The Americans with Disabilities Act—Time to Measure the Efficacy of this Legislation
In 1973, Congress took a significant step to protect people with disabilities by amending the Rehabilitation Act. By the late 1980s, it was clear that this amendment, specifically § 504, fell short of creating comprehensive civil rights protection for people with disabilities because it only required the federal government and federally funded entities to make jobs, services, programs, and facilities accessible. After extensive debate and hearings, Congress made a monumental stride in 1990 toward eradicating discrimination against people with disabilities. The Americans with Disabilities Act (ADA) of 1990 gives broad civil rights protection to all people with disabilities seeking employment and access to programs, services, and facilities in both the public and private sectors.
Because the ADA is comprehensive, its implementation has been challenging and its validity is being challenged. Disagreement over how to define a disability has thrown the ADA into conflict with existing laws, such as the Social Security Act, which provides financial entitlements for people who are unable to work. The ADA’s applicability to state and local governments has provoked countless attacks on its constitutionality and charges that it interferes with state functions. Finally, public misunderstanding over who has a disability and what government and businesses need to do for them has created skepticism about the law’s rationality.
The future of the ADA and the civil rights of people with disabilities in the United States depends on a clear definition of disability, one recognizing that people with disabilities are a constitutionally protected class and clarifying the federal government’s authority to mandate ADA requirements. Underlying these legal barriers is also the need for better outreach so that private and public entities understand that proactive compliance with the ADA generates fair and cost-effective access for people with disabilities. This article discusses recent attacks on the ADA and the ramifications for the civil rights of people with disabilities.
THE THRESHOLD CHALLENGE DEFINING "DISABILITY"
To be protected by the ADA, a person must be able to prove that they have or had a physical or mental impairment that qualifies as a disability. This threshold challenge is problematic because the courts have defined disability more narrowly than lawmakers intended and without regard for how federal agencies charged with enforcing the ADA, such as the Equal Employment Opportunity Commission (EEOC), define it.
Two of the most problematic areas for defining disability have been around how medications can mitigate the limitations of an impairment and the definition of disability the Social Security Administration uses. When Congress enacted the ADA, it found that there were 43 million Americans with one or more physical impairments.1 More recently, the National Organization of Disability counted 54 million men, women, and children with disabilities.2 Yet, the body of law created around defining disability for purposes of protection under the ADA clearly indicates that many of these millions of individuals will not enjoy the protections of the ADA.3
The United States Supreme Court has both broadened and narrowed the definition of disability. The Supreme Court in Bragdon v Abbott4 was an expansive yet proper ruling when it determined that an asymptomatic HIV-infected patient is an individual with a disability because the plaintiff in this case was substantially limited in her ability to procreate, which the court found to be a major life activity.
However, in more recent rulings, Sutton v United Air Lines, Murphy v United Parcel Service, and Albertsons Inc v Kirkingburg,5 the Supreme Court was less liberal with the definition. The Supreme Court ruled in each case that an ADA plaintiff’s impairment is to be evaluated in its mitigated state when assessing whether the impairment substantially limits a major life activity and is, thus, a disability covered by the ADA.
In addition to creating a more conservative definition of disability, these Supreme Court rulings also rejected a 1993 EEOC guidance, which stated that courts must consider the person’s impairment in its unmitigated state to determine if they have a physical or mental impairment that limits a major life activity.
In Bragdon v Abbott, Sidney Abbott, a woman living with HIV, brought an ADA discrimination claim against her dentist for refusing to treat her in his office. The Supreme Court held that HIV is a disability under the ADA, even when the infection is still at an asymptomatic stage because the HIV virus affects the body at the onset of the infection. The Supreme Court found that Abbott’s HIV infection was a physical impairment because it limited her in the major life activity of procreation.
The Bragdon ruling has been cited in several cases, including the Sixth Circuit Court of Appeals, in an attempt to further expand the definition of disability. The Sixth Circuit did so when, in Cehrs v Northeast Ohio Alzheimer’s Research Center,6 it ruled that a woman’s severe psoriasis constituted a disability even in its dormant stages. The court determined that the medication Cehrs took had physiological effects that substantially limited several of her major life activities.
