Experts address the ADA’s relevance to modern life, thirty years after its passage.
Thirty years have passed since a group of protestors gathered at the base of the U.S. Capitol Building in support of the Americans with Disabilities Act (ADA), the first major piece of civil rights legislation in the world for people with disabilities. At the protest, members of the group set aside their assistive devices and crawled up the 78 steps to the building to demonstrate the inaccessibility of public spaces.
A few months later, President Bush signed the ADA into law on July 26, 1990. The ADA’s stated purpose was to guarantee equal opportunity for people with disabilities. Three decades after its passage, is the ADA still an effective tool?
The ADA consists of five titles that prohibit discrimination in public arenas such as school, the workplace, and transportation, as well as publicly accessible private places. Since its passage, millions of dollars have been spent to make public spaces more accessible to individuals with disabilities. But today, Americans conduct increasing amounts of their daily activities in cyberspace rather than in physical public spaces, especially during the coronavirus pandemic.
Many websites, however, remain inaccessible to people with visual or mobility impairments, and distance learning disproportionately disrupts the learning of students with disabilities. Beyond technology, other aspects of the pandemic have seemed to impact people with disabilities unfairly, such as how some state plans for rationing medical resources gave lower priority to patients on the basis of their disability.
In addition to facing the pandemic, Americans across the country have been protesting police violence. Studies reportedly show that one-third to one-half of all people killed by U.S. police have a disability, and many police departments lack adequate training on how best to interact with people with disabilities. Advocates argue that the intersection of racism and ableism can make police encounters more dangerous for Black people with disabilities.
On the eve of the thirtieth anniversary of the enactment of the ADA, this Saturday Seminar explores how this landmark legislation applies to current issues affecting people with disabilities, many of which differ from the obstacles faced by the protestors who crawled up the Capitol Building steps three decades ago.
- In an article published in the American Bar Association Journal of Labor and Employment Law, Kevin J. Haskins of Preti Flaherty discusses how the proliferation of wearable health-tracking technology in the workplace could implicate the ADA. Haskins warns that employers who introduce wearables to the workplace may be violating the ADA because the broad range of medical data that wearables record could qualify as an unnecessary medical examination or disability-related inquiry under the ADA. Haskins suggests that employers create only narrowly tailored wearables programs, such as using technology for employee wellness or safety-sensitive positions.
- Internet accessibility for millions of Americans with disabilities is “one of the most pressing civil rights challenges of the twenty-first century,” according to Blake Reid of the University of Colorado Law School. In an article published in the Indiana Law Journal, he explains that the current approach to internet accessibility treats the web as a place that users visit, subjecting it to the places of public accommodation requirements of Title III of the ADA. But this approach, Reid argues, limits the application of Title III to the user’s experience on websites. Reid suggests supplementing the Title III “place” approach with other disability and consumer protection laws to cover non-web internet applications, such as social media content, video streaming, gaming, and instant messaging.
- In an article published in the The Yale Law Journal, the University of Michigan Law School’s Samuel R. Bagenstos explains that some hospital and state agency plans to allocate scarce medical resources explicitly discriminate against people with disabilities and violate the ADA. Title II of the ADA prohibits discrimination against “qualified individuals with disabilities.” Bagestos writes that the only plausible defense of discriminatory triage plans is that disabilities “disqualify” patients from receiving scarce treatment because, hypothetically, patients with disabilities might benefit less from treatment. But trying to maximize quality of life in a triage situation by excluding patients with disabilities is a biased value judgment, he argues. Bagenstos concludes that defining patients as “unqualified” based on their disability alone, and not its impact on treatment, is exactly the type of discrimination the ADA is designed to prohibit.
- The ADA requires employers to make reasonable accommodations for employees with medical conditions that could make contracting the current coronavirus more risky, explain Maxine Neuhauser, Susan Gross Sholinksky, and Lauri F. Rasnick of Epstein Becker & Green. In an article published in The National Law Review, they discuss a new guidance from the U.S. Equal Employment Opportunity Commission that clarifies how the ADA applies to employees returning to work amid the pandemic. Employers can only exclude employees from returning to work if their medical condition “would pose a direct threat to health or safety.” Neuhauser, Sholinksky, and Rasnick write that employers are generally ADA compliant if they follow guidelines from the Centers for Disease Control and Prevention and other public health agencies.
Criminal Justice Reform
- “Recognizing the usefulness of Title II abrogation cases to qualified immunity contexts would have tremendous consequences,” Derek Warden argues in an article in the Civil Rights Law Journal, referring to the potential of Title II of the ADA to strip away immunity and subject public individuals such as police officers to lawsuits. He writes that harnessing the power of Title II abrogation cases would allow litigants to draw on a broader field of facts to demonstrate that a constitutional right was established. In addition, Warden argues, it would permit “the principles of the ADA to protect individuals even where they are not protected under the ADA.”
- ADA regulations contain an “integration mandate” that requires public entities, such as prisons, to administer services, programs, and activities in integrated settings appropriate to the needs of individuals with disabilities. In an article published in the Georgetown Journal on Poverty Law and Policy, University of Connecticut School of Law’s Jamelia Morgan notes the challenges of advocating mandated inclusion of incarcerated people with disabilities in prisons not designed to protect civil and human rights. She calls this the “paradox of inclusion.” In addition, she discusses the integration mandate in light of the U.S. Supreme Court’s Olmstead v. L.C. decision. In Olmstead, the Court held that “unjustified institutionalization” of individuals with disabilities is discriminatory under the ADA. Morgan argues that “Olmstead, and the ADA more broadly, challenge blanket policies, which drive standard operating procedures and prioritize uniformity over the individual needs and concerns of the people incarcerated.”
- “We now better appreciate that people of color with disabilities can experience complex forms of discrimination distinct from those experienced by either people of color or people with disabilities more broadly,” writes Alice Abrokwa of the National Center for Youth Law. In an article published in the Michigan Journal of Race and Law, she explains that a clear legal path does not exist yet for plaintiffs who experience discrimination based on a combination of their race and disability. In cases based on claims under the ADA, courts require plaintiffs to show that the discrimination would not have occurred absent their disability. Abrokwa argues that intersectional plaintiffs should be able to meet this standard by showing that the discrimination would not have occurred but for the “unique product of their race and disability together.”
Each week, members of The Regulatory Review staff write the Saturday Seminar, a special feature we publish that highlights important and recent papers, reports, or commentary surrounding a focused regulatory topic. For previous seminar features, please visit our Saturday Seminar webpage.