The ADA: Where Are We?

weisman-heumann-wodatch-roch
James Weisman (right), Judy Heumann and John Wodatch all played key roles in shaping the ADA and enjoyed a chance to catch up at this year’s Roll on Capitol Hill.

James Weisman, United Spinal’s general counsel, has been fighting for disability rights since long before the Americans with Disabilities Act was even a glimmer in most advocates’ eyes. He helped build landmark lawsuits that paved the way for the ADA and had a key role in the historic legislation. As the ADA nears the midpoint of its third decade, Weisman took some time to reflect on the act’s legacy and what has changed since President George H.W. Bush signed it into law in 1990.

Thirty-five years ago I represented a head nurse of a psychiatric unit in a major metropolitan hospital. Years earlier she had fractured her knee trying to subdue a violent patient, and she developed a limp. Her uneven gait caused a tumor to develop in the heel of her foot. It was removed surgically and she was cleared by her physician to return to work. However, she would have to use a cane. The hospital refused to allow her to return to work using a cane despite the fact that she could perform all of the essential functions of her job. Her duties were primarily administrative, but she left her desk several times a day to make rounds to oversee her staff.

The director of personnel for the hospital stated that the appearance of a uniformed nurse who might be too slow to respond to an emergency (because she uses a cane) concerned the hospital. When it was suggested that she not be required to wear a nurse’s uniform and that all of the functions of her job could be done in “civilian clothes,” the hospital instead offered her paid leave until she could come back to work without a cane.

She was paid for six months to stay home while another nurse was paid to do her job. The slightest accommodation – i.e., allowing the nurse to work out of uniform – would have satisfied their concerns and saved the hospital tens of thousands of dollars spent replacing this valuable, experienced employee, but this concept seemed alien to the hospital management.

At about the same time I represented a woman who was denied admission to a public pool because she used a wheelchair. She was a medalist in Paralympic swimming events and probably swam better than most people who used the pool. The requirement for admission for everyone except those with obvious physical disabilities was that swimmers be residents of the town. Only those with disabilities were required to pass a test administered by the head lifeguard and if they passed they could only swim between the hours of 12 and 2 on weekdays. Non-swimmers without disabilities were admitted freely. When we approached the town’s parks commissioner and made him aware that New York’s non-discrimination law outlawed denying admission because of disability,
he still refused to admit her.

In court he stated that people with disabilities would be dangerous to themselves and dangerous to everyone else in a public pool. When asked if people with physical disabilities who could not swim were more likely to jump in water too deep for them than able-bodied non-swimmers, he said “probably not.” “How,” he was asked “are people with disabilities dangerous to everyone else?” He said the lifeguard would pay more attention to them than to everyone else, which would be detrimental to everyone else’s safety. The parks commissioner withheld from a Paralympic swimmer the right to swim because of her disability, a black-letter violation of the law. But the court agreed with the parks commissioner.

By the way, the commissioner was asked if good-looking women in bathing suits were similarly distracting and therefore detrimental to the safety of others and, if so, was there a rule requiring them to swim between 12 and 2 on weekdays. The judge laughed when the commissioner struggled to answer, but the analogy was not influential. The case was eventually reversed on appeal.

Perhaps the most telling example of pre-ADA thinking came in answer to a complaint filed by Eastern Paralyzed Veterans Association (EPVA, United Spinal’s predecessor organization) in 1979 against the New York City Transit Authority, alleging that it was discriminatory practice to purchase inaccessible buses and renovate stations inaccessibly.

EPVA was not demanding that buses and/or stations be retrofitted. Instead we argued that when the transit agency chose to purchase buses or renovate stations in the ordinary course of business, New York’s non-discrimination law meant that buses should be purchased and stations renovated so that they are usable by all citizens, not just those who could walk. Transit’s answer to EPVA’s complaint explained that the agency does not post signs stating “no disabled allowed” or deny admission to disabled people if they can enter the facility, and that is all that non-discrimination requires.

