My wheelchair ostensibly advertises my disability, so it is not ‘hidden.’ I am paralyzed from the neck down. I cannot move my hands or feet. The wheelchair is bulkier than most chairs, and as an attorney, my chair is inexplicably drawn toward the toes of opposing counsel. It’s an odd coincidence, really.
Using a wheelchair attracts funny questions and stereotypes:
Can you pop-a-wheelie?
“Yes.”
How do you drive without your hands?
“Have you seen Stranger Things? It’s like that — mind over matter – without a demogorgon.”
Do you know Billy Price? He uses a chair too. “Yes, I know Billy, not because of the chair, but because Billy is really, really popular. He has his own shoe line!”
This stereotype, that everyone in a wheelchair knows everyone else with a disability, is one stereotype I wish were true. It’s not; but imagine if it were…
The CDC reports that 61 million adults in the United States live with a disability, approximately 26% or one in four Americans. That is a lot of facebook friends! It’s a popular club, and its membership continues to increase in numbers.
The breath and diversity of people with disabilities is prodigious. Disabilities transcend gender, age, and race. In addition to disabilities concerning mobility, there are disabilities that affect cognition, hearing, vision, and undisclosed disabilities that affect activities of daily living (yes, you can join the club secretly too). People with disabilities announce their presence every once and a while, and it leads to truly remarkable accomplishments.
The Americans With Disabilities Act: a Triumph of Peaceful Protest
In one of the most well-known examples of rallying together, the American Coalition of Citizens with Disabilities (ACCD) organized a sit-in for civil rights in April of 1977.[1] The 1973 Rehabilitation Act had passed prohibiting discrimination in programs conducted by federal agencies against individuals with disabilities. However, more than three years after its enactment, the regulations for Section 504 of the Rehabilitation Act of 1973 had yet to be signed and implemented, which left the Rehabilitation Act unenforceable. Instead of being signed into law, the regulations were marked for review, and there were serious concerns the regulations would be watered down.
The ACCD staged a sit-in at the Federal offices of Health, Education, and Welfare across the country including offices in Atlanta, Boston, Chicago, Denver, Los Angeles, New York City, Philadelphia, and Seattle. People protested by sitting-in — quite visibly, loudly, and odiferously (imagine more than a hundred fifty protesters and 26 days without accessible bathrooms). After one of the greatest displays of solidarity against discrimination,[2] the regulations were finally signed, unchanged on April 28, 1977.
There are other honorable mentions – examples of people with disabilities coming together and showing up. The League of the Physically Handicapped organized in May of 1935 to protest discrimination by the Works Progress Administration (WPA). The WPA denied jobs to applicants with disabilities because their applications were stamped with a “PH”, which stood for “physically handicapped.[3]” A decision to ‘sit-in’ at WPA headquarters eventually led to the creation of 1,500 jobs for workers with disabilities.
In Washington State around the same time, concerned parents and friends of people with developmental disabilities[4] came together to form the Children’s Benevolent League in 1936. This League joined other local organizations and eventually became the Arc of the United States – an nationwide organization that advocates for people with developmental disabilities.[5] Since its inception, the organization has grown to establish hundreds of local chapters in states across the country as well as significant partnerships and a multimillion dollar budget — another remarkable accomplishment for a typically underestimated group.
After the passage of the Rehabilitation Act, the leaders of the disability rights movement and their allies created an advisory body to give guidance to government entities, formerly known as the National Council of the Handicapped, now called the National Council on Disability, (“NCD”). The NCD pushed for expansion of the Rehabilitation Act to cover public accommodations, which paved the way for the Americans With Disabilities Act (“the ADA”). In spite of bipartisan support for the new legislation in late 1988 and early 1989, the ADA stalled in Congress for over a year largely due to business interests’ lobbying efforts. Disability rights activists came together to stage a protest affectionately known as the “Capitol Crawl.”
Activists, many with physical disabilities, crawled up the hundred steps of the Capitol Building in protest. Leaving assistive devices such as crutches and wheelchairs at the bottom of the steps, activists made a memorable scene dragging their bodies up the steps by any means. Some historical accounts attribute the subsequent, expeditious approval of the ADA to the direct action of the activists.
This year marks the 30th anniversary of the ADA. The passage of the ADA marked a major milestone in the fight for civil rights of people with disabilities. People with disabilities banded together and forced Congress to pass legislation. The ADA allowed people with disabilities to enforce their civil rights within the public domain. The passage of ADA undeniably opened doors and opportunities for people with disabilities and started a new chapter in civil rights for people with disabilities.
Court victories improved the quality of life of people with his abilities. The Supreme Court’s Olmstead v. L.C. decision found that the unnecessary institutionalization of people with disabilities violates the ADA, thereby freeing many individuals with disabilities to live in the community rather than in institutions. 527 U.S. 581 (1999). The Supreme Court’s decision in Tennessee v. Lane, ensured physical access to that State’s courts improving access to justice for people with disabilities. 541 U.S. 509 (2004).
