Printer Friendly

On the Edge of Change.

July 26, 1999, marked the ninth anniversary of the Americans with Disabilities Act (ADA). The intent of the ADA was to remove discriminatory barriers that prevent people with disabilities from being employed and enjoying access to programs and services that people who are not disabled often take for granted. The ADA has done much to improve the lives of people with disabilities. For those of us who were involved with the passage of this bill, the day President Bush signed the ADA into law is a day we will long remember. Upon signing the ADA, the President remarked, "Let the shameful wall of exclusion finally come tumbling down. Every man, woman, and child with a disability can now pass through once-closed doors into a bright new era of equality, independence, and freedom." Changes brought about by the passage of the ADA and other laws such as the Fair Housing Act, Architectural Barriers Act, Section 504 of the Rehabilitation, and the Individuals with Disabilities Education Act (IDEA), have opened the doors and raised public awareness for people with disabilities.

WHAT THE LAW SAYS

To understand the protection and benefits provided by the ADA, it is important to understand that the intention of the ADA was to eliminate discrimination against people with a disability in the areas of employment, transportation, services provided by local and state governments, and by private businesses. The goal was to provide people with a disability a greater degree of independence and opportunities for integration into the community. The ADA has defined "an individual with a disability" with a three-part definition. People with a disability include: 1) a person with a physical or mental impairment that substantially limits one or more major life activities; 2) a person with a record of such a physical or mental impairment, or 3) a person who is regarded as having such an impairment.

There are several sections to the ADA which address various areas of one's life. Title I deals with employment. Title II protects access to public services. Title III protects against discrimination by private businesses, and Title IV requires that telecommunication services, such as telephone services be available to people with hearing and communication problems.

The law helps people with disabilities as consumers of a business service. Privately owned businesses are required to make readily achievable modifications so that their programs allow participation by all people, unless they can demonstrate that the cost of modifications is prohibitive. What is considered "readily achievable" must be decided on an individual basis and includes a number of variables. The ADA was carefully drafted with the intent of balancing the needs of the public and business community with the needs of people with disabilities. The rights of a person to use a service or facility is balanced by a "reasonable standard." The ADA takes into consideration the size of the business, its level of profit, and the cost of the modifications needed to make the program or service accessible.

On the other side of the coin, the Act also enables people with disabilities to be employed in business. Both public and private employers are prohibited from discriminating against people who are "qualified applicants" for a job. A qualified applicant is one who can satisfy the skill, education, and experience requirements of the job and who can perform the "essential functions" of the job with or without "reasonable accommodation."

The issue of what constitutes an essential function of a job and what is a reasonable accommodation has been the subject of great discussion and controversy. In order to avoid an unfair burden on the small business person, reasonable accommodation is balanced by an "undue hardship" and "direct threat" exceptions. An undue hardship enables the employer or business owner to show that the monetary cost or difficulty in providing the accommodation makes it impractical or cost-prohibitive. A direct threat requires there be objective evidence that a specific risk has been identified, and the risk poses a threat of substantial harm. The direct threat cannot be remote, speculative, or based on irrational fears. In order to claim the exception, an employer or business person must show that the harm is likely to occur.

A study by the Job Accommodation Network, a free technical assistance service sponsored by the President's Committee on Employment of People with Disabilities, found that the costs of most accommodations is around $200. These accommodations do not adversely affect most Americans and often allow a person with a disability to become productive, rather than remain in poverty and dependent on government assistance programs.

A "LANDMARK" YEAR

This is a pivotal year for the ADA. Five cases have been brought before the U.S. Supreme Court which will significantly affect the lives of people with disabilities. As this article goes to press, the Court handed down decisions in all but one of these cases. These outcomes will shape public policy in the months and years to come.

Three of the five cases addressed the definition of disability. At issue was whether a person who takes corrective measures such as glasses or medication can still be considered "disabled" under the ADA. Does the person continue to have a physical impairment that substantially limits a major life activity if his or her condition can be remedied with medication or other corrective measures? The Court did not decide the merit of these cases but only whether or not the plaintiffs have the right to be heard under the ADA. The three cases which involve this issue were:

* Sutton v. United Air Lines: Twin sisters with severe myopia were turned down for jobs as pilots. They satisfied all of the requirements of the job but were turned down because their uncorrected vision failed to meet United's standards even though with glasses they were able to meet the standards. The sisters argued that they are covered by the ADA.

The Court ruled that because their vision problem, with lenses, does not "substantially limit the major life activity of seeing," they are not covered.

