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Editorials


Legislation


Is the Americans with Disabilities Act (ADA) Working for You?

January 31, 2001
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ADA History

The Americans with Disabilities Act of 1990 (ADA) has been in existence for ten years. It has put forth a much-needed set of guidelines in regards to making "reasonable accommodations" for individuals with disabilities. The law provided a long overdue framework designed to finally bring justice to the large population of Americans with Disabilities. The plights of the disabled community have finally found a voice, or so it seemed.

Although the ADA has been in existence for over 10 years, very little substantial progress has been made towards independence from daily barriers, promised to individuals with disabilities under the ADA. This editorial will discuss the seemingly disorganized state of the ADA enforcement agencies and their practices. It will further discuss interpretation problems stemming from the vague language within the ADA; this vagueness, inevitably resulting in the lack of precedent setting court decisions. Finally, it will suggest ways in which those concerned with the ADA's state can make their concerns heard.

There is no question that the intention behind the Americans with Disabilities Act was one to bring about change for individuals living with disabilities. However, intentions alone rarely bring about substantial change. Change will only occur if intentions are pro-actively followed by a consistent effort to advocate the intent. This is clearly not the case when examining the ADA enforcement practices of the responsible government agencies. The enforcement is only carried out through a reactive process to individual complaints.

The Maze of ADA Enforcing Agencies

Under the ADA there are four primary enforcing agencies. The U.S. Department of Justice (DOJ) is responsible for settling disputes "through lawsuits and both formal and informal settlement agreements regarding; Title I: Employment practices by units of State and local government; Title II: Programs, services, and activities of State and local government; Title III: Public accommodations and commercial facilities." The Equal Employment Opportunity Commission (EEOC) handles complaints filed under Title I: Employment - private employers with 15 or more employees. The U.S. Department of Transportation (DOT) is responsible for handling complaints under Title III: Public accommodations - all facilities and programs. The Federal Communications Commission (FCC) is primarily responsible for complaints filed under Title IV: Telecommunications equipment and services. An additional entity, the Access Board, "is responsible for issuing guidelines to assist the Department of Justice and the Department of Transportation in establishing accessibility standards for newly constructed and altered facilities under the Americans with Disabilities Act (ADA)." With all of these agencies handling complaints and often times referring the complainant to the DOJ and vice versa, there is bound to be a lack of cohesion. A June 2000 report published by the National Council on Disability charges, "federal agencies…have yet to develop a cohesive, overall pan for ADA implementation and enforcement."

Furthermore, although policies, though inconsistent, are in place, the "enforcing" agencies have little knowledge of violations until they are brought to light through a complaint. It is not reasonable to expect every individual that has experienced a barrier to come forward with a complaint. It is therefore not reasonable to expect facilities to comply with a law only being enforced through scarce personal complaints.

To exemplify this statement, the Equal Employment Opportunity Commission (EEOC) reports that since the enforcement of Title I (Employment) began on July 26, 1992 through September 30, 2000, 141,810 complaints have been resolved under Title I of the ADA. At first glance it indeed appears as though the ADA is as effective as proposed. However, a closer look reveals that on average, only 17,700 complaints are resolved each year. To bring this into perspective, according to the 1990 Survey of Income and Program Participation (SIPP), "among the civilian, non-institutionalized population, 20,266,000 adults in their working years (18-64) reported a disability." Using a conservative estimate, if one quarter of those individuals of working age were actually employed, there is a resolution rate of less than 4/100 of one percent relative to the number of working individuals with disabilities.

Several scenarios may explain this low resolution rate. The first is that employers are indeed accommodating individuals with disabilities according to the provisions of the ADA, and therefore fewer individuals are making complaints. However, this may not be so, in which case, the following scenarios may provide appropriate explanation. Perhaps, working individuals with disabilities do not know how to file a complaint or furthermore do not know and understand their rights under Title I of the ADA. A more probable scenario is that individuals living with disabilities are afraid to work due to the barriers they expect to face in the workforce. Each scenario will drive this complaint/resolution statistic down. Either way, there is a very small resolution rate relative to the number of individuals with disabilities of working age. This rate supports the larger argument that individual complaints alone cannot lead to an effective enforcement of a law. Reactive enforcement will not allow individuals with disabilities to freely explore and experience everyday activities many non-disabled individuals take for granted.

It is often argued that just one individual cannot bring about significant change, unfortunately, the state of ADA enforcement only supports this rather pessimistic argument. While barriers are indeed being removed one-by-one, it would be more efficient if the ADA appointed an agency or agencies to periodically inspect facilities subject to be in compliance with the ADA. Without a pro-active enforcement plan, individuals with disabilities are still facing, and will continue to face, the very barriers the ADA proposed to eliminate. Individuals with disabilities are still struggling to find a voice among the enforcing agencies and courts.

"Disability" Defined

There is more to be said however, of the ADA's lack of effectiveness in its mission to remove barriers threatening the independence of individuals with disabilities. The ADA speaks in a very broad sense when defining individuals with disabilities. According to the U.S. Department of Justice ADA Home Page, "the term "disability" means, with respect to an individual - (A) A physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) A record of such an impairment; or (C) Being regarded as having such an impairment." This vague definition will only encourage each individual agency to apply their own interpretation. Each interpretation will then apply only to those individuals that fall within the parameters of that agency's interpretation of the law. It is further complicated when the federal courts make additional interpretations.

While it is impossible to cover every disability and possible infraction in detail, it is essential that agency and court officials determine a standard interpretation of the law. This interpretation must then be followed throughout the entire ADA enforcement process. Until a standard definition is agreed upon, very little will be accomplished in defending the rights of individuals with disabilities under the ADA. Laws are most effective when a precedent setting ruling (a past ruling that sets forth a guideline for future rulings) has been made in the courts. This can only be accomplished if the agencies and courts agree upon the interpretation on which the ruling is based.

Know Your Rights

An additional issue arises when speaking of an individual's requirement to use the court system or mediation service to resolve a complaint. Individuals should not be expected to sit before an official to explain a violation that should have never occurred in the first place. The ADA requires a certain degree of cooperation among local businesses and public facilities. Why is this cooperation lacking? These entities are taking advantage of the holes in the enforcement policy. They are banking on the possibility that individuals with disabilities will feel stifled in a process that requires them to speak up. They are banking on the possibility that very few individuals with disabilities really understand their rights under the ADA, as they have severely limited access to the law. They are ultimately ignoring a law, and getting away with it.

It is evident that there exists a rather large gap between the intentions of the Americans with Disabilities Act and the enforcement of it. To make the ADA as effective as originally intended there needs to be a union of policies and procedures among the enforcing agencies and courts. Since there is very little pro-active enforcement in existence at this time, enforcement is unfortunately left up to the individual. Perhaps if enough individuals band together, enforcement practices will be changed. Once enforcement practices are changed, you will be freed from the barriers prohibiting you from the life you deserve. Until then however, you must take the responsibility to know and understand your rights under the ADA, you must be the driving force behind this law.

Due to the lack of effort by the enforcing agencies your concerns are not being heard. You alone provide the greatest stepping stone to change, through sharing your personal experiences. Seek out the appropriate agency or agencies and let your voice be heard. Public awareness, your awareness, is necessary to make this law work.

The preceding editorial has been derived from the following sources (some links are no longer available):

Following are a list of resources and agencies you can contact for more information regarding the ADA and its provisions:

For answers to additional questions contact: To file a complaint or to voice your concerns, you can contact the following agencies:

For more on the topic of Legislation:

Legislation and the Law

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[Updated January 31, 2001]
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