Issue of the Week

A Decade of Disability Rights

by Lynda Crawford

20 November 00

Marilyn Hauser has been a paraplegic since her bout with polio forty years ago. "There was nothing then, no awareness," she said. "There has been tremendous improvement," For this, she largely credits the Americans with Disabilities Act (ADA), which was signed into law ten years ago.

A civil rights law, the Americans with Disabilities Act guarantees equal opportunity for the disabled in employment, transportation, state and city government services, public facilities, and telecommunications. But ten years after its passage, there are still some problems.

"There is really no enforcement of the ADA," said Hauser, "unless you do your own suing, and that can be very time consuming. People with disabilities don't have the time because everything takes longer to do."

"And there are things wrong within the ADA itself," she added. "Take the standards set for handicapped bathrooms. They are just too high. All the newly constructed bathrooms that follow the ADA specifications are inaccessible to me."

"But while Hauser doesn't think the Americans with Disabilities Act goes far enough, opponents question the premise of the law, the vagueness of its wording, and its high cost. One estimate has placed a price tag for compliance so far at five billion dollars. The debate is not just academic. A case currently before the United States Supreme Court could, in effect, end the ability of the federal government to enforce much of the law.
THE MEDIA AND THE ADA

Cristina Korman, a 22-year old New Yorker with learning disabilities, is generally satisfied with the Americans with Disabilities Act.

What disturbs her is not the ADA, but the way the media portray it.

She is not alone. A study by New York University School of Law found that "numerous print and electronic media reports suggest that the law is being abused, misapplied, misinterpreted or has generally run amok."

Examples included:

  • The man who brought a loaded gun to work and claimed he was protected by ADA because he had a psychiatric disability: [ABC News Special: The Blame Game (ABC television broadcast, John Stossel reporting, August 17, 1995)].
  • An obese woman who sued a movie theater because she could not fit in the seats: [Crossfire: Casey Martin Wins Big in Court with ADA (CNN television broadcast, February 13, 1998)].
  • The obese transit worker who was denied a promotion to train operator when he failed a stress test, then sued claiming discrimination: [20/20: How Ameri cans with Disabilities Law Can Backfire (ABC television broadcast, John Stossel reporting, August 15, 1997); Headline News, (CNN television broadcast, August 31, 1998)].

    All three of these cases were dismissed, but that was never mentioned in the stories.

    The study was included in the National Council on Disabilities report, "Promises to Keep," and concludes that "negative media reports about ADA persist, in part, because no national educational strategy serves as a counterpoint to the misperceptions and misinformation forming the basis of most news reports and entertainment features. Emphasis by the media on controversial litigation far outweighs reports about solid victories reached in the courts, or other aspects of ADA enforcement and compliance, thus negatively influencing the public's perception of the law. Extreme examples of complaints are featured for their shock value, even when the Equal Employment Opportunity Commission or other agencies decline to investigate the allegations—|The challenge for the ADA enforcement agencies is to find ways to reverse the negative effects of years of public misrepresentation of the law before public opposition reaches a critical mass."

  • ADA AT WORK

    An estimated 1.7 million New York City residents and at least 54 million Americans live with disabilities. That's about one in five of us. Among people 45 to 64 years old who earn below the poverty level, the figure is one in two.

    The Americans with Disabilities Act, signed into law in 1990, extended the provisions of a federal law (Section 504 of the 1973 Rehabilitation Act) and enlarged it to apply to private businesses.

    As of last year, 125,946 people across the country filed discrimination complaints with the Equal Employment Opportunity Commission under the ADA. The greatest number of complaints were job related, but issues of public access, accommodation and equal opportunity were also frequently involved. But some 95 percent of the people filing employment complaints lost in court; 85 percent were rejected before even getting to court. Currently there is a backlog of over 40,000 pending complaints. This is an improvement over last year, when more than 50,000 cases were pending.

    To note what disabilities were involved in these complaints is to realize how broad the definition of disability is in the law. The largest number of complainants were those with back injuries(16 percent). These were followed by those with psychiatric disabilities (13.7 percent), and then neurological disorders (10.8 percent), impairments of the arm or legs (9.6 percent). people with heart disease (4 percent), diabetes (3.6 percent), substance abuse (3 percent), blood disease (2.6 percent), vision (2.5 percent) cancer (2.4 percent) and asthma (1.7 percent).

    FROM PUBLIC TOILETS TO THE FINISH LINE

    One ADA case familiar to many New Yorkers was the public toilet fiasco in the early 1990's. Charming public toilets, created by the French designer Decaux, were to be installed around the city. Attractive and self-cleaning, they were about the size of an airplane bathroom and offered the user fifteen minutes of privacy for a quarter. (After fifteen minutes, the doors automatically opened, which would discourage anyone from taking up long-term residence). The cost to the city would be completely reimbursed by the advertising on the outside kiosk. Just the sight of one of the pilot toilets in operation at the time near City Hall had a reassuring effect, leading one to believe that the city was becoming a more hospitable and civilized place after all. That is, unless you were in a wheelchair.

