ADA Roundup Summer 2010

Article Highlights:
  • Final language for new ADA benefits is still being hammered out.
  • ADA victories range from sidewalk repairs to people with disabilities being guaranteed the right to ski.
  • U.S. Department of Justice continues vigorous pursuit of ADA enforcement actions and a strong mediation program.
by Bill Norman on July 1, 2010 - 5:31pm

QUEST Vol. 17, No. 3

The Americans with Disabilities Act turns 20 this July. The landmark legislation is still very much a work in progress. Here’s a look at many things ADA-related, both positive and challenging.

‘Disability’ still not defined

The ADA Amendments Act of 2008 — which became effective on Jan. 1, 2009 — made several significant changes to the definition of “disability” as it pertains to employment and protections afforded by the law. A year-and-a-half later, the exact language still is being hammered out.

The essence of the language changes was overwhelmingly positive for employees with disabilities. Rather than interpreting the term “disability” so narrowly that many people, including those with significant disabilities, were denied ADA employment protections, the ADA Amendments Act focuses attention on whether employment discrimination has occurred, and not on whether the employee is disabled. (For more on the ADA language changes, see “ADA Roundup” in the July-September 2009 Quest.)

Directed by Congress to come up with the new wording, the Equal Opportunity Employment Commission (EEOC) announced the proposed language changes in September 2009, and for 60 days sought public comment about the workability of the language. The agency then began evaluating comments and making revisions.

That process still continues. Maureen Fitzgerald, director of disability rights for the Washington D.C.-based Disability Policy Collaboration, explained that, up until spring of 2010, there wasn’t a sufficient number of commissioners to form a quorum on the EEOC, and thus to take action on the ADA regs.

Once the EEOC completes its work, the proposed wording must be sent to the Office of Management and Budget for review, and then run past other government agencies. The final approved regulation then can be published in the Federal Register.

EEOC Program Analyst Bronwen Andrea Okwesa confirmed via e-mail that “it is uncertain that a final ADA rule will be out by September [2010].”

Meanwhile, the EEOC has prepared a list of questions and answers about the ADA amendments that can be viewed at www.eeoc.gov/policy/docs/qanda_adaaa_nprm.html.

‘Landmark’ sidewalk decision

A court settlement proposed in California late in 2009 has nationwide implications for wheelchair users and governments charged with keeping their sidewalks in good repair.

The settlement was prompted by a class action lawsuit charging that miles of California sidewalks were in such bad shape (a violation of ADA regulations) that they couldn’t safely be used by people with visual impairments or who use wheelchairs, canes or walkers. Forced instead to walk or roll in the streets, many suffered injuries and some died.

The settlement, which has preliminary approval from the federal district court in Oakland, calls for the California Department of Transportation (Caltrans) to spend $1.1 billion over the next 30 years on sidewalk repairs (more than three times the $10 million a year it had previously budgeted for such work). At issue are some 2,500 miles of sidewalk, as well as pedestrian overpasses and underpasses, crosswalks and several hundred park-and-ride facilities that Caltrans owns.

Mary-Lee Kimber, a staff attorney with Disability Rights Advocates, a nonprofit law firm in Berkeley, called the settlement “landmark” in its potential effect on other municipalities and government agencies across the country. Final steps remaining before the proposed settlement is approved include review by the court and the U.S. Department of Justice. “DOJ doesn’t have to approve the settlement, but they could intervene if they so choose,” she noted. “We don’t anticipate that happening.”

Suing for the right to ski

The Tandemski in action

Martin Wallem, 40, has been increasingly affected by ALS since his diagnosis in July 2002, but he still enjoys downhill skiing with his family. Or at least he did until his adaptive ski organization advised it would no longer permit him to participate in its program.

Wallem, of Epping, N.H., had skied at the Mount Washington Resort in Bretton Woods, N.H., using a Tandemski, because he’s paralyzed except for the ability to move his eyes and grind his teeth. He’s on a ventilator full time, and communicates with an eyegaze communication device.

The Tandemski (made in France and rare in this country) is essentially an expensive lean-back chair on skis. Wallem is strapped in; then a “pilot” skier with boots in bindings on the backs of the skis guides the Tandemski, controlling its speed and direction.

Wallem skied the Bretton Woods resort in the Tandemski in March 2008, but when he attempted to return in December of that year, he was denied the right to ski. Bretton Woods Adaptive (an organization separate from Bretton Woods resort) cited safety and insurance reasons for the denial, and said because its adaptive skiing program has a very limited budget and relies on volunteers, it only could provide skiing lessons for people who could learn to ski, not the recreational experience (as a passenger rather than an active participant) that Wallem wanted.

The Disability Rights Center in Concord, on behalf of Wallem and his wife Cara, sued the owner of Bretton Woods, Bretton Woods Adaptive and Omni Hotels & Resorts that operates Mount Washington Resort. The suit contended the defendants had violated the ADA by abruptly electing to prohibit people on life support systems from participating in the program.

