The Americans with Disabilities Act of 1990
The first impression that the average person might have when reading about the Americans with Disabilities Act of 1990 (ADA) is that it appears to be greatly beneficial to Americans with disabilities. Certainly, it was intended to be of assistance to these individuals; however, a question remains regarding the degree of assistance that it provided to the, or if it was beneficial at all. The intention of the ADA was to open access to all aspects of society, to people with all kinds of disabilities.
It was intended to prevent discrimination against individuals with disabilities in the same way that previous civil rights laws protected people from discrimination based on race or biological sex. The ADA is divided into five sections, called “titles. ” These titles each address certain topics including various regulations for businesses and organizations of almost any size or purpose, requirements for communications over the telephone, and other provisions in terms of providing physical access, as well as other forms of access to the disabled population.
Overall, the ADA does provide the valuable protections to many Americans. It allows individuals with disabilities to have access to education, employment, housing who may not have previously had opportunities in these areas. However, the ADA is not without its issues. The language of the ADA at times goes beyond regulating easily defined and delimited impairments that have objectively determined bases to protecting individuals defined as “impaired” merely because they are affected by people’s perceptions of a condition or illness that they possess.
The language of the ADA raises other issues as well, including the suggestions that the ADA is little more than an enforced quota system or that the measure “infantilizes” the individuals that it claims to protect. This paper will be used to summarize the ADA and describe its history, as well as some of its effects. Some of the individuals involved with ADA and its policymaking will be addressed. Finally, this paper will be used to discuss the assumptions and values inherent in the ADA and some recommendations for its change. The History of the Americans with Disabilities Act of 1990 The ADA is a civil rights bill.
When it passed into law on July 26, 1990 the people who wrote it expected that it would protect individuals with disabilities in the same manner that the Civil Rights Act of 1964. The ADA is divided into five sections, known as “titles. ” These titles define, suggest, or regulate a number of different issues, including: 1. Equal employment opportunities 2. Access to public services overseen by state and local governments 3. Access to both publicly- and privately-run businesses for people with disabilities whenever possible 4. The availability of telephone and other voice communication services to the hearing impaired 5.
Definitions of the breadth, depth, and limits of ADA protections and of limitations to state immunity, as well as describing technical assistance programs of importance to businesses (Eckert, 2003). Regardless of the size, all state and local governments fall under the provisions of the ADA. The provisions of the ADA also apply to all sizes of business, regardless of how many people are employed by those businesses. Certain exceptions are made, however, when compliance would cause undue hardship for the business that needs to make modifications. Before the 1960s, people with disabilities were often removed from the general population.
Previous generations assumed that individuals with disabilities were “suffering” due sins either they or their ancestors had committed. Children with disabilities were sent to separate schools from other children, if they were educated at all. The first attempts to care for American citizens with disabilities did not come until the nineteenth century, when life was a little easier and people were able to turn to doing charitable acts. These acts sprung from the community having a “humanitarian religious background that stressed the responsibility of the successful to help the unfortunate” (Rubin & Roessler, 2001, p.6). The first efforts made benefited individuals who were deaf or blind; only later were attempts made to assist individuals who were mentally retarded or mentally ill (Rubin & Roessler, 2001, pp. 6-7).
Regardless of these advances, new laws were passed in the second half of the nineteenth century that were based on the scientific theories of eugenics. These laws prohibited people with mental or emotional disabilities from marrying, among other things, to remove them from the gene pool (Rubin & Roessler, 2001, pp.15-18), eventually leading to individuals with disabilities being segregated, including segregation through special education and vocational education. Eventually, as expectations for social responsibility waned, the government took on the role of setting guidelines as to how people with disabilities were treated. Progress first came in terms of worker’s compensation laws and rehabilitation acts.
The Depression slowed much of the progress being made in rehabilitation services, but eventually the improved economy resulted in the creation of a number of rehabilitation programs (Rubin & Roessler, 2001, pp.31-32). The period between 1954 and 1972 for that time to be called “The Golden Era of Rehabilitation” due to all of the legislation enacted during this time (Rubin & Roessler, 2001, p. 34). One of these pieces of legislation was the Vocational Rehabilitation Act of 1954, which authorized funding for vocational education and expanded services. In addition, amendments to the Social Security Act provided aid for individuals with disabilities (Rubin & Roessler, 2001, pp. 33-36).
Despite these efforts, individuals with disabilities still faced discrimination. Even the Civil Rights Act, passed in 1964, did not protect people with disabilities from discrimination. However, the Civil Rights Act was the first among this kind of legislation to formulate actual penalties against those states that did no enforce the Act. These penalties included “termination of financial assistance if states and communities receiving federal funds refuse to comply with federal desegregation orders” (Rubin & Roessler, 2001, p. 42).
