continues to be an issue that affects the quality of life for people with disabilities. There is good news such as the Court’s determination that cruise ships are public accommodations with barrier-removal obligations and that public transit system bus fleets are approaching 100% accessibility. But even after some highly publicized cases and settlements, paratransit still creates obstacles for people with disabilities when it should be removing them. And many Amtrak stations are still inaccessible.

Thanks to litigation, wheelchair users now must have an equivalent line of sight in arenas and theaters—they must be able to see over standing spectators. Access to civic life continues to improve as the U.S. Department of Justice (DOJ) pursues settlement after settlement as part of its Project Civic Access (see “Ensuring Access,” above). Finally, wheelchair users can count on better seating in stadium-style movie theaters, thanks to collaborative efforts between DOJ and private litigants.

Wide-ranging Effects

ADA was not the first nor the last law affecting the rights of people with disabilities. But nothing before or since has had ADA’s wide-ranging effects. Prior to the act, Section 504 of the Rehabilitation Act of 1973, amended in 1978, prohibited disability discrimination in federal programs or any program that receives federal funds. The Air Carrier Access Act (ACAA) in 1986 and the Fair Housing Amendments Act of 1988 prohibited discrimination on the basis of disabilities in air travel and housing, respectively.

Since 1990, the Family and Medical Leave Act of 1993 (P.L.103-3) permits employees to take unpaid leave for reasons related to illness or disability. Congress enacted the National Voter Registration Act of 1993 (P.L. 103-31), also known as “Motor Voter,” which requires states to offer voter registration opportunities at all offices that provide public assistance and all that offer state-funded programs primarily engaged in providing services to people with disabilities.

 

In 1995, Congress applied numerous civil rights (including ADA), labor, and workplace-safety laws to itself in the Congressional Accountability Act of 1995 (P.L. 104-1). Four years later, the Ticket to Work and Work Incentives Improvement Act (TTWWIIA) gave more options of vocational rehabilitation choices for Social Security disability benefits recipients and greater access to healthcare coverage for working people with disabilities through expansions in Medicare and Medicaid.

The Help America Vote Act (P. L. 107-252), or HAVA, was signed into law on October 29, 2002. It requires each polling location to have at least one voting system accessible to individuals with disabilities that provides the same opportunity for voting (including privacy and independent operation) as for other voters.

In January 2009, the Ledbetter Fair Pay Act stated that the 180-day statute of limitations for filing an equal-pay lawsuit regarding pay discrimination resets with each new discriminatory paycheck.

Most recently, the Patient Protection and Affordable Care Act (P. L. 111-148) was signed into law on March 30, 2010. This healthcare reform will prohibit limitations on pre-existing conditions, supplement state efforts to increase community Medicaid services, and initiate a new (voluntary) national long-term services and supports insurance program. The Access Board will develop guidelines for minimum technical criteria to ensure that medical diagnostic equipment is accessible.

 Downs and Ups 

Life for people with disabilities is far from perfect in 2010. A great deal of misinformation or misinterpretation about ADA’s requirements still exists.

Employment statistics have not improved for people with disabilities. Insurance is still a huge roadblock that may discourage someone with a disability from going to work, for fear of losing Social Security benefits. Too many people with disabilities needlessly still live in institutions because community services are not available. Enforcement is limited, as federal agencies have limited budgets and many private citizens are reluctant to sue.

On the upside, it is much easier for people who use wheelchairs to get into and around most public accommodations. Most hotels and motels provide an accessible room (though each may have its own idea of what “accessibility” means). Stadium-style theaters now offer seating toward the middle of the audience, rather than only in the first or last rows. State and local parks are providing accessible services like trails and exhibits. It is accepted policy, if not common practice, that people with disabilities are better served and contribute a great deal in a community.

We have come a long, long way, but the struggle continues, and we have “miles to go before [we] sleep.” There will always be opportunities to educate others about people with disabilities, but we hope far fewer than in 1990.

Contact: PVA Advocacy, 800-424-8200.

 

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