More than ten years after passage of the ADA, the struggle for the rights of Americans with disabilities goes on -- and faces new challenges
Enabling Equality: An Overview
In
only ten years, the Americans with Disabilities Act has become a part
of our national consciousness, leaving its indelible stamp on our institutions
and culture. It seems like it’s changed everything – from the
height of drinking fountains to the width of lavatory doors to the seating
arrangements in ballparks and movie theatres. Accessible parking places,
closed captioning, service dogs joining their companions in restaurants,
elevator numbers in Braille – the list goes on, and it’s probably
available in alternative formats. As intended when it was passed in 1990,
the ADA increasingly has brought people with disabilities into the mainstream
of American life: into restaurants and shopping malls, schools and places
of worship, and of course, the American workplace. No wonder it has been
called the equivalent of the Civil Rights Act for America’s 54 million
people with disabilities.
Although praise for the ADA is not universal – critics argue that its regulations unfairly burden business and the U.S. economy – few doubt its impact. "We’ve seen a dramatic impact from the ADA, especially in the employer areas," says David Hancox, Executive Director of the Metropolitan Center for Independent Living, a nonprofit agency which helps people with disabilities lead more self-directed lives.
In Minnesota, the federal law did not add much substantively beyond what was already present in the state Human Rights Act, notes Commissioner of Human Rights Janeen Rosas. "But it brought a much higher profile to the issues."
The high profile has persisted as court cases have won millions for individuals suing because their rights have been violated. Since July 1992 when Title I of the ADA, prohibiting discrimination in employment, became effective, the Equal Employment Opportunity Commission (EEOC) has obtained more than $300 million on behalf of more than 20,000 people through settlements, conciliation, mediation and litigation.
Some cases have resulted in sensational headlines:
A jury awarded $13 million in punitive damages along with $70,000 for emotional distress and back pay, to a custodian with a developmental disability who was fired by Showbiz Pizza Time Inc. (Chuck E Cheese). The EEOC claimed that a district manager fired the custodian because the company just did not employ "those type of people." The judge also ordered the company to give the custodian his job back. (The $13 million award was later reduced to $230,000 because of a statutory cap on damages.)
A jury found that a Wal-Mart stores’ hiring official had illegally asked a job applicant about his disability–an amputated arm–and then refused to hire him. The applicant was awarded $7,500 in compensatory damages and $150,000 in punitive damages.
When Campbell University terminated a physical education instructor because he had AIDS, the EEOC obtained an order for the University to continue paying the instructor’s health insurance benefits, pending a trial. The University later agreed to provide the instructor with continued employment, salary and benefits, plus $325,000 in additional compensation.
But such cases are rare. "It’s been interesting to note that of all the employment-related complaints that have been filed with the EEOC, 95 percent have been found in favor of the employer," notes Hancox, citing a survey by the American Bar Association (ABA).
The victory margin for employers is not only lopsided, it appears to be growing. The ABA found that employers prevailed in 91.6 percent of disability cases filed under Title 1 from 1992 to 1997, 94.4 percent in 1998, and 95.7 percent in 1999.
A recent Harris Poll also offers some sobering news on the progress of individuals with disabilities in overcoming barriers in employment and elsewhere. The July 2000 poll found persistent gaps between people with disabilities and those without.
Only 32 percent of individuals with disabilities of working age (18-62) have full or part-time jobs, vs. 81 percent of people who do not have a disability. And more than two-thirds of those who are not employed say they would rather be working.
People with disabilities are almost three times as likely as those without disabilities to live in households with total incomes of $15,000 or less.
Those with disabilities are also almost three times as likely as people without disabilities to say that inadequate transportation is a problem.
There are some encouraging trends. Of those who say they are able to work despite their disability, 56 percent are working, up from 47 percent in 1994. And among young people (18-29), the employment picture is even more promising: 57 percent of young people with disabilities are working, compared to 72 percent of those who do not have disabilities, a gap of 15 percent.
Yet in most major areas of life – from education to socializing with friends to going out to restaurants and movies – the gaps are glaringly persistent. Overall, when asked how satisfied they are with "life in general," 67 percent of non-disabled Americans claim to be very satisfied, compared to only 33 percent of Americans with disabilities.
No one thought the ADA would fix everything. But why do the large gaps remain?
"Transportation is a major problem, and Minnesota has a lot of work to do improving transportation for people with disabilities," says Anne Henry, an attorney with the Minnesota Disability Law Center. You can’t hold a job–or enjoy a movie at a theater–if you can’t get there. "Metro Mobility and accessible buses have their problems, but at least there is some accessible public transportation in the Twin Cities. There are areas in the state where there is none."
Another problem for a disabled person who wants to work is the fear of loss of medical assistance benefits. In the past, finding a job meant losing medical assistance benefits, and even if the employer had a better than average health plan, it probably would not provide the personal care assistance that some people with disabilities need. That barrier was eased in 1999, when Congress passed legislation to enable people to keep their Medicare or Medicaid benefits while holding down jobs, and Minnesota followed with similar legislation.
"It’s a win-win situation for Minnesota because people with disabilities do better. And also, we need these folks in the work place," says Henry. "But getting the word out (about the change in the law) still needs to be done."
Yet another barrier remains: by joining the workforce, many individuals with disabilities suddenly will lose their social security benefits. "We’d like to see a phase out of benefits while people get back to work, so people can readjust their budgets – rather than this cliff, where all of a sudden in one month, social security says that’s it," says Henry.
Yet for some people with disabilities, the biggest barriers to work and increased participation in society may not be physical or financial, but psychological.
"A lot of the barriers that remain are those that are erected by fear and stereotypes," says Laurie Vasichek, a senior trial attorney for the EEOC. "We’ve come a long way in convincing employers that reasonable accommodation does not have to be an expensive proposition. But we still encounter a lot of fear on their part of bringing in someone with a disability–what if they have a seizure, what if they take a lot of sick leave, what are they going to do to my health costs. It’s this enormous fear of the unknown."
Hancox shares the view that attitudes are the most formidable obstacles. "I think society as a whole still operates with a set of preconceived notions and perceptions about people with disabilities that just aren’t accurate," says Hancox. "They see people with disabilities as helpless and needy and limited in their abilities to contribute. There is a tendency to dumb things down for people with disabilities, because we have lowered expectations."
These lowered expectations are especially damaging to young people with disabilities, argues Hancox. His center operates a program to help young people with disabilities prepare for a smooth transition from high school to college, vocational school, a job or some other setting. "One of the things we are finding is that a lot of kids with disabilities don’t have a clear vision of life after high school. Because nobody has ever really presented that to them–no one has told them that they can have a meaningful career."
Social service agencies tend to view people with disabilities primarily in medical terms–as people who are "sick or injured" and need to be fixed, Hancox argues. "Most people with disabilities don’t have a desire or need to be fixed," he says. "What they need are accommodations and services that will allow them to reach their full potential."
Too often, he believes, they get sympathy – or worse – instead.
He remembers being in a shopping mall with a friend who was paralyzed from the neck down, except for the ability to move one finger on his left hand, which he used to operate his wheelchair. That day a woman who neither had met before suddenly walked up to them. She said she had seen him coming down the concourse, and she felt how terrible his life must be, how difficult it must be, and how sad was the condition he was in. "‘You know,’" Hancox recalls her telling his friend, "I think I’d rather be dead than be you."
"I just stood there with my mouth agape," Hancox remembers. "I just couldn’t believe it."
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This material previously appeared in the Fall 2000 issue of the Minnesota Department of Human Rights' newsletter,The Rights Stuff. |