The Civil Rights Act, however, did provide the foundation for other legislation, such as the Architectural Barriers Act, passed in 1968. In what was quite possibly the most important move for the disabled community, the Rehabilitation Act of 1973 removed many physical and intellectual barriers to individuals with disabilities. The Americans with Disabilities Act of 1990 was one of these acts of legislation. The ADA built upon previous acts by prohibiting discrimination against individuals with disabilities, as described in an earlier section.
The sociopolitical model came into being at about the same time the ADA was passed. As the medical model fell out of favor, having a disability was no longer considered a stigma and the isolation of individuals with disabilities was slowly put aside. Instead of seeking to segregate the disabled or trying to “fix” them, the new model is attempting to integrate them and bring equality to the disabled population. Individuals with disabilities were brought into the educational system and into the workforce and were perceived as equals perhaps for the first time in history.
Both the ADA and the legislation that reauthorized its provisions addressed many areas of discrimination against individuals with disabilities. As part of this focus on discriminatory practices, Title I of the ADA addressed pre-employment testing and screening. According to Power (2000) the ADA “mandated when employment testing should be done, and described how testing must relate to the essential functions of the job (p. xiii). Testing accommodations under the ADA were divided into the categories of medium, time limits, and content (Power, 2000, p. xiii).
These limits allowed more individuals with disabilities to have wider scope when taking pre-employment tests, permitting them to test in areas for which they may have previously been arbitrarily deemed unsuited. Positive and Negative Impacts of the ADA However, not all of the effects of this legislation were necessarily positive ones. The ADA undeniably fostered ill feelings in the American public, based on the public’s perception of the ADA being nothing more than legislation that enforced quotas or as legislation that encouraged abuse through its widely inclusive language.
This last perception was reinforced by the popular culture in the media, such as its mocking treatment in segments of the popular cartoons The Simpsons and King of the Hill. These two programs featured episodes in which characters deliberately abused the ADA, forcing situations by which they fit the apparently loose provisions of the act. In the mind of the public, Homer deliberately overeating to fit the definition of “morbid obesity” and the efforts of Hank Hill’s co-workers to force various personal issues into compliance with the ADA provisions showed how the ADA could reinforce or even reward malingering.
The King of the Hill episode took a sly jab in this vein at the ADA by its conclusion, which showed the entire office being “protected” under the auspices of the ADA, with only the manager being held responsible for doing any work (Krieger, 2000, p. 20). The last scene of that particular King of the Hill episode may be of importance for several reasons. First, as already noted, it sends a subtle message to the American public, many of whom do not have informed opinions about the act, about the ADA.
Second, as noted by Cary LaCheen, a parallel exists between the way that the media portrays the ADA and the manner upon which it is ruled in the courts (cited in Krieger, 2000, p. 25). Finally, this final scene might have played on fears that the American public had at the time of the “high levels of job instability and worker displacement” that characterized the then-current labor market and that potentially bred “insecurity, fear, and resentment toward employment protections extended to members of disadvantaged groups (Krieger, 2000, p.
28). While these publicly-held sentiments are not caused by the ADA itself, they are a response to the frequently vague and over-broad language and interpretations of the language of the act itself. Schwochau and Blanck (2000) suggest that the ADA has actually had a negative effect on the employment of people with disabilities or, at the very least, that the ADA has not created improved working conditions for individuals with disabilities.
The authors indicate that at the time that their article was written the figures produced in the surveys provided by the National Organization on Disability actually reflected a decline in the number of such individuals who were employed (Schwochau & Blanck, 2000, p. 271). The same surveys indicated that educational barriers still remain, with individuals with disabilities still obtaining unequal education despite being largely integrated into the general education population.
However, the surveys indicated that there had been some increase in employment for severely disabled individuals (Schwochau & Blanck, 2000, p. 271). Two interesting and potentially disturbing aspects exist in the ADA legislation. One such aspect is that it legislates people’s perceptions; that is, if the perceptions of others cause a person to be perceived as disabled, then that person is protected under the provisions of the ADA (Boyd, 2002, p. 2). Boyd (2002) lists HIV status, disfiguring facial scars, and morbid obesity as three such perceived disabilities (p. 2).
Another difficult aspect is that the ADA, intended to prevent discrimination, is discriminatory in and of itself. It does not recognize the rights of all individuals with disabilities; rather, it recognizes the rights of only those individuals whose disabilities meet the statutory definition of disability (Colker, date, p. 98). While the drafters of this act chose to use longstanding definitions of certain disabilities, adopting some definitions from Section 504 from the Rehabilitation Act, it is clear from the above paragraph that these definitions contain some gray areas.
Because individuals who do not meet these defined limits are not covered by the ADA, people who lack disabilities are unable to bring reverse discrimination suits or otherwise “challenge favorable treatment of individuals with disabilities” (Colker, date, p. 98). This narrow concept of who is covered by the ADA also has the potential to create a type of affirmative action program for individuals with disabilities (Colker, date, p. 98). Previous incarnations of affirmative action programs have not been effective for those individuals they allegedly protected.