    The small size of the toilets made them inaccessible. Disabled activists viewed this as an affront, as well as a violation of the law: All newly constructed facilities are required to be accessible to the disabled. The City Council offered to construct larger units alongside the small ones, but that was not acceptable to disabled groups, who saw this as perpetuating a new version of "separate but equal." Council members finally decided the only solution was to create toilets large enough to accommodate both people with and without wheelchairs. But the French designer refused to alter his design.

    Six years later, the public toilets still do not exist. But the City Council has earmarked five million dollars in its new budget for at least 50 high-tech toilets. "If the toilets in the new proposal are too large," one official said recently, "there will be limits on where they can be placed without creating sidewalk congestion." The debate goes on.

    And so do the conflicts.

  • A New York state law student with a reading disability who won her bid in 1998 to be allowed to take extra time on the bar exam.
  • Yankee Stadium and the City of New York, which owns the stadium, were sued for discrimination against fans with disabilities, because the stadium was inaccessible to people using wheelchairs. The Yankees responded this season by inaugurating wheelchair-accessible seating within each alcove of the Main level and in one section of the Loge.
  • Wheelchair racers in the city sued the New York Road Runners Club last year for discrimination against wheelchair athletes in the New York City Marathon. The wheelchair racers repeatedly found themselves held back, sometimes for as long as half an hour, to allow runners to pass, and were not allowed to cross the finish line like everyone else. Before the case was heard, the Road Runners Club agreed not to unreasonably or unlawfully obstruct the racers. A separate wheelchair division was created for this year with its own award trophies.
  • However, a new lawsuit was filed this year by six disabled athletes (not in wheelchairs) over the start time disabled runners were assigned, fifty minutes later than in the past, which would force many of them to finish the race in the dark. A lawyer for the Road Runners Club said the allegations were "just wrong," that the Achilles Track Club had agreed to the later start time.

    WHAT HAS CHANGED

    Buses kneel and pack in wheelchair passengers amidst the crowd. Curbs are slit, benefiting people with shopping carts, bicycles and scooters, as well as those in wheelchairs.

    The subways remain a challenge. According to the Mayor's Office for People with Disabilities, only eleven stations in Manhattan, three in the Bronx, seven in Queens, and five in Brooklyn are currently wheelchair accessible. But the city has plans to make 100 stations accessible. Raised-line Braille maps are now available for most subway and bus lines, and there is a Transit Elevator Hotline [(800) 734-6772; TTY (718) 596-8273] with information on elevator and escalator availability.

    Online shopping and other Internet activities have had a beneficial effect. A recent Harris poll found that adults with disabilities were twice as likely as the nondisabled to report that the Internet had significantly improved their lives." The poll also found, though, that only 43 percent of disabled people who responded had Internet access, while 57 percent of the nondisabled had access.

    An updated edition of Access to All, a guide put out by Hospital Audiences, listed over 300 accessible museums, theaters, hotels and restaurants in the city.

    LOCAL LAWS AND ADDITIONAL SUPPORT

    In addition to the Americans with Disabilities Act, New York City has its own laws to protect and accommodate the disabled, including Local Law 58. This 1987 law requires all new construction and renovations in residential housing, public spaces, educational facilities and businesses to provide access for people with disabilities.

    Government buildings can be some of the least accessible, including public schools, state universities, court houses, post offices and election polling places. Only one-third of the city's public schools, for example, are handicapped-accessible, according to a study by the City Council.

    Lehman College in the Bronx, however, just opened a hub for visually impaired and other disabled students. The classroom, the first of its kind, is equipped with a Braille printer, a monitor that magnifies text, software that speaks to users so they don't have to read the screen, and other technology.

    The New York City Human Rights Law prohibits housing discrimination based on disability and requires owners to make reasonable accommodations. Last year a co-op board on Central Park West was found to have violated this law by refusing to construct a ramp at the front entrance of the building or install automatic door openers on the elevators, even when the shareholder-tenant had offered to pay for the expense. Employers are also prohibited from discharging, refusing to hire or refusing to promote someone because they are disabled under the New York City Human Rights Law.

    Immigrants in the city with physical or mental disabilities preventing them from learning English or civics, but who otherwise meet the requirements for citizenship, won a battle with the Immigration and Naturalization Services to have the English and civics tests waived. Even the oath of citizenship may soon be waived for immigrants with Alzheimer's disease, Down syndrome or autism with passage of new legislation in the U.S. Senate.

    And a bill is currently in the City Council to create a new city agency that would ensure the ADA is enforced city-wide; reportedly, the bill has the support to make it through.

    STILL, NOT ENOUGH

    Despite all these advances, some who work in the field of disability don't see much progress. "Folks with disabling conditions are pretty much the same ten years after the passage of the Americans with Disabilities Act as they were ten years ago," said Dan B. Rosen, CEO of the International Center for the Disabled on East 24th Street in Manhattan. "It is a population that continues on as second class citizens despite the ADA.

    "The issue isn't the ADA," said Mr. Rosen, "but jobs, housing and transportation. We still have 60 percent unemployment or underemployed among the disabled. There is not nearly enough housing, particularly for physically disabled, and there are a host of transportation issues. A lot has not changed."