* Murphy v. United Parcel Service, Inc.: A mechanic was fired from his job at UPS due to his high blood pressure.

The Court ruled that he is not covered by the ADA because he can control his blood pressure with medication.

* Kirkingburg v. Albertson's, Inc.: Kirkinburg is challenged by monocular vision as a result of severe amblyopia in one eye. He was a safe and responsible driver for Albertson's for 16 months. Following recovery from a non-related illness, he was required to obtain a medical certification that he was fit to return to work. The company doctor refused to certify him because of his amblyopia, stating that his vision problem failed to meet the requirements of the Department of Transportation.

The Court ruled that he is not covered under the ADA because he can see well with his other eye and therefore does not have a disability that substantially limits the major life activity of seeing.

WHAT DOES THIS MEAN FOR PEOPLE WHO HAVE DISABILITIES?

The Supreme Court rulings in these three cases are seen as victories for employers. Employers are now free to fire a person because of a disability and the fired employee cannot claim protection under the ADA if his disability can be mitigated with treatment. Due to this ruling, many advocates will start lobbying Congress to expand the protection of the ADA for people with disorders which can be controlled by drugs, treatments, or devices. The ruling may also create a disincentive for people who have disabilities to take corrective action, which may make them more capable and employable, but cause them to lose the protection given to them by the ADA.

The fourth case points out the need for significant changes to Social Security Disability benefit programs. In Cleveland v. Policy Management Systems Corp., a woman applied for Social Security Disability Insurance (SSDI) payments because she was unable to work following a stroke. When her health improved, she applied for a job and was turned down. The employer is claiming she was not a "qualified individual" under the ADA because she was receiving disability insurance. This case is significant in that it demonstrates the need for changes to the Social Security Insurance program for people with disabilities. Needed changes to SSDI regulations are being addressed in Congress at this time. While the purpose of the ADA was to increase employment among people with disabilities, the present SSDI regulations often act as a disincentive or a barrier to returning to work. The Court had not yet ruled on this case as of press time.

VICTORY FOR LIVING CHOICES

For some advocates, the fifth case, Olmstead v. L.C. and E.W. may be the most significant case to heard in this decade. It is being compared to Brown v. Board of Education in that it addresses the right of a person with mental retardation to receive services in a community-based setting when the individual's mental-health care providers indicate that community-based services are in the best interest. The state of Georgia claimed that the ADA does not include an integration requirement and that it does not have to serve L.C. and E.W. in the community when appropriate treatment is available in a state institution.

The court's decision on Olmstead v. L.C. and E.W. is considered a victory for people with disabilities. The Court ruled that segregating people with disabilities in institutions when they can be adequately served in the community is a violation of their civil rights and against the law. Up until now, states were free to decide whether or not to offer community-based services as an alternative to institutional care. Thanks to Olmstead v. L.C. and E.W., people who now reside in institutions who want to reside in the community are legally entitled to an appropriate community placement. The decision also stressed that the state could not inappropriately discharge individuals without adequate services in place. The Court rejected the state's argument that inadequate funding, not discrimination, accounted for institutionalization. The Court concluded that unnecessary segregation constitutes discrimination per se, which cannot be justified by lack of funding.

Once again, the balancing of the ADA against the cost of providing accommodations was an important point noted by the Court. The Court went on to say that a state would not have to provide a community-based service if the cost of the service would be unreasonable, given the demands of the state's mental-health budget. However, community-based services must be provided when the cost of care is similar to or less than in an institution, and if the person with a disability or his or her guardian chooses to be in the community and the person is not a danger. This judgment is a tremendous victory for advocates as well as the many people with mental illness and mental retardation who would benefit from being integrated into the mainstream of society.

OPEN DOORS TODAY WILL MAKE TOMORROW BRIGHTER

The ADA provides full and equal enjoyment of all places of public accommodations, which includes recreational and exercise facilities, restaurants, etc. Facilities and privately owned businesses can no longer exclude people who have disabilities from their program or refuse to make accommodations to enable access to the service or program. Thanks to the ADA, children with disabilities can partake in many of the experiences of everyday life and be better prepared for the future with access to schools, daycare, and recreational programs.

The ADA allows all citizens to enjoy the pleasures of staying in any hotel one chooses, attending movies, plays and other public performances, accessing public transportation, and achieving the goal of being employed and the economic independence that a job provides. While employers and the public are more accepting of the ADA, myths, and confusion still exists causing discrimination to continue. When people with disabilities are allowed access to the community and its services, education, and employment, all of society will benefit.

