When the Americans with Disabilities Act (ADA) of 1990 was first debated, opponents warned that it would open a whole new avenue to lawsuits, ultimately benefiting lawyers more than people with disabilities. Small businesses, opponents argued, were especially vulnerable.
Now, in the twenty-fourth summer since the ADA was signed into law, central California is experiencing a rash of lawsuits against small businesses for being inaccessible. In the last two years, one woman with a disability has been responsible for 25 lawsuits in Stockton, Manteca and Ripon, with 15 of those suits brought in 2014 alone. Her attorney, who has brought 46 ADA-based cases to court, says, “I do believe the disabled have a right to equal access and it’s not something people should take lightly.” But, as the Modesto Bee reports, many businesses see the legal challenges as “a shakedown, often aimed at small-business owners whose easiest solution may be coughing up a few thousand dollars to make a threat go away.” Another attorney put it bluntly: “This is big money for these people.”
Closer to home, as they assess the successes and failures of the landmark ADA as it approaches age 24, ICS leaders take a more nuanced view of the efficacy of lawsuits like the ones in California’s courts.
“From a disability rights perspective, I do not agree with the method of ‘drive-by’ lawsuits,” says Anna Fay, ICS Senior Vice President of Independent Living Services, “but 20-plus years is a long time to wait for remedying discriminatory practices. The ADA was meant to be the promise of the end of discrimination for people with disabilities. Good intentions are empty promises.”
“The thing about these drive-by lawsuits is that they’re hurting people,” says Marilyn Saviola, Senior Vice President, Advocacy and the Women’s Health Access Program—and it’s not small businesses she’s referring to. “These lawyers will get a person with a disability to go around looking for businesses with ADA violations. There will be a lawsuit and a settlement, and the lawyer takes a cut, and the person with a disability gets a little piece. What a lot of people don’t realize, you get a $3,000 settlement and you could be endangering your Medicaid and Social Security.”
Scattershot Attack on Discrimination
An individual lawsuit against one small business for a punitive sum may be a scattershot approach to ending discrimination, but the threat of them is having at least some positive effect in California: the heat the lawsuits have generated is sparking a movement to educate businesses to protect themselves. In June a Manteca cabinet maker arranged a workshop with an architect and lawyer to teach businesses in pre-1990 facilities how to comply with the ADA.
“I think the promise of the ADA was always in new construction,” says Loreen Loonie, ICS Senior Vice President, Marketing and Communications, who began her career as a disability rights advocate. “In new construction there is a system in place that has more integrity and accountability, for example, from architects and building code officials.” On the other hand, Loonie says, the” readily achievable” standard for construction in place before the ADA “leaves a lot of room for interpretation. And there is zero enforcement.”
“I’ve found that younger cities are more accessible,” says ICS Board Member Terry Moakley, who, like Saviola and Fay, has been on the front lines of the disability rights movement since the early 1970s. “I go to San Diego often because my daughter lives there. It’s hard to find inaccessible buildings there. To me, getting older cities like New York, D.C., Chicago, et cetera, to become more accessible is the biggest challenge. Many older small buildings are difficult or impossible to make accessible.”
Weak Points and Strong Points
Looking at the whole of the ADA, Moakley says the employment provisions have had the most disappointing results. “The unemployment rate of persons with a disability nationally as of June 2014 is 12.9 percent, but just 6.1 percent for persons without a disability. Both of these numbers are down significantly from last June, but the bottom line is that more than twice the number of disabled people are unemployed when compared to unemployed people without disabilities.”
Moakley, a leader in the fight to make New York City subways, buses and taxis accessible, says the most obvious positive impact the ADA has had is on public transportation. “Before the ADA,” he says, “there was very little accessible transportation. Today, all full-size buses in the nation are accessible, subway systems are more accessible, as are light rail systems. Plus, complementary paratransit service—Access-A-Ride here in New York—is in every community that operates any type of bus or rail system.
ICS Chief Operating Officer Regina Estela agrees with Moakley about the ADA’s success with public transportation. “I remember when people with disabilities carried lift keys for the buses so drivers couldn’t deny them a trip for lack of lift keys. That certainly is not the case today,” Estela says. “People with disabilities are more likely to miss a bus ride because all the accessible spots are taken by other riders with disabilities. Wheelchair users ride the public transit system with such frequency that it is normalized and most riders don’t think twice about it.”
Like Moakley, Estela is less sanguine about the ADA’s effect on employment of people with disabilities. Another area of concern, she says, is in the access to health care, particularly for women with disabilities. “It is quite appalling that all these year’s after passage of the ADA , women with physical disabilities still have to fight to get equal access to mammography and other health services.”
Saviola concurs and adds, “Progress is going to come piecemeal, through class action lawsuits and Department of Justice and state government initiatives. The Centers for Medicare and Medicaid Services and DOJ are working on making a requirement for new medical diagnostic equipment to conform to universal design standards, which would make them all accessible to people with disabilities. But nothing will change unless disability rights activists organize and make it change.”
“I recently read an article about Supreme Court decisions that have led to the ‘re-segregation’ of schools in the US,” Estela cautions. “I worry, that without advocacy, the same kind of erosion of civil rights will happen with the ADA.”
To that point, Moakley adds, “I remember, probably 20 years ago, when Frieda Zames and Disabled in Action started the ‘One Step Campaign’ in the city. They went from building to building encouraging stores and other accommodations to become accessible, just by putting a small ramp at the doorway. We need more of that kind of advocacy.”
Reason for Optimism
Loonie is ultimately optimistic about the effects of the ADA. “It’s a remarkable piece of legislation and it still has the potential to change the world for the better,” she says. “Because of the ADA, public accommodations now have to think about people with disabilities. At first, they sought to include them because it’s the law. Now, they seek to include them because they are valuable members of the public with valuable thoughts and experiences.
“I think the biggest impact of the ADA, however, is that people with disabilities think of themselves differently,” she adds. “The ADA helped them change their expectations: People with disabilities now expect a place at the table and are willing to demand it.”