But when the Supreme Court ruled in Sutton, Murphy, and Albertsons Inc, that persons with medically controlled impairments do not have a disability, it sent the message that anyone who uses mitigating measures is not covered by the ADA. This interpretation may force out of courtroom discussion any consideration of how medications themselves affect major life activities.
For example, people with diabetes who must administer insulin shots at work and who require breaks for health maintenance now have no legal mechanism to pursue their right to workplace accommodations. The Supreme Court did, however, recognize that some individuals may have more complex disabilities that medication may not completely mitigate. These individuals may still have disabilities recognized under the ADA.
The second major problematic area for the definition of disability under the ADA is the fact that many people who make ADA claims also seek Social Security benefits when they find themselves out of a job because the employer has discriminated against them. To receive Social Security benefits, a person must state that they are unable to work. To make an ADA claim, a person must state that they are able to work.
When Congress enacted the ADA, it did not discuss the interplay between the act and the Social Security disability program. As a result, the nation’s two major disability policies, which are grounded on a different set of assumptions about the nature of disability, deal with the issue in different ways. The Social Security program reflects the older view of disability, which perceives the inability to work as an inevitable consequence of disability. This view exists alongside the more recent ADA approach, which focuses on how people can work if they overcome barriers to equal employment opportunities.
When courts face ADA claims in which the person has also sought Social Security benefits, many courts have found that the statements an individual makes in support of an application for benefits can be an absolute bar to a finding that the plaintiff is a qualified individual with a disability for ADA purposes. Other courts viewed these inconsistent statements differently and ruled just the opposite. The mere act of applying for Social Security benefits, they said, should not bar an individual with a disability from making a subsequent ADA claim.
The EEOC in February, 1997 adopted this latter position. In 1999, the United States Supreme Court resolved this issue with a unanimous decision stating that the receipt of Social Security disability benefits does not automatically bar an ADA suit.
In this case, Cleveland v Policy Management Systems Corp,7 an employee who had suffered a stroke and was unable to work applied for Social Security Disability Income (SSDI) in order to receive some income and medical benefits. After she recovered, her doctor determined she was able to work with accommodations. She returned to work and requested the necessary accommodations. Her employer, however, denied the request and terminated her employment. In the meantime, Social Security had denied her application because she was now able to work. She requested a reconsideration from Social Security. She also filed an ADA claim charging employment discrimination. But the lower court ruled that the application for Social Security benefits barred her ADA suit.
The Supreme Court vacated that ruling and held that the
pursuit and receipt of SSDI benefits does not automatically stop the recipient from pursuing an ADA claim, nor does the law erect a strong presumption against the recipient’s success under the ADA...To survive a defendant’s motion for summary judgment, she must explain why that SSDI contention is consistent with her ADA claim that she could ‘perform the essential functions’ of her previous job, at least with ‘reasonable accommodation.’8
In essence, the Supreme Court recognized that the qualification standards under Social Security and the ADA are different.
CONFLICTS BETWEEN THE ADA AND STATE GOVERNMENTS
A few state and local governments have been strident opponents of the ADA. First, they contend that Congress exceeded its authority when enacting this law, which directed them to accommodate persons with disabilities in employment, programs, services, and facility access. States claim that discrimination against persons with disabilities is not so pervasive and that they do not make up a constitutionally protected class. Beyond the constitutional challenges are questions about how ADA requirements affect state functions, such as the operation of state prisons and developing community-based programs.
This term, the United States Supreme Court is scheduled to review the constitutional question in Garrett v University of Alabama at Birmingham.9 Several appellate courts have already upheld such ADA suits against states, ruling that ADA is constitutionally appropriate legislation to remedy the history of pervasive discrimination against individuals with disabilities.10 However, the Sixth Circuit is subject to this latter rule, at least until Garrett. In Popovich v Cuyahoga County Court of Common Pleas, Domestic Relations Division, the Sixth Circuit Court of Appeals ruled that Congress exceeded its enforcement authority under the Fourteenth Amendment in applying the ADA to the states.11
As for the conflict between the ADA and state functions, the United States Supreme Court has handed down two rulings relating to the application of the ADA to how states administer programs, services and activities. First, in Pennsylvania Department of Corrections v Yeskey,12 the Supreme Court ruled that the ADA clearly protects prison inmates. The state challenged ADA coverage to state prisons alleging that the statutory language of the ADA was not an "unmistakably clear" expression of intent to "alter the usual constitutional balance between the states and the federal government."13
The state contended that because ultimate control over state prisons is a traditional and essential state function, the federal government cannot interfere with ADA requirements. In a unanimous 1998 decision, the Supreme Court stated that a plain reading of the statute demonstrates that the ADA extends to state prisons. Specifically, the Supreme Court found that state prisons fall squarely within the ADA’s definition of "public entity."14 It is important to note that the state did not make a timely constitutionality challenge in Yeskey so the United States Supreme Court did not look at that issue in this case.
