Returning to the framers’ intent: efforts to restore the ADA’s protections
When Congress passed the Americans with Disabilities Act in 1990, its intent was to prevent discrimination, in all aspects of society, against people with disabilities.
Now some members of Congress and the disability community say recent U.S. Supreme Court decisions have negated protections afforded by the ADA, and those protections need to be restored.
Sponsors of the ADA Restoration Act (H.R. 3195 in the House and S. 1881 in the Senate), being debated in Congress as Quest went to press, contend that language in the original ADA statute requires the high court to focus its attentions on defining who is disabled — not on discrimination actually experienced by people with disabilities.
House Majority Leader Steny Hoyer (D-Md.) co-sponsored H.R. 3195. “The point of the ADA is not disability; it is the prevention of wrongful and unlawful discrimination,” he said.
Hoyer and other ADA Restoration Act co-sponsors say the U.S. Supreme Court decided incorrectly when it recently ruled that people with disabilities who can function well due to their use of “mitigating measures” (such as assistive devices or medicine) are not protected by the ADA.
The court said a person’s impairment must substantially limit his/her physical function “in the present moment.” If a device or medication alleviates that impairment in the present moment, the person no longer is considered disabled, said the court.
Man with FSHD bumps heads with the courts
Carey McClure of Griffin, Ga., who has facioscapulohumeral muscular dystrophy, has firsthand experience with this narrow interpretation.
McClure, 46, an electrician for more than 20 years (now retired due to a back injury), has difficulty raising his arms above shoulder level. When he had to work above his head in the course of his job, he improvised in a variety of ways. He would “throw” his arms over his head so he could reach the work area; or stand on a ladder, stool or hydraulic lift so the work was below shoulder level; or rest his forearms on some intervening surface, such as another ladder, in order to reach his work.
In 1999, McClure received a job offer to be an electrician at a General Motors assembly plant. During a pre-employment physical exam, the doctor noted McClure’s inability to fully raise his arms. He asked McClure how he could function on the job, to which McClure replied he would stand on a ladder, etc. Even though other electricians at the plant used ladders, the doctor wouldn’t approve McClure for employment.
McClure challenged the call. GM countered that even though it had withdrawn its job offer because of McClure’s physical limitations, he did not have a disability that qualified him for ADA protections.
Court sides with business
In 2003, the Court of Appeals for the 5th Circuit sided with GM, focusing exclusively on whether McClure should be considered disabled, not on whether GM had discriminated against him.
The court found, in part, “… [McClure’s] ability to overcome the obstacles that life has placed in his path is admirable. In light of his ability, however, we cannot say that the record supports the conclusion that his impairment substantially limits his ability to engage in one or more major life activities.”
“It was terrifying,” McClure said. “I had had to quit my current job to take the GM exam [in Texas]. I had sold my home and everything was packed to move. I wound up losing two jobs.
“All GM had to do was give me my chance. They could have cut me loose after 90 days if I didn’t work out.”
McClure has now testified before the House in support of the ADA Restoration Act. Buttressed by his testimony and others, both House and Senate versions of the Restoration Act have three main action components:
The legislation is by no means guaranteed smooth sailing to approval. The Department of Justice, in a letter to Congress, said, “the [Restoration Act] would dramatically increase unnecessary litigation, create uncertainty in the workplace and upset the balance struck by Congress in adopting the ADA.”
The Bush Administration, with support from the business community, has said the bill, as presently worded, is actually an expansion of the ADA and would “cover anyone.” The White House has proposed modified language that would protect from discrimination some people who use medication or assistive devices to mitigate their disabilities.
That modification, at this juncture, is not acceptable to some backers of the restoration legislation. They contend it would not, for example, cover people who cannot mitigate their disabilities.
“Whether the ADA Restoration Act lives or dies is anyone’s guess at this point,” said Erika Hagensen, director of disability rights, family and technology policy for the Disability Policy Collaboration in Washington. She said the business and disability communities have been negotiating to move the bill forward, but it still requires added support in the Senate to overcome any administration resistance.
Head for the polls (or vote by mail)
Local, state and presidential elections this fall — and issues such as the ADA Restoration Act — are good reasons for people with disabilities to cast their vote(s) and make their unified voice heard.
Voting access for people with disabilities has steadily improved. In 1965, the Voting Rights Act took the first major steps to overcome rampant and long-practiced discrimination against voters on the basis of race, religion, and intellectual and physical disability.
In 1984, the Voting Accessibility for the Elderly and Handicapped Act took more strides toward improvement by requiring that polling places for federal elections be physically accessible to people with disabilities. The law also mandated availability of telecommunications devices for the deaf at polling sites.
In 1993, the National Voter Registration Act increased historically low voter registration rates of minorities and people with disabilities. The act requires all offices of state-funded programs for the disabled to provide program applicants with voter registration forms, to assist with completing the forms and to transmit completed forms to state voting officials.
Most meaningful of all was the Help Americans Vote Act of 2002. It provided that by 2006, all voting locations would be accessible to people with disabilities, including those in wheelchairs, and the voting process itself would be independently accessible to all people with disabilities, including the blind.
For voters with disabilities who still find it difficult to physically make it to their designated voting place, voting by mail always is a viable option. Signing up to be sent a ballot by mail usually is simply a process of contacting the local voter registration office.
