The Americans with Disabilities Act has been called the emancipation proclamation for people with disabilities, the greatest civil rights law for the disability community, and many other wonderful things. When it was signed into law in 1990, people in the disability community were talking about how great the ADA is, and still today, people are raving about this fantastic law. As a Disability Rights lawyer and as a 26 year old who is a part of the first generation to grow up with the ADA by my side, I have to say, the ADA is pretty awesome. It has been by my side when I wanted to get into a restaurant that was previously inaccessible, it has had my back when bus companies tried to refuse to let me ride because of my wheelchair, and it’s certainly helped with my career – after all, what’s a Disability Rights Attorney without a solid Disability Rights law?
But on the 24th anniversary of the ADA I have to say that the ADA is not enough.
I know many people agree with me on this point, but at the same time I have to listen to so many others tell me that I should just be grateful that the ADA exists at all. They tell me that 50 years ago everything was inaccessible and employers wouldn’t dream of hiring a disabled person like me (but let’s be serious, I’m a woman, so 50 years ago they wouldn’t have hired me anyway). They try to convince me to just be thankful for what I’ve been given.
But here’s the thing, I haven’t been given anything. Disability Rights activists were working their asses off for my rights long before I was born. They fought hard to get me curb cuts and accessible bathrooms. They protested so my friends could get sign language interpreters in hospitals and braille menus at restaurants. They stood united when Congress wanted to exclude people with HIV from protection under the ADA. But in working so hard to ensure that my generation of crips would grow up on a better playing field, they had to make some concessions.
So what didn’t we get in the ADA?
Well, we didn’t get a lot of things. We didn’t get the right to services and supports in our own home, we didn’t get punitive damages, and we certainly didn’t get enforcement.
Services and Supports
The ADA says employers cannot discriminate against people with disabilities in employment and that public entities and public accommodations must provide reasonable modifications to be accessible to people with disabilities. While this covers a lot of areas, the ADA doesn’t provide equal rights.
People without disabilities have the right to live where and how they choose, but people with disabilities who need assistance with activities of daily living like eating, showering, dressing, or remembering to take their medicine are forced into institutions simply because they need this assistance. Insurance will often only pay for people with disabilities to go into nursing facilities rather than paying for the assistance to be provided in the individual’s home, even though it is often cheaper to do so.
States provide the insurance for many people with disabilities for multiple reasons, but two big ones are that (1) people with disabilities tend to have low income, and (2) before the Affordable Care Act, insurance companies would not cover people with pre-existing conditions. This means that States are the ones forcing their own people into facilities. States decided that they’d rather warehouse disabled people in segregated facilities than allow them to live in the community where they could live very successfully with supports and services.
Of course, since the passing of the ADA the Supreme Court in the Olmstead decision ruled that states cannot unnecessarily warehouse people with disabilities in institutions. In fact, the Supreme Court stated that unjustified placement of people with disabilities in institutions is disability discrimination. The essential point of Olmstead is that people with disabilities should not have to give up their basic civil rights of living in the community just to receive the medical services they need.
However, this decision, as great as it is, did not solve the problem. Olmstead leaves plenty of room for people to continue to be forced into institutions if it would be a “fundamental alteration” to allow them to live in the community with supports and services.
States have created some programs that allow some people with disabilities to live in the community, but thousands upon thousands of Americans are still locked away in institutions.
Though you would think it’s a fundamental right for us to all live in the community, without a law to back that right up, people with disabilities are forced into institutions.
We need the ADA to spell out our fundamental right to live in the community. We need to amend the ADA to list community based supports and services as one of our rights and prohibit States from institutionalizing us against our will.
Punitive damages are meant to punish an entity for breaking the law. It’s basically a sum of money that the entity must pay simply because they decided they were above the law. The ADA doesn’t have that. So if you discriminate against me, I can sue you, and you will be told to stop discriminating against me, but you won’t be punished for all the discriminating you’ve already done. You just get away with it. Not only does this make you less likely to care about discrimination since there will be no repercussions, but when other businesses see that you weren’t punished, there is nothing motivating them to follow the law either.