    Rosen conceded that there are some improvements, like accessible buses. And he is encouraged by legislation passed on the federal level that is beginning to have an impact on New York, such as the Work Incentives Improvement Act, which would allow people with disabilities who find work to keep receiving government health benefits while earning up to $45,000.

    However, he stressed, this program requires a partnership between the state and the federal government, and it is not in effect in New York because the State Senate did not take up the bill for a vote. (Nevertheless, Rick Lazio used campaign ads picturing disabled people praising the program and thanking Lazio for sponsoring the bill, not mentioning that it does not currently exist in New York.)

    "The issue is economics more than the ADA," said Rosen.

    OPPOSITION TO THE LAW

    Critics of the Americans with Disabilities Act would agree that the issue is economics. In "The Costly Compassion of the ADA" (The Public Interest), Roger Clegg argues that "civil rights laws are usually justified on the grounds that discrimination is either irrational, immoral or both." It is certainly not irrational to avoid the costly expenditures required for the extensive accommodation of people with disabilities.

    "With respect to the morality of the ADA," continues Clegg, "the problem is that there are so many different definitions of 'disability.' Even if it is wrong for a restaurant to refuse to replace steps with a ramp, it certainly does not seem immoral to avoid hiring people who are rude to customers or co-workers' rudeness can be the manifestation of a disability. It also does not seem immoral for a dentist to want to treat an HIV-positive patient where it is safest, or for a police force or trucking company to insist, for safety reasons, on two good eyes for its officers and drivers. Nor does it seem wrong for a prison to bar physically or mentally handicapped inmates from boot-camp programs. It also does not seem moral to force an employer to hire a disabled person when doing so means that a better qualified nondisabled person will be turned away.

    "The core of the ADA's rationale" wrote Clegg, "is that Congress felt so sorry for the disabled that it was willing to force other people to help them, at considerable expense. (Clegg quotes the Washington Post as estimating the price tag for businesses forced to comply with the ADA to be $5 billion.)

    Clegg and other opponents of the ADA suggest that disabled workers too might be better off if the ADA were scrapped, as employers are now afraid of "hiring a lawsuit." An article in Business Week reported on two separate studies by economists at the Massachusetts Institute of Technology and at the University of Chicago that found "employment of disabled workers fell rather than rose since enactment of this law, mainly because of reduced hiring rather than greater firing of the disabled."

    Even if the more frivolous complaints are dismissed, opponents argue, the law encourages too many costly lawsuits, which benefit no one, except perhaps trial lawyers.

    However, another Business Week reporter argued that the number of ADA lawsuits has actually declined in recent years and that employers win in court 92 percent of the time. (It is actually 95 percent, according to the most recent survey by the American Bar Association). "If anything," wrote Susan B. Garland, "the law often tilts unfairly against job applicants and employees with treatable disabilities."

    ADA TO BE DIMINISHED?

    The Supreme Court is now deciding a case (Garrett vs. State of Alabama) that could diminish the power of the Americans with Disabilities Act. It involves two separate ADA lawsuits against the state of Alabama by workers who charge discrimination based on disability.

    The actual charges of discrimination involved a nurse at the University of Alabama who was demoted after leave for breast cancer treatment, and a Department of Youth Services worker with asthma who was refused the accommodation of enforcing a no-smoking policy and repairing an exhaust on a vehicle he drives. But that they were discriminated against is not at issue. Instead the issue is whether the federal government has the authority to sue the state at all. A lawyer for the state has argued that it does not have that authority, citing the 11th Amendment which limits federal lawsuits against the states. The decision could affect disabled state employees and people with disabilities who use state services throughout the country. More than 60 advocacy groups and legal organizations have filed briefs with the court against the state's position.

    "Beyond the ADA, if the state prevails here, some suggest that it could lead to attacks on other lawsuits in other states under other laws such as the Fair Housing Act and certain anti-discrimination laws that prohibit actions that might have a discriminatory effect," legal correspondent Jan Crawford Greenburg recently said.

    And what effect would it have on the people within the disability community?

    "The disability movement is moving forward," said Daniel B. Rosen at the International Center for the Disabled. "A loss in the Garrett case would not stop the movement. It may slow it down, but it won't be stopped."

    THE NEXT TEN YEARS

    The National Council on Disability (NCD), the federal agency charged with making recommendations on issues affecting people with disabilities, recently released a report that reviewed enforcement of the ADA from 1990 to 1999: "Promises to Keep".

    This report concluded that "while the Administration has consistently asserted its strong support for the civil rights of people with disabilities, the federal agencies charged with enforcement and policy development under ADA have, to varying degrees, been under funded, overly cautious, reactive, and lacking any coherent and unifying national strategy. In addition, enforcement agencies have not consistently taken leadership roles in clarifying 'frontier' or emergent issues."

    As for what lies ahead, the National Council on Disability is circulating a draft report "Closing the Gap: A Ten-Point Strategy for the Next Decade of Disability Civil Rights Enforcement", that addresses what it will take to end discrimination for people with disabilities.

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