The Americans with Disabilities Act: A General Discussion

Pamela Schechter

When the Americans with Disabilities Act was signed into law on July 26th, 1990 by President Bush, it became the first comprehensive civil rights law for people with disabilities. The law granted far-reaching protections for disabled Americans in employment, public accommodations, public transportation, housing and education. According to Percy (1989), passage of the Americans with Disabilities Act came at a time when many Americans had come to recognize the extent of disability in America and the harmful aspects of disabilities on the lives and opportunities of a large segment of the population.

The history of the ADA, prior to its enactment in 1990, was guided by many factors, including: the changing role of the federal government and the enactment of social welfare programs during the 1960s; the changing demographics of the disabled; the civil rights movement; and the emergence of a strong and effective advocacy coalition. Of all the other precursor developments, these four factors emerged as critical.

As recently as the 1960s, the flow of federal financial assistance to states and through the states to other entities, was limited, and targeted to those programs that were already in place during the 1950s. All this changed in 1965, under the presidency of Lyndon Johnson, when programs such as Medicaid, Medicare, and the Elementary and Secondary Education Act were initiated and resulted in significant expansion of federal support for social services. With these enlarged entitlements, Congress began to set conditions of participation. For example, in 1973, with the enactment of Section 504 of the Rehabilitation Act, those who received federal funding were obliged to practice non-discrimination against people with disabilities towards their employment and allow them access to public transportation. Implementation of this law paved the way for the ADA and the broader application concerning the disabled.

Well into the seventies, many policy makers viewed disability primarily as a form of premature aging, justifying early retirement with pension rights. The picture changed when the shift from the disabled older person changed to the disabled young adults. Young men and women, disabled in childhood, or those in mid-career, and who sustained the debilitation of chronic diseases were not accepting a life deemed appropriate for the disabled. This younger generation represented the changing demographics of the disabled and the emergence of a significant number of highly visible, highly articulate leaders, who became a powerful political voice and one of the decisive factors preceding the passage of the ADA.

The rallying cry for ADA was based on equal justice and equal protection, using the model of the Civil Rights Act of 1964. The strategies for achieving the ADA’s enactment proceeded along similar lines. A decade of disability-related litigation began in the late seventies and was based on constitutional issues. The litigation focused on the lack of access for the disabled, discrimination in employment, the provision of inferior services and the use of institutional segregation for people with mental disabilities. The parallel paths of the two movements were further intensified by the active support of the ADA by well known leaders of the civil rights movement. And finally, as a result of a growing advocacy movement, a broadened sense of community among people with disabilities and the emergence of advocacy organizations, local, state and federal officials began to listen and to learn about the issues of the disabled. The core issues were to minimize their dependency and maximize their access to a productive and participatory life.

A brief overview of the ADA law, as outlined by Pardeck (1998), includes the following major components: employers who employ fifteen or more employees, are prohibited from discriminating against a qualified individual with a disability in all terms and conditions of employment; the law prohibits discrimination and increases the accessibility of persons with disabilities to programs run by state and local governments, such as public social work agencies, colleges and universities, it requires public transportation to be accessible to people with disabilities; private businesses serving the public must make their goods and services available to people with disabilities; telephone services must be available to people with hearing and speech impairments by providing a relay service that uses an operator as an intermediary. The law prohibits retaliation against an individual because of actions related to the act and requires the provision of information about the implementation of the ADA, Rehabilitation Act of 1973 and other state laws relating to disabilities.

With passage of the ADA, the move to ensure the rights of persons with disabilities shifted to the implementation arena. The law did not provide clear direction as to the appropriate strategies necessary for its implementation. In the period since the passage of the law, efforts have focused on interpretation and guidelines for administrative action. Some of the efforts to implement the law are becoming noticeable, such as handicapped parking spaces proximate to commercial enterprises (shopping malls, restaurants and public buildings). Many commercial establishments have built special entry ramps and door entrances, sidewalk curb cuts and elevators with braille floor designations. These modifications are necessary to improve the mobility and access to commercial and public buildings for the disabled. The law also requires the systematic review of social practices and public facilities in order to ensure that discriminatory actions can be identified and eliminated.