Think about it this way: You see me slapping a guy in the face over and over and over again. Finally, a cop comes over and tells me to stop and to never hit him again. That’s it. No arrest, no fines, nothing. I am not punished whatsoever. I just have to agree to stop slapping this guy in the face.
Well, now you decide that you don’t like the freckles on that ginger’s face that comes to your coffee shop, so you slap him in the face over and over and over again because you know the worst that is going to happen is that someone will tell you to stop. You know there are no other repercussions, so, hey, why not? His freckly face deserves to be slapped.
Well, that’s the ADA for you.
Every time a person in a wheelchair rolls up to a store and cannot get in because it’s inaccessible, that’s a slap in the face. Every time a fast food restaurant refuses to take a Deaf person’s order because they write it down rather than verbalizing their order, that’s a slap in the face. Every time a person with a service animal is refused by a taxi driver because of their animal, that’s a slap in the face. But what happens to these businesses that slap us in the face? Well, when we sue them, the judge simply tells the businesses that they cannot slap us in the face anymore. That’s it. They pay their attorneys and go home. They don’t pay the people they’ve been slapping in the face. They are not fined for slapping all these people in the past. They just have to agree to not slap us anymore.
So what’s to stop them from slapping us again? They’ve learned that there is no consequence to their discrimination. What’s to stop the business next door from discriminating against us? They’ve also learned that there is no consequence.
In order for businesses to take the ADA and people with disabilities more seriously the ADA needs to have some bite. The ADA needs punitive damages to punish those who discriminate against us and discourage others from discriminating against us in the future.
Overall, for what the ADA does cover, it covers things well. Unfortunately, it doesn’t matter how much a law covers if no one is respecting or enforcing the law.
There are thousands of new businesses that open in the U.S. every year that are inaccessible, thus violating the ADA. Despite this, building inspectors approve of these businesses to open.
Every year people with disabilities file legitimate lawsuits under the ADA because they have experienced discrimination. Despite the validity of their suits, judges dismiss them because the judges do not understand the ADA and/or have their own biases against people with disabilities.
The rights of people with disabilities are violated every day, but many people either do not know their rights so they don’t report these violations or attempt to file a lawsuit. Those that do want to file a lawsuit have a hard time finding an attorney who will take their case because many lawyers are unfamiliar with the ADA or do not want to take ADA cases because there is often no money in it for them.
In order to the ADA to actually work people with disabilities need to know their rights and be willing to fight for them, lawyers need to take the cases, judges need to understand the law and interpret it correctly. But you know what would be even better? If we didn’t even need the lawsuits, if businesses would take it upon themselves to learn about the ADA and comply with it, after all, complying with the law is a part of doing business, and if people and entities stopped discriminating against people with disabilities in general. That would be better.
If the discrimination could just stop so we didn’t need the lawsuits, that’d be awesome. I say this as a Disability Rights attorney that would lose my career if the discrimination and lawsuits stopped. I’m fine with losing my career if it means my people are finally living, working, and enjoying life in the community just like everyone else. Unfortunately, I don’t see that happening.
We have a long road ahead of us, which is why on the 24th anniversary of the ADA I am asking you to fight for more. I’m asking you to not “just be thankful” for what you’ve been “given,” I’m asking you to remember that our rights weren’t just willingly given to us – they were fought for and they were fought against. There were many who did not want the ADA to come into existence and there are many now who simply pretend the ADA doesn’t exist. They pretend our rights don’t exist.
It’s a long road to equality and we’re not there yet.
Stephanie Woodward is a Disability Rights attorney and consultant. Her work focuses on disability rights laws including deinstitutionalization, access to healthcare, service animals and emotional support animals, and physical accessibility of public accommodations. She is currently Ms Wheelchair Florida 2014 and a member of ADAPT.
Check out an article about Stephanie’s recent experience encountering an inaccessible event held by the Florida Bar Association: http://www.floridabar.org/DIVCOM/JN/JNNews01.nsf/RSSFeed/0661FFCDBEB0DFFC85257C890046538A
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