Second, in Olmstead v LC,15 the Supreme Court addressed whether the ADA requires states to place individuals with disabilities in community-based settings when the programs require more appropriate treatment than traditional, segregated institutionalization. When Congress enacted the ADA, it listed its congressional findings of discrimination in the opening provisions of the act. This list of pervasive forms of discrimination included the isolation and segregation of people with disabilities.16
Shortly after the passage of the ADA, the Department of Justice issued regulations requiring state and local governments to administer their programs in the most integrated setting appropriate to the needs of individuals with disabilities.17 This regulatory requirement has become known as the "integration mandate" of the ADA.
In Olmstead, the Supreme Court found that the unwarranted institutionalization of people with disabilities is a form of discrimination that is actionable under the ADA.18 The plaintiffs in Olmstead, two women with mental retardation and mental illness, were patients at a state-operated hospital in Georgia. Although state treatment professionals for both women had deemed them ready for community-based placements, the state refused to provide them with such integrated treatment.
Both plaintiffs alleged that the state had unnecessarily confined them to a hospital rather than placing them in an integrated community-based setting and that this constituted unlawful discrimination.
The state argued that its decision not to place plaintiffs in a community-based setting was not because of their disability, but because the state lacked funding. The state further argued that discrimination comes from treating one class of people differently from another. The Supreme Court rejected both of these arguments. It specifically found that Congress clearly intended discrimination to include unnecessary institutionalization of individuals with disabilities.19
ADA’S TUMULTUOUS RELATIONSHIP WITH PRIVATE BUSINESS OWNERS
When the ADA was finally enacted and people with disabilities had a legal mechanism by which to exercise their right to mainstream access in both the public and private sector, not only were there state and local government opponents, but private business owners also shared a negative sentiment towards the application of this law. Predictions of dire consequence on businesses immediately came to light when business owners started to provide testimonials to the media that they were facing bankruptcy in order to comply with the ADA.
With this type of media attention, many business owners and representatives of business owners20 went directly to their congressmen to lobby for a repeal of the ADA, at least as it applied to them. The predictions and media attention to the expectation of financial ruin are unfortunate and not based in fact.
The ADA does not require "unduly burdensome" accommodations,21 and proactive compliance with the ADA can prevent financial hardship. State and local officials can assist in the proactive compliance and the media can be better educated. When a business owner who is building a new building or renovating an older building complies with the accessibility requirements of the ADA at the time of construction, there is a proportionate cost attached to incorporating the accessible features into the project.
However, if a business owner faces the risk and constructs or renovates a building that does not comply with ADA accessibility requirements, the cost of retrofitting a building to become accessible more than triples. Business owners can achieve proactive compliance by taking advantage of the unprecedential technical assistance programs available to educate them on the accessibility requirements. They can also hold the architects designing their buildings accountable for complying with the accessibility requirements.22
In some instances, business owners may not be aware that their building does not meet accessibility requirements because local building inspectors do not have the authority to review a building and certify that it complies with the ADA. In this case, state or local officials can play a role in ensuring proactive compliance by requesting the Department of Justice to certify that the state or local accessibility laws meet or exceed the requirements of the ADA.
Finally, the Department of Justice, the Equal Employment Opportunity Commission, and other federal agencies charged with enforcing the ADA should promote proactive messages for media coverage of the ADA. It is clear from many news accounts that journalists have a poor comprehension of the basic provisions of the statute. The federal agencies can undertake a proactive public educational media campaign regarding the fair and cost-effective provisions of the ADA.