They argued that purchasing accessible buses and renovating stations accessibly was “affirmative action,” not non-discrimination. The highest court in the state agreed with transit, but EPVA eventually won the litigation on other grounds. The transit agency took advantage of traditional thinking about non-discrimination — that is, merely refraining from doing negative things and treating everyone equally will keep the agency out of trouble.

The ADA cleared this up once and for all. The failure to make reasonable accommodations, even if it requires action — i.e., removing barriers, providing curb-side service or making home visits when barriers cannot be removed, raising a desk on blocks, putting an amplification device on a telephone or a large-screen monitor on a worker’s computer is required, if it is reasonable. The term “accommodation” is always modified by the word “reasonable” and reasonableness is subject to consideration of the assets of the accommodator.

Perhaps the greatest benefit of the Americans with Disabilities Act to people with disabilities is that it created a frame of reference for a previously unenlightened population regarding what is, and is not, an act of discrimination. Borrowing from Section 504 of the Rehabilitation Act of 1973, the ADA changed American jurisprudence — before ADA non-discrimination was merely a passive act.

Passive non-discrimination meant refraining from doing bad things to people on the basis of status such as race, religion, age, gender or disability. Excluding people with disabilities or offering them less pay than those without disabilities similarly employed might have been a discriminatory practice under state law, but the ADA dramatically expanded the concept of non-discrimination by requiring “active” non-discrimination.

The failure to make reasonable accommodation is a discriminatory practice as described by ADA. That is, action is required, on occasion, and merely refraining from adopting policies that exclude, withhold from or deny opportunities to people with disabilities is not enough. “Reasonable accommodation” which fosters inclusion and participation is required by the ADA’s non-discrimination mandate. Twenty-three years after the ADA’s passage, big business understands this, as do proprietors of places of public accommodation like theaters, stadiums and arenas, and many people with disabilities and their able-bodied and mentally capable fellow citizens.

Until the ADA, the protected classes — racial and religious minorities for example — could expect even-handed treatment (i.e., all seats on all buses had to be available to blacks and bus companies had to refrain from requiring blacks to sit in the rear, and employers had to stop excluding blacks or Jews from the workforce). The ADA requires action to accommodate the needs and rights of people with disabilities.

I believed 23 years ago that the Individuals with Disabilities Education Act (IDEA), coupled with the reasonable accommodation mandate of the ADA, would change America profoundly and permanently, and perhaps it has. However, the mainstreaming of disabled children into the public school system, which, after almost 40 years of implementation, should have removed the stigma of disability, coupled with society’s understanding that reasonable steps have to be taken to accommodate people with disabilities, has not resulted in the realization of the ADA’s employment and integration goals. While both the public’s consciousness and the awareness of people with disabilities of their rights has been elevated by the ADA, the 65 percent unemployment figure of those with severe disabilities is unchanged 23 years after passage of the ADA.

The women’s movement changed us profoundly and permanently in a short amount of time. No longer do employers
think that it is fair to pay women less than men because men support families. President Bush called for a constitutional amendment to ban gay marriage, but a decade later the Supreme Court has acknowledged the rights of same-sex partners to marry. Women and gays struggled for years, but society’s change in attitude seems to have been quick and profound. Those visiting new stadiums and seeing wheelchair users integrated into the seating plan and able to sit with their able-bodied companions or using public transportation are viewing our movement from the outside. Maybe they think change has come quickly and profoundly for people with disabilities just like I do about gays and women. The changes they are aware of — curb ramps, parking, and braille text, for example, while readily observable are apparently not the kind of changes that affect us profoundly since the majority of people with disabilities are still unemployed.

United Spinal continues to work to improve employment conditions for people with spinal cord injuries and disorders. Currently we are working to working to ensure that wheelchairs and urological supplies and other necessary health products would be covered under most employer health plans.