Without the ADA, it is unlikely we would enjoy much of the accessibility we have today (have you seen accessible buses? Cool, right?!). I wish I could say the ADA and the Civil Rights Act got married and ended all forms of discrimination, and their children went on to bring world peace. However, the arc of the moral universe is long, and the fight for civil rights is a marathon not a sprint.
The ADA Finds Itself in Trouble
After the passage of the ADA, defendants shifted the focus of disability rights cases to the definition of disability causing a teenage identity crisis for the ADA. The emphasis on defining disability put courts, rather unenviably, in the position of asking the question, “but, how disabled are you really?” Courts narrowly construed the definition of disability culminating in two unfavorable Supreme Court decisions. Sutton et al. v. United Airlines, Inc., 527 U.S. 471 (1999) (holding that mitigating factors must be considered when determining disabilities, e.g. if you can see with glasses, you are not disabled with regard to sight) and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) (holding Congress intended to create a demanding standard to meet the definition of “disabled” in the ADA). These decisions led to exclusion of many people with disabilities from the protection of the ADA.[6]
In 2004, the NCD recommended amending the Americans With Disabilities Act to the President and Congress in a report called “Righting the ADA.”[7] The report included examples of people that are excluded by the Supreme Court’s decision. As food for thought, medication can mitigate the effects of conditions such as epilepsy, diabetes, and living with cancer or HIV. Along with the NCD, a coalition of people with disabilities, businesses, and civil rights activists put pressure on Congress to amend the ADA to be broader and more inclusive.
In 2006, with bipartisan support, the ADA Restoration Act was introduced as a bill to Congress. Negotiations over the next two years led to passage of the bill (renamed the ADA Amendments Act of 2008) (the “ADAAA”). President George W. Bush signed the ADAAA on September 25, 2008, and it became effective on January 1, 2009. The ADAAA overturned the controversial Supreme Court decisions and reiterated Congress’s intent that the scope of the ADA be broad and inclusive.
There is a patchwork of regulations and rulemaking for the ADA and the ADAAA. Beginning in 1991, the Department of Justice (the “DOJ”) published its ADA title II and title III regulations including the 1991 ADA Accessibility Guidelines (1991 Standards). In 2010, the DOJ published final regulations revising the Department’s ADA regulations, including the adoption of updated ADA Standards for Accessible Design (2010 Standards) Implementing the revisions to the ADA contained in the ADA Amendments Act, the Equal Employment Opportunity Commission (the “EEOC”) published its final rule revising its title I regulations in 2011. The DOJ published its Notice of Proposed Rulemaking to amend its title II and title III ADA regulations in the Federal Register in 2014, a Final Rule incorporating the requirements of the ADA Amendments Act went into effect in 2016. Determining which and when regulations apply requires expertise, or you can ask anyone in a wheelchair, they know all the laws and regulations on reasonable accommodations — all of them.
The ADA: Its Impact
Thirty years after the passage of the ADA, there is some disappointment on its impact on employment.[8] In 2019, 19.3% of persons with a disability were employed while the employment-population ratio for persons without a disability was 66.3%.[9] The unemployment rate for persons with a disability continued to be about twice as high as the rate for those without a disability (around 7.3 percent compared to 3.5 percent of persons without a disability in 2019). Unemployed persons are those who did not have a job, were available for work, and were actively looking for a job. In addition, 30% of the workforce matches the ADA definition of a disability, and only 39% of those with a disability disclose that fact to an employer.[10] In other words, it is still likely that there is a stigma associated with having a disability that makes it more difficult to find a job and keep it. Then again, it is questionable whether legislation can change hearts and minds.
For me personally, the ADA has helped me with physical access and employment. When I moved to Washington a few years ago, I thought Seattle was trying to kill me. Cruising around in my power wheelchair, I would barrel down a steep sidewalk only to find no curb cut. In 2017, Seattle entered a settlement to fix the sidewalks (over the next 18 years). The ADA also found me a job. I met the named plaintiff in the Seattle sidewalk case through Washington Attorneys with Disabilities Association, the disability bar association. Plaintiff Reynoldson had become an attorney and was opening an office specializing in the enforcement of the ADA.
Although the ADA receives criticism, there is movement toward the lofty goals of universal access and employment equality. In recent years, there has been a sudden rise in title III ADA accessibility cases.
For some, this increase has been a cause of concern. On the other hand, there is an interesting alternative line of thought — that the ADA has been wildly underenforced for years. Developers and property owners have been on notice for 30 years and continue to be surprised when their new construction violates standards of the ADA. In 2019, the DOJ filed a lawsuit against a famously large developer and affiliated owners, developers and builders of 82 multifamily housing complexes containing more than 3,000 units across multiple states.[11] If developers were punished severely, they would follow existing standards.
The Future of the ADA: Can We Move beyond Places?
Historically, most accessibility lawsuits concern inaccessible physical public accommodations – inaccessible facilities such as hotels, retail stores, restaurants, and shopping centers. In recent years, the ADA has brought the fight for civil rights to the Internet. The number of website accessibility lawsuits has increased from 814 lawsuits filed in federal court in 2017, to about 2250 in both 2018 and 2019.[12] Plaintiffs with a disability bring suits because they cannot use websites when the sites are not coded to work with assistive technologies like screen-readers, voice dictation, and captioning for pictures and videos.