FUTURE OF THE ADA
The future of the ADA is likely to see both further court decisions and legislative changes as the constitutional issues confront the United States Supreme Court and as business owners continue to lobby against the access requirements of the ADA. While the breadth and scope of the ADA may be in jeopardy, public support for the core principle of the ADA—that people with disabilities have a fundamental right to access the mainstream of American society—brings hope that some semblance of this civil rights act will remain in existence.
1. 42 USC 12101(a)(1).
2. American with Disabilities Act—Harris Poll Survey, March 1999, page 33.
3. 42 USC 12102(2). The ADA defines an individual with a disability as an individual who (1) has a physical or mental impairment which substantially limits one or more of the major life activities; (2) has a record of such an impairment; or (3) has been regarded as having such an impairment.
4. 118 S Ct 2196 (1998). Bragdon was the first major ADA case decided by the United States Supreme Court.
5. Sutton v United Air Lines, 119 S Ct 2139 (1999); Murphy v United Parcel Service, 119 S Ct 2133 (1999); Albertsons Inc v Kirkingburg, 119 S Ct 2162 (1999).
6. 155 F3d 775 (CA 6, 1998).
7. 119 S Ct 1597 (1999).
8. 119 S Ct at 1599-1600.
9. 193 F3d 1214 (CA 11, 1999) cert granted, 120 S Ct 1669 (US April 17, 2000) (No 99-1240).
10. Torres v Puerto Rico Tourism Co, 175 F3d 1, (CA 1, 1999); Muller v Costello, 187 F3d 298 (CA 2, 1999); Anderson v Department of Public Welfare, 1 F Supp 2d 456 (ED Pa 1998); Amos v Maryland Dept of Pub Safety & Correctional Servs, 205 F3d 687 (CA 4, 2000); Brown v North Carolina Div of Motor Vehicles, 166 F3d 698 (CA 4, 1999); Coolbaugh v State of Louisiana, 136 F3d 430 (CA 5, 1998); Crawford v Indiana Department of Corrections, 115 F3d 481 (CA 7, 1997); Clark v State of California, 123 F3d 1267 (CA 9, 1997); Martin v State of Kansas, 190 F3d 1120 (CA 10, 1999);
11. 2000 WL 1335555 (CA 6, Ohio).
12.Pennsylvania Department of Corrections v Yeskey, 524 US 206 (1998).
13. The Supreme Court would not address whether application of ADA to state prisons was constitutional exercise of Congress’s power under the Commerce Clause or under Fourteenth Amendment enforcement clause because these issues where not raised or considered at the lower court level.
14. Id. at 208.
15. 119 S Ct 2176 (1999), affirming in part and vacating in part 138 F3d 893 (CA 11, 1998).
16. 42 USC 12101(a)(1)-(9). For example, Congress explicitly noted within the findings that "historically, society has tended to isolate and segregate individuals with disabilities and...discrimination against individuals with disabilities continue[s] to be a serious and pervasive social problem..." Id. § 12101(a)(2). Congress also stated that "discrimination against individuals with disabilities persists in such critical areas as...institutionalization..." Id. § 12101(a)(3).
17. 42 USC 12132; 28 CFR 35.130(b)(1)(iv), 35.130(c), 35.130(d).
18. 119 S Ct at 2181.
19. In its 6-3 decision, the Supreme Court ruled that the ADA requires states to serve individuals with disabilities in community settings, rather than in segregated institutions, when three factors are present: (1) treatment professionals determine community placement is appropriate; (2) the person does not oppose community placement; and (3) the placement can be reasonably accommodating taking into account the resources available to the state and the needs of others who are receiving state-supported services. 119 S Ct at 2186.
20. National Federation of Independent Business.
21. 42 USC 12182(b)(2)(A)(iv), (v) & 42 USC 12183.
22. A 1998 consent decree resolved the Department of Justice’s lawsuit, US v Ellerbe Becket, 976 F Supp 1262, in which Ellerbe Becket, Inc., an architectural firm, was found to have violated the ADA by repeatedly designing new sports stadiums and arenas without comparable lines of sight for wheelchair seating locations. Ellerbe argued that the court should dismiss the case because architects are not covered by the ADA and because lines of sight over standing spectators are not required. The court disagreed with both of these arguments.