Righting the ADA

After 15 years, time for a course correction

by Christina Medvescek on July 1, 2005 - 1:37pm

QUEST Vol. 12, No. 4

The Americans with Disabilities Act, designed to eliminate discrimination against people with disabilities, celebrates its 15th birthday this July with a track record as contradictory as a teenager’s mood.

On the one hand, the ADA has made solid progress in creating a more accessible environment, especially in the areas of public accommodation, transportation and telecommunications. Nonetheless, advocating for access remains a touchy business. And in the area of employment discrimination, there’s confusion, discouragement and a call for new legislation to put the ADA back on track.

Better accessibility

Since the ADA took effect, it’s become common to find modifications such as curb cuts, ramps, assistive listening devices at movie theaters, handicapped restroom stalls, braille signs on doors, etc.

In 1999 the U.S. Department of Justice launched Project Civic Access, which has worked with more than 100 state and local governments to bring governmental buildings and facilities into compliance with the ADA.

In addition, last July the U.S. Access Board released updated accessibility guidelines for new or altered facilities covered either by the ADA or the Architectural Barriers Act (ABA). Although the updated guidelines aren’t radically different, they’re easier to use, harmonize with the guidelines of model building codes and industry standards, and apply the same requirements to both ADA and ABA facilities.

In a significant victory for accessibility in May, the U.S. Supreme Court upheld the right of people with disabilities to sue state governments over inaccessible courthouses. The case, Tennessee v. Lane and Jones, involved a criminal defendant with a mobility impairment (George Lane) who refused to crawl up the steps to attend his court hearing, and a court reporter with a disability (Beverly Jones) who also couldn’t get to the courtrooms to work.

Tennessee claimed it was protected by the 11th Amendment of the U.S. Constitution, which says states can’t be sued for monetary damages in federal court. However, the Supreme Court said this case trumped the 11th Amendment because it involved "the enforcement of a variety of basic rights, including the right of access to the courts."

Mixed messages

But in December, a federal judge in California took a harsher approach toward accessibility lawsuits, telling Jarek Molski he must have judicial permission to file any more ADA lawsuits against local businesses. Molski, who uses a wheelchair because of injuries received in a motorcycle accident, has filed some 400 suits since 1998 claiming injuries due to businesses’ lack of ADA compliance, such as grab bars and ramps. The ruling was issued after Molski filed three suits claiming identical injuries on the same day at three businesses.

Molski’s actions have highlighted the delicate position of many disability advocates who try to enforce their ADA civil rights.

"I feel somewhat caught in the middle," admits John Lee, of San Luis Obispo, Calif., who has limb-girdle muscular dystrophy and has been locally active in promoting business accessibility.

Businesses have had 15 years to comply with ADA requirements, he notes. "The bottom line is if you’re not in compliance, this is the law and here are the consequences." Those consequences can include lawsuits, court orders to comply and, under California law, monetary penalties.

But he also sees the angry, distrustful public backlash created by lawsuits.

"What’s the cost for people with disabilities? How do we bring about these improvements in a way that makes people want to do it, and aren’t just compelled to do it?"

Employment battles

There’s been a sharp decline in the employment rate of working-age adults with disabilities since the passage of the ADA — exactly the opposite of the law’s intent.

In 1989, the U.S. Bureau of Labor Statistics reported that 44 percent of working-age men with disabilities were employed; by 2000 that number had dropped to 33.1 percent. The employment rate of working-age women with disabilities dropped from 37.5 percent to 32.6 percent. By comparison, the employment rate for men without disabilities dropped less than a percentage point over the decade, and increased slightly for women without disabilities.

Does this mean the ADA actually has hurt employment of people with disabilities? Yes, says researcher Thomas DeLeire in a 2000 article in the Journal of Human Resources. Fear of litigation and the cost of accommodations have had a chilling effect on employers.

Not necessarily so, say others, including researchers Douglas Kruse and Lisa Schur. The statistics are misleading, they claim in a 2003 journal article. If you eliminate the number of people with disabilities who say they’re not able to work at all, then the employment rate for working-age people with disabilities actually has risen since passage of the ADA.

Even if people are working, the ADA may not be helping. In 2000, the American Bar Association noted that employers won more than 95 percent of ADA cases filed in federal courts, and 85 percent of cases handled by the Equal Employment Opportunity Commission.

The question of who actually has a disability is another sticking point.