One issue raised by the application of the ADA to websites is whether the Internet is a “place of public accommodation.” A Florida court tried (and failed)[13] to limit “places” strictly to physical, brick-and mortar locations. In dicta, Judge Posner, on the Seventh Circuit, has interpreted “places” to include facilities “whether in physical space or in electronic space.”[14] A Goldilocks solution, in the Third, Sixth, Ninth, and Eleventh Circuit Courts of Appeals, requires a ‘nexus’ between websites and physical spaces, and this interpretation has largely gained acceptance. This interpretation is further reinforced by the Supreme Court’s denial of certiorari in Domino’s Pizza LLC v. Robles (2019).
A functional approach to determine when the ADA applies — asking whether a public accommodation for a given statutory category of service has provided meaningful access — might prove more effective than torturing the definition of place. A patchwork of cases, including Title II cases, and Department of Justice settlements have provided a standard that: websites, mobile apps, and web services must provide meaningful access to persons with disabilities so long as it provides goods and services within one of the twelve categories of public accommodations listed in the ADA contained in 42 U.S.C. §12181(7). Subsection 42 U.S.C. §12181(7) includes motion picture houses, office of an accountant or lawyer, and places of education among other entities (i.e. Netflix, TurboTax, LegalZoom, and online universities). It should not be surprising that people with disabilities want access the same online services as everyone else.
Tying suits to meaningful access to the services provided could be a way around difficult decisions, online only businesses, and the absence of agency guidelines. In 2010, the Department of Justice (the “DOJ”) issued advance notice of proposed rulemaking to establish accessibility standards for website compliance. The DOJ seemed to be moving toward accepting Web Content Accessibility Guidelines (WCAG), 2.0 as the standard for meaningful accessibility. However, under the Trump administration, the DOJ placed that rulemaking on the 2017 Inactive Actions list with a statement that the DOJ will “continue to assess whether specific technical standards are necessary and appropriate to assist covered entities with complying with the ADA.”
In the near future, rulemaking for the ADA is uncertain. Of course, I wish the ADA endures another 30 years — adapting to provide access to public accommodations for people with disabilities — helping the bend toward equality and justice. Alas, if wishes were horses, beggars (and profoundly paralyzed quadriplegics) would ride.
[1] For more on the 504 sit-in, Netflix has a special called, “Crip Camp,” which has entertaining, powerful, and personal narratives.
[2] Notably, the protest had support from other groups looking for recognition of their civil rights including: the Black Panthers, the Gay Men’s Butterfly Brigade, United Farm Workers, and Delancey Street.
[3]I digress in order to make note on the etymology of the word ‘handicapped.’ This portmanteau is the combination of the words ‘cap in hand,’ and refers to a need to beg for income. In light of a protest to work, the word is ironic and an example of how disability can be a social construct and ultimately misleading.
[4] There is a history of pejoration, semantic changing or a phenomenon coined a euphemism treadmill associated with people with developmental disabilities – we choose ‘person-first’ language here to emphasize that we are people first and not defined by characteristics such as disability, race, or sex.
[5] The Arc is another victim of the euphemism treadmill. For more on the euphemism treadmill, see the article: “The Game of the Name.” Available from: https://stevenpinker.com/files/pinker/files/1994_04_03_newyorktimes.pdf
[6] See 154 Cong. Rec. S8840 (daily ed. Sept. 16, 2008) (Statement of the Managers) (“Thus, some 18 years later we are faced with a situation in which physical or mental impairments that would previously have been found to constitute disabilities are not considered disabilities under the Supreme Court’s narrower standard” and “[t]he resulting court decisions contribute to a legal environment in which individuals must demonstrate an inappropriately high degree of functional limitation in order to be protected from discrimination under the ADA.”).
[7] https://ncd.gov/rawmedia_repository/b6fbb02a_34f3_4bfb_a048_3385cbb184f8.pdf
[8] https://dsq-sds.org/article/view/4927/4024 (“TWENTY-FIVE YEARS AFTER THE ADA: SITUATING DISABILITY IN AMERICA’S SYSTEM OF STRATIFICATION”)
[9] https://www.bls.gov/news.release/pdf/disabl.pdf
[10] https://www.williamgoren.com/blog/2020/06/08/disability-issues-statistics-disclosure/
[11] https://www.justice.gov/opa/pr/department-justice-files-lawsuit-alleging-disability-based-discrimination-owners-and
[12] https://www.adatitleiii.com/2020/04/the-curve-has-flattened-for-federal-website-accessibility-lawsuits/
[13] Access Now, Inc. v. Southwest Airlines Company, 227 F. Supp. 2d 1312 (S.D. Fla. 2002) rendered irrelevant by the requirements of Air Carrier Access Act to make primary websites of carriers accessible to individuals with disabilities; see also Haynes v Dunkin Donuts LLC, et al., No. 18-10373 (11th Cir. 2018).
[14] Doe v. Mutual of Omaha Insurance Company, 179 F.3d 557 (7th Cir. 1999).
Washington Attorneys with Disabilities Association 