The law has generated substantial controversy and has raised significant questions during the course of its implementation. For instance, what are reasonable accommodations to meet the needs of the disabled in public transportation and how much should be spent for these accommodations? For employers who are bound by Section 504, what is a reasonable accommodation of handicapped workers? What are appropriate structural changes to government facilities in order to meet accessibility requirements? What must public and private educators do to offer the types of special services that are mandated for the education of handicapped children, and how should these services be funded? Another controversy surrounds the criteria to be used to define disability and who is eligible for protection under the law.

Current research and comprehensive findings (Percy, 2001) indicate that progress is being made in the implementation of the ADA and in moving the nation forward to a goal of eliminating discrimination based on disability. There is discontent about how quickly the implementation is moving, as well as the number of entities who are regulated by the ADA and are not fully aware of nor in full compliance with its mandate.

According to Percy (2001), we do see enforcement agencies like the Equal Employment Opportunity Commission investigating disputes, seeking resolutions and commencing prosecutions where appropriate. And we do see new buildings being constructed according to guidelines that incorporate accessibility for disabled persons. However, significant challenges and obstacles remain that slow ADA implementation and frustrate people with disabilities.

One of the major obstacles concerns the substantial costs involved in meeting some of the accommodations for the disabled. Where compliance requires substantial expenditures of funds, implementation has been slower. Public transit systems have been struggling, for example, to comply with ADA requirements for accessible buses and responsive systems that provide door-to-door transportation. The transit authority’s response in New York City has been “Access-A-Ride,” a program that receives half of its funding from the federal government. The delays that are caused by the cost of these programs require a close monitoring of compliance. There needs to be a better understanding of the extent to which the financing of these programs impede their implementation. There is also a significant need for the development of new and more cost-effective programs and technologies.

Another sticking point of the law concerns questions about who is covered and what constitutes a disability for coverage. The framers of the law preferred language that related to conditions that limit one or more major life functions. As a result of the vague language, a number of court cases have focused on what conditions represent a limitation of life functions. It is quite likely that these coverage issues will continue to find their way into the federal courts where interpretations of the law will set precedents for future litigation.

As Percy notes, the challenge of mental disabilities looms large in the interpretation of the law. Protecting individuals with mental disabilities has been relatively more difficult than protecting physically handicapped persons, because our knowledge and understanding of mental disabilities, both within the medical community and in the general population, continues to change, making it difficult to understand mental disability and how it can be appropriately accommodated.

The listing of settlements and current agreements secured through the Department of Justice is impressive and illustrates the impact of the ADA. The list includes many nationally recognized companies, including hotels, restaurants, recreation facilities, and rental car companies. Each of the companies agreed to take action to address the needs and concerns registered by people with disabilities.

Current findings on administrative compliance with the ADA by municipal governments were focused on at least ten cities across the country. Once the data had been compiled and analyzed, the cities were categorized in one of three groups based on their compliance with the seven major administrative requirements of the law. Progressive cities are those that have clearly made an attempt to comply with the components of the law in a timely fashion, even though they have not consistently met the statutory deadline for each administrative requirement. They have also included the ADA in almost all elements of municipal planning and programming. The majority of the progressive cities approach the law as civil rights legislation, train and direct staff members to ensure that the provisions of the law are fully implemented, and have adopted a grievance procedure.

In contrast, reluctant and non-compliant cities are those that have not met the majority of the law’s requirements, although some have been forced to do so years after the statutory deadline has passed. The law is generally viewed as an unfunded mandate and becomes a low priority in municipal governance. Reluctant cities tend to under staff the ADA program and offer few resources for program management.