Parking violators caught on camera …
Once too often, Ginger Venable was frustrated in trying to find an accessible parking spot.
Venable, 35, of Marietta, Ga. has limb-girdle muscular dystrophy. When traveling in her adapted van, she looks for parking spaces specifically reserved for vehicles displaying a disabled license plate or hanging placard.
“It was happening to me everywhere: government buildings, the pharmacy, the mall … people were blatantly taking those spaces,” she said. “I thought it was outrageous, so I starting taking photos every time I found an unauthorized vehicle in a disabled-designated space.”
That was dozens of photos ago. After she had amassed a sizable collection (she took them with her cell phone camera), she called the local television station to relate her story. She appeared in regional newscasts shortly after.
Venable made the point on television that the problem is not only unauthorized cars parking in designated accessible spaces. “Disabled-only spaces are truly two spaces. One is for the vehicle; the other [usually marked with diagonal stripes] is space for disabled people to use when exiting their vehicle,” she said.
In her case, that extra space allows her to extend a power lift out the side of her van so she can exit and enter the van. If another vehicle occupies the space while she’s in a store, “I’m trapped until they come back,” she said.
Venable’s crusade now has an unexpected companion. A bill pending in the Georgia Legislature would take 10 percent of all fines for illegal parking in designated accessible spaces and give the proceeds to disability advocacy organizations.
… and listed on the Web
HandicappedFraud.org was created by a woman with a severely disabled family member. Like Ginger Venable, she grew frustrated at finding accessible parking spaces commandeered by unauthorized motorists.
The Web site posts reports of violators that have been submitted from people across the country. The reports are sent regularly to state departments of motor vehicles in hopes those agencies will spot fraud trends and alert law enforcement to problem areas.
HandicappedFraud.org has a blog section so victims of fraud can compare experiences. The group strongly discourages confrontations with violators. Instead, it offers free sticky notes that can be affixed to the offender’s vehicle. They read, “You’ve been reported at HandicappedFraud.org.”
Recent ADA enforcement actions
The legal actions described here typically were initiated by the Department of Justice (DOJ) in response to complaints from people with disabilities.
University of Michigan football stadium. Wheelchair users had complained that existing pairs of wheelchair and companion seats, 81 all told, were located only in the end zones. Now, as part of a DOJ settlement agreement and a $226 million expansion, by 2010 the university will provide more than 300 pairs of the seats at locations throughout the stands. The school also will add accessible parking, improve access to bathrooms, provide accessible routes throughout the stadium and modify its ticket sales policies to make them more attainable by those with disabilities.
Wallace Theater Corp., Maui, Hawaii. Wharf Cinemas, a four-theater movie complex, had only one wheelchair seating location in each of the theaters. If two wheelchair users wanted to see the same movie, one was turned away. As part of its settlement with the DOJ, Wallace agreed to provide additional wheelchair seating. It also agreed to install assistive listening systems and modify its entrance, concession, lobby and theater doors to make them fully accessible.
38th District Court, Eastpointe, Mich. Even though it was built after the ADA went into effect, the courthouse for the district was not in compliance in multiple aspects. In its settlement with the DOJ, the city agreed to create an accessible entrance to the building, along with accessible parking. It will modify or replace curb ramps; install visual fire alarms; replace an inaccessible water fountain; create accessible routes inside the courtroom to the witness stand; put wheelchair seating areas in the spectator area; remodel bathrooms; and modify one holding cell.
Metropolitan Washington Airports Authority. This settlement agreement involved accessible parking at airports in the nation’s capital. A woman who uses a wheelchair was unable to find parking at Ronald Reagan National Airport, and missed her flight, along with an important meeting. Following a DOJ investigation, the airport authority agreed to create 15 additional handicapped parking spaces, all van-accessible, in addition to 35 existing spaces in a daily parking garage; established 16 additional spaces (for a total of 40) in the economy parking area; and modified the MWAA Web site to include information about accessible parking. It also agreed that if an accessible parking lot is full, it will post a uniformed officer to help drivers find the nearest accessible parking.
The DOJ’s ADA Mediation Program is designed to avoid costly legal battles by bringing complainants and respondents together voluntarily to work out their differences with the help of neutral mediators. Of all ADA-related complaints received by DOJ, 78 percent have been successfully resolved by mediation.
Some recent examples:
Most accessible U.S. city
The National Organization on Disability (NOD), in its annual Accessible America Awards, has named Houston the country’s most accessible city for 2007.
NOD based its award on a wide range of Houston’s disability-friendly programs:
The award includes $25,000 that Houston Mayor Bill White said will help fund local disability-related efforts.
Other finalists in the competition were Alexandria, Va.; Bloomington, Ind.; Columbus, Ga.; Hattiesburg, Miss.; Indianapolis; Miami-Dade County, Fla.; New Haven, Conn.; and Sioux City, S.D.
Visit the ADA home page (www.ada.gov) for a wide range of information about disability issues, including how to file an ADA-related complaint.
Also call toll-free (800) 514-0301 (voice) or (800) 514-0383 (TTY) for assistance in both English and Spanish.
ADA specialists staff phone lines from 9:30 a.m. to 5:30 p.m. (ET) Monday, Tuesday, Wednesday and Friday. On Thursday, hours are 12:30 p.m. to 5:30 p.m.