Court documents show that the matter was settled out of court with Bretton Woods and Omni. Disability Rights Center attorney James Fox said the rest of the matter could not be discussed unless it becomes part of the public record.

Cara Wallem said Martin plans to continue skiing at Bretton Woods in a Tandemski provided by another company, Adaptive Sports Partners of the North Country, which also will provide a pilot.

“Skiing, hiking, hunting and fishing were all a big part of Martin’s life before his illness,” his wife said. “He still pursues them all with adaptive equipment, and his biggest love is being able to do them with our 6-year-old son, Martin, Jr.”

The following is a sampling of U.S. Department of Justice (DOJ) actions in response to complaints filed by people with disabilities. (Because there are no “ADA Police,” enforcement of the rules occurs when a complaint is filed.)

Unwelcome service dog in market

In the Virgin Islands, a man with disabilities who uses a service dog complained that the owner/operators of World Fresh Market (doing business in the Virgin Islands as Pueblo) demanded he leave the premises because of the dog’s presence. In a settlement approved by a federal district court judge, Pueblo agreed to post a conspicuous notice reading, “Individuals with disabilities and their service animals are welcome at Pueblo.” The company also agreed to train all its employees in their obligations under the ADA.

Washington, D.C., homeless shelters

On average, 23 percent of homeless shelter residents in Washington, D.C., have physical disabilities. Following complaints about ADA violations at shelters, a settlement was reached requiring the development of a comprehensive plan that ensures equal access to shelter facilities and services for people with disabilities. While the plan is being developed, the District must enhance the accessibility of existing facilities.

Milwaukee World Festival

Complaints were made that the festival’s Marcus Amphitheater, a 23,000-seat outdoor concert facility, was inaccessible to people who use wheelchairs. During settlement discussions with DOJ, festival operators added several wheelchair and companion spaces in the amphitheater and modified all restrooms and concession areas to bring them into compliance with ADA standards.

Electronic readers in classrooms

DOJ reached agreements with colleges and universities in Arizona, New York, Ohio and Oregon following complaints about their use of the Amazon Kindle DX, with which students with disabilities can have text read aloud to them. Some students complained that they could not use the device’s menu and navigational controls, and thus didn’t know how to operate the Kindle DX, or even know which book they had selected. The DOJ settlements provide that the schools can’t use the Kindle DX — or any other electronic book readers — unless they’re fully accessible to the students who will be using them.

Mediation milestones

DOJ’s ADA Mediation Program is designed to bring complainants and respondents together to cooperatively work out their differences without costly legal battles. More than three-quarters of all ADA-related complaints received by DOJ are resolved through mediation.

Here are recent examples:

 

  • In Nevada, a man with ALS was unable to access an insurance company’s automated telephone directory because his speech muscles are paralyzed. After mediation, the company installed an e-mail system that permits people with speech disabilities to communicate with the organization via computer.
  • In Oklahoma, a wheelchair user complained that five convenience markets in one national chain had inaccessible entrances and parking spaces. Following mediation, the owner of the five franchises agreed to provide entrance ramps and accessible parking at all the markets.
  • In Illinois, a wheelchair user attending a family wedding reception at a restaurant was embarrassed that she had to be carried into and out of the restroom, which was inaccessible to her in her chair. After mediation, the restaurant paid her $1,000 and installed accessible paper towel dispensers, sinks and accessible toilet stalls with grab bars in both women’s and men’s restrooms.
  • At a concert in Oregon, a woman with a mobility disability was told to park her car in an accessible parking space near an accessible entrance. After she did so, the entrance was blocked by buses and she was forced to walk to an accessible entrance farther away. When she had a medical emergency in the concert hall and needed to reach her car quickly, security personnel refused to let her leave via the accessible entrance near her vehicle. Following mediation, the facility agreed to keep all accessible entrances open at all times; paid the complainant $1,000; trained all staff in ADA requirements; and modified its website to provide information about accessibility.

Most disability friendly city

Indianapolis was recognized as the national model of a disability friendly city for 2009 by the National Organization on Disability (NOD), in its eighth annual Accessible America Award competition (funded by a grant from AARP).

Downtown Indianapolis offers both bike and wheelchair/pedestrian paths

NOD based its honor in part on these Indianapolis features:

  • a Business Leadership Network that promotes employment of people with disabilities;
  • training programs for contractors regarding accessible building designs;
  • universally accessible features of the city’s new Cultural Trail (an eight-mile path through the cultural and arts districts);
  • partnerships with the Veterans Administration and disability-advocacy organizations that provide internships for students and adult jobseekers with disabilities;
  • all public buses are accessible, and
  • creation of a Mayor’s Advisory Council on Disability.

Part of the recognition includes a $25,000 check that Indianapolis Mayor Greg Ballard said will be used to support better access and inclusion for people with disabilities and seniors.

Other finalists in the competition were Berkeley, Calif., Cambridge, Mass., Houston, Tex., Irvine, Calif., Pasadena, Calif., Phoenix, Ariz., and Venice, Fla.

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