The study reveals that implementation of the law is most successful in cities where an administrator has recognized the importance of the ADA as a civil rights law and the potential legal exposure it represents. Implementation is slower in cities ranked as reluctant and non-compliant, as a result of a belief that the law’s provisions are vague and unlikely to be enforced. This attitude could prove legally expensive for a municipality choosing non-compliance.

In studies done at Cornell University on ADA implementation in the federal and private workplace, researchers have found that while many of the 43 million adults with disabilities are eager for employment, these individuals still face substantial barriers in the recruitment, retention and career advancement processes. According to principal investigator, Susanne Bruyere, Ph.D., director of Cornell’s Program on Employment and Disability, barriers that impede applicants and employees with disabilities exist mainly because of negative workplace attitudes and supervisors’ lack of information and training on ADA legislation. The research also indicates that these barriers exist in both the federal and private sectors. Dr. Bruyere concluded that attitude issues are most effectively addressed when they are integrated into an organization’s staff development training and when managers and supervisors are trained on the various accommodations necessary for different disabilities, as well as how to effectively supervise employees with disabilities.

On January 13th, 2004, the Supreme Court heard oral arguments in a case that raised questions about the constitutionality of the ADA. While Tennessee v. Lane did not directly challenge ADA’s provisions governing building design and construction, some of the justices’ questions focused on architectural barriers that the law addresses. The case stems from a 1998 lawsuit filed by George Lane and Beverly Jones, both paraplegics, against the state of Tennessee and alleging violations of the ADA’s Title II. Title II bars government entities from denying public services to individuals with disabilities and allows those harmed to seek damages. Lane claimed that while attending a hearing, he had to crawl up two flights of stairs in Tennessee’s Polk County Courthouse. He sued the state for what he characterized as humiliating treatment that violated the disability act. On May 17th, 2004 in a 5-to-4 ruling, the justices agreed that George Lane and other disabled persons could sue, if states ignore the ADA law that protects their rights.

Although the Americans with Disabilities Act has brought about many positive changes for people with disabilities, there is still much to be done to ensure integration into mainstream society. It is important for all of us to become effective self-advocates for our rights under the law. To become an effective advocate, we must know the law, our rights and entitlements, and we all need to have sufficient knowledge in order to recognize when these rights have been violated.

Because I am one of the thirty-five or forty million Americans with a disability, writing about the ADA is both a personal and professional experience. It is personal, because the law has enabled me to attend school when I could not use the conventional public transportation system. By providing me with paratransit services, an alternative system for persons with disabilities, I was able to attend school on a regular basis. I will eventually obtain an M.S.W. and realize my professional goal of becoming a social worker and helping others with disabilities obtain the protection and benefits of the law.

References

Americans with Disabilities Act: Implementation in federal and private workplaces; Cornell University, New York State School of Industrial and Labor Relations (2000).

From ADA to empowerment, The report of the task force on the rights and empowerment of Americans with disabilities. Appointed by Congressman Major R. Owens, Chairman of the House Committee on Select Education, October 12th, 1990.

Pardeck, J.T., (1998). Social work after the American with Disabilities Act: New challenges and opportunities for social service professionals London: Auburn House p.7

Percy, S.L., (1992). Disability, civil rights and public policy: The politics of implementation. Tuscaloosa, Ala: The University of Alabama Press p. 10,11.

Percy,S.L.,(2001).Challenges and dilemmas in implementing the American with Disabilities Act: Lessons from the first decade. Policy Studies Journal: 2001, Vol. 29 Issue 4, p. 633, 8p.

Switzer, J.V., (2001). Local government implementation of the American with Disabilities Act: Factors affecting statutory compliance, Policy Studies Journal: 2001, Vol. 29 issue 4, p.654 9p.

Winston, S., (2004). The Supreme Court listens to ADA arguments, Engineering Newsrecord, 08919526, 1/19/2004 Vol. 252, Issue 2.