RELATED ARTICLE: The ADA Makes a Difference Among Generations

by Marilyn Wayland, PhD

My brother Gary, who has cerebral palsy, was born in 1937. In 1992, my son Jamie was born with cerebral palsy (their conditions are not genetically related). The opportunities for Jamie are dramatically different than they were for Gary--made possible in large part by the ADA and new advances in assistive technology.

Gary went to a separate school for children with disabilities (mostly "cripples" and "mongoloids" as they were called) on the other side of town. None of my brothers or sister ever visited there. He did, however, attend a parochial high school. Gary was able to type his assignments and ended up graduating with honors. What did his classmates who had also graduated with honors do? They went off to the University of Michigan, Harvard, or Marquette University. What did Gary do? Without the ability to be understood clearly and with a very slow typing speed, his marketability as an employee was lacking. This, coupled with the attitudes of employers at that time toward people with disabilities (most thought he was probably retarded), helped Gary end up selling newspapers on the corner.

He was determined to live independently, however, and he moved out of our house immediately after graduation into an apartment where his landlady proceeded to skim off his "welfare" checks. At age 42, after breaking a hip and being counseled by a hospital social worker, Gary chose to attend a Center for Independent Living program. Today he is living independently and managing his own life.

What kind of future does my son, Jamie, face? Born two years after the Americans with Disabilities Act of 1990, Jamie has the advantage of having the "teeth" of the law behind him. Title I of the ADA requires employers to provide reasonable workplace accommodations for employees with disabilities to perform essential job functions. Jamie should be given the opportunity to work in an accessible office with technology to allow him to perform as any other employee. Today, there are 17 million Americans of working age with disabilities and almost 70 percent of them are unemployed. In 2020, when Jamie is out of school, what will that percentage be? With legislative and policy changes, such as the Rehabilitation Act Amendments of 1998, that number should dramatically decrease.

For now, Jamie attends our local school and will be entering first grade. The ADA was the incentive for our school system to install elevators so the students and employees could access upper floors.

For his first year of school, Jamie could not go up to the library with his class because he uses a wheelchair. The school did provide appropriate accommodation by bringing assorted books downstairs to him, but that feeling of exclusion began very early. He is much happier now that he can go with his classmates upstairs and enjoy that experience.

What about recreational activities? My husband and I recently went to the movies and sat in one of the newly remodeled stadium-style theatres. The wheelchair spaces were on the lower level, directly in front of the screen, the worst seats in the house and totally inappropriate for persons with disabilities and their family, friends, or caregivers. The federal government is suing the owners of these new movie theatres, under Title III of the ADA.

While the laws have changed, peoples attitudes cannot be mandated. Frequent discrimination continues to be reported by persons with disabilities looking for jobs. We are making progress, though it is gradual. Jamie is in school and educating others on his abilities. The ADA will give him the opportunity for gainful employment, assistive technology will give him the physical ability, and in time, people will give him the acceptance.

Dr. Wayland is the Director of Research and Education, Rehabilitation, Post Acute and Senior Services at the Detroit Medical Center, Detroit, MI. She is also an Assistant Professor of Physical Medicine and Rehabilitation, Wayne State University School of Medicine, Detroit, MI.

Theresa Varnet, MSW, JD, is EP's regular Future Planning columnist and is a partner in the law firm of Spain, Spain & Varnet, PC, of Illinois and Massachusetts. She is a Master's level social worker and the parent of a daughter with tuberous sclerosis and mental retardation.
COPYRIGHT 1999 EP Global Communications, Inc.
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1999 Gale, Cengage Learning. All rights reserved.

Article Details
Printer friendly Cite/link Email Feedback
Title Annotation:overview of five Supreme Court cases concerning the Americans with Disabilities Act
Author:Varnet, Theresa
Publication:The Exceptional Parent
Geographic Code:1USA
Date:Aug 1, 1999
Words:2704
Previous Article:Coming to an Understanding: Can Parents and Professionals Learn to be More REALISTIC about a child 's disability?
Next Article:Reimbursement for Treatment of End-Stage Renal Disease.
Topics:


Related Articles
ADA.
Groups Want ADA Fixed.
Pausing to Reflect on The ADA After 10 Years.
Whither the ADA and Corrections?
Employers should address ADA requests on case by case basis. (A Public Service of Davidson Law Firm).
California high court endorses broad definition of 'disability'.
Supreme Court rules employer needn't rehire recovered drug user.

Terms of use | Privacy policy | Copyright © 2021 Farlex, Inc. | Feedback | For webmasters |