In recent years, federal court rulings have denied ADA protection to people whose disabilities can be "mitigated or corrected" by medication or assistive devices, such as epilepsy medication or eyeglasses. This has led to some controversial rulings, such as a case involving a Wal-Mart pharmacist with diabetes who was fired because he closed the pharmacy at noon to eat and inject insulin (Orr v. Wal-Mart, 2002). The courts ruled the pharmacist wasn’t "disabled" because he could mitigate his disease with insulin.

"So what you have is an employer who can actually interfere with your ability to mitigate the disability, and then fire you and go into court and argue that you don’t have a disability because you can mitigate it," Julie Carroll said in 2003. Carroll is an attorney with the National Council on Disability (NCD), an independent federal agency that advises the president and Congress.

Righting the ADA

"The courts are retreating from some of the core principles of the ADA," charges the NCD in a report called "Righting the ADA," sent to President Bush in December. NCD wants Congress to enact new legislation — an ADA Restoration Act — that will reestablish and clarify these core principles. It’s working toward this end with the Disability Bipartisan Caucus of the U.S. House of Representatives.

Like a boat blown off course or tipped on its side — or a wayward teenager — "the ADA just needs to be righted," the NCD says. After 15 years on the books, it remains to be seen whether the landmark law will achieve its goals of opportunity, participation, independent living and economic self-sufficiency for people with disabilities.

A victory — followed by a long wait

Marilyn Kurutz sits in her wheelchair in the stuffy lobby of the Duquesne, Pa., City Hall, squinting at a fuzzy image on a small black-and-white TV set. She’s watching the City Council meeting taking place two-and-a-half flights above her.

"Phil," she shouts into a microphone at Mayor Phil Krivacek. "I can’t hear you!" The mayor speaks more loudly into his microphone and Kurutz sighs loudly in frustration.

Marilyn Kurutz
Marilyn Kurutz attends City Council meetings via TV monitor.

For almost two years, since she was elected president of the volunteer Duquesne City Crime Watch, Kurutz has been trying to attend a City Council meeting in person, "to know what’s going on in the city."

Above the TV monitor is a lengthy sign explaining why she’s sitting in the lobby:

"The Mayor and Council of the City of Duquesne are in the process of finding an alternative meeting site or making the existing council chambers wheelchair-accessible… You may participate in council meetings or other public sessions by utilizing the microphone and letting the Mayor and council know you would like to address them during the meeting period."

The sign was put up in November 2003 as part of a mediation agreement between Kurutz and the City of Duquesne ("du-KANE"), settling her ADA complaint about the lack of access to City Hall. Kurutz, 55, has adult-onset mitochondrial myopathy.

The rest of the mediation agreement — that the city would move the council meetings to an accessible location or renovate the building — was supposed to have been enacted by January 2005. But renovation was found to be expensive and a hoped-for federal grant didn’t come through because the city was late in its application.

The mayor and council have steadfastly refused to move their meetings to nearby accessible buildings because "if we forget something we have to hold up the meeting until we go get what we forgot," Krivacek explained to Quest.

Duquesne, a former steel mill town of 1.8 square miles and 6,800 citizens, is typical of small towns across America that have old, inaccessible government buildings and ravaged economies that make it difficult to upgrade facilities. Although the ADA applies in these areas, and citizens with disabilities might win decisive victories in violation cases, the reality is that change can be frustratingly slow to come.

On April 29, Kurutz was told by the Department of Justice (DOJ), which oversaw the 2003 Duquesne mediation, that it plans to investigate the city for its failure to comply. DOJ didn’t give a timeline for an investigation. (DOJ didn’t return calls from Quest.)

Kurutz, who received the 2005 MDA Personal Achievement Award for Pennsylvania, wishes the council simply would move council meetings to the accessible high school next door.

"As a joke, they call me the ‘downstairs mayor,’" she says of her piped-in messages from the lobby, adding that she sometimes feels "there might be something personal in it."

The city did provide an accessible voting location when she requested it.

Krivacek says he’s glad Kurutz raised the issue of accessibility in Duquesne, emphasizing, "If there’s a need, we have to take care of it."

He says he’s "90 percent sure" the city soon will be awarded a Community Development Block Grant from Allegheny County to cover installation of an elevator, widen doors and renovate the women’s bathroom. Although he doesn’t know when — or if — the grant will come through, he’s hopeful renovation might start by the end of summer.

Despite the snail’s pace of change, Kurutz is glad she pressed the ADA complaint, and encourages others to do the same to enforce their civil rights.

"The ADA needs to be more firm," she said. "I know we’re a very small city and it’s not affecting an extreme amount of people, but every person counts.

"Somehow, someway I will be where the council is sitting," she vowed, adding, "I might even be on the council one day."

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