Rather, there has been some argument that affirmative action programs that emphasize the “needs” rather than the “rights” of certain groups actually “infantilize” those individuals (Burke, 1997, p. 271). Who is Involved in the Debate? The debate on the ADA is widespread and covers many areas of society. On the one hand, the National Organization on Disability and other similar groups stand in advocacy of individuals with disabilities. Educators at all levels have also taken up the banner of accessibility and inclusion.
Economists, on the other hand, appear to be arguing that the ADA is not as beneficial as it was once thought it could be. Regardless of these positions, however, the influence of the ADA continues to be debated. One source of current debate comes from the technology sector. Because the ADA grants equal access to individuals with disabilities, one question that currently exists is whether or not this guarantee of access extends to commercial and private websites (National Council on Disability, 2003, par. 1). This debate extends from Title 3 of the ADA and the definition of the word “place” as used in that title.
If individuals with disabilities are unable to access these site through electronic aids such as synthetic speech or Braille outputs, are the parties who run these sites liable to provide them access (National Council on Disability, 2003, par. 12). Although a great deal of the access issue can be resolved with a small amount of additional programming effort, how far is it necessary to go to be in compliance with the ADA–or does it extend at all to the Internet? Although the answer to this question has been ruled as “no” in the past, advocacy groups continue to argue that the provisions of the ADA cover more than just physical spaces.
One perception of the ADA is that the law “forces” equality by requiring employers to treat individuals with disabilities differently to permit them to function as other employees’ equals. However, as Schwochau and Blanck (2000) points out, companies are already in the position of purchasing equipment by which employees can perform their jobs in an equitable fashion. Purchasing a piece of equipment that enables an individual with a disability to do his or her job should be considered “no more than standard practice” (p. 312).
However, the cost of the accommodations that required by the ADA may outweigh the benefits to the employer, “resulting in market inefficiencies and welfare losses” (Schwochau, Blanck, 2000, p. 308). The primary assumption of the ADA appears to be that a person with a disability is as capable as any other worker might be, given the chance. The National Organization on Disability (NOD) paints a rosy picture of this assumption, reminding employers that among other things: o Hiring individuals with disabilities eases concern over the labor supply
o Job performance ratings and retention rates for individuals with disabilities are equal to or higher than for other workers, while at the same time exhibiting lower absenteeism rates o Tax benefits are available to companies that hire individuals with disabilities (National Organization on Disability Website) However, these assumptions may not be as widespread in practice as they are in discussion. According to Maheady and Fleming (2005) it is common for nurse educators and facility administrators to “voice concerns and hold preconceived notions of success or failure before the student [with a disability] even steps on their floor” (p.
52). These concerns and notions include the accommodations that will need to be made and the issue of patient safety (Maheady & Fleming, 2005, p. 52). Recommendations and Rationale for Change One potentially helpful change would be to change the language of the ADA, particularly the language concerning the terms “reasonable accommodation” and “undue hardship,” as well as the language that defines disabilities. The language currently in use in these areas of the ADA is both vague and broad in its application.
As shown by the exaggerated situations used to comedic effect by the television programs described above, the vague definitions of these terms are open to abuse. If it is reasonable for a person to provide assistance for a person with a hearing impairment to use the telephone, why would it be unreasonable to provide the addict depicted in the King of the Hill episode with lowered lights and a quiet environment? At what point does “undue hardship” begin if there is no financial cost to the business?
When does the “reasonable accommodation” for one worker begin to impose on another if that imposition is not defined by physical space? In many cases, however, this episode demonstrates the opposite of how individuals with disabilities are treated. Rather than making an extra effort to comply with the reasonable accommodation aspect of the ADA, employers seek to avoid making changes in the workplace. However, individuals with disabilities would often stay in the workforce longer if they would get accommodation.
Ultimately, changing the language of the ADA to reflect making these accommodations would save the government money in the long run, by removing people from the welfare rolls, which, ultimately, would serve the public good–and would serve business–by avoiding higher taxes. Another limitation of the ADA is its lack of precision in matters of Internet access. The ADA is legislation of the 1990s; new concerns now exist in terms of online communication that might be addressed by a modified ADA. Although computers were online to a certain extent when the ADA was compiled, the Internet has become far more pervasive since that time.
Technology does exist that enables individuals with hearing or visual impairments to use the Internet; however, what is the obligation to the employer to provide this costly equipment to a single employee? Would a refusal to provide this equipment be covered by the “undue hardship” area of the ADA, or would it constitute discrimination. Without an update to the language of the ADA, situations created by current and future technology will remain unaddressed. Rather than rely on the input of a small selection of interest groups, it would seem wise to widen the scope of information gathering for these proposed modifications.
Community seminars could be used to form local focus groups, which in turn could produce reports to be compiled into a block of regional or nationwide research. These seminars would have the beneficial side effects of informing the public and enabling them to feel empowered as they provide their input on something that has an effect on their working lives. At the same time, these focus groups could serve to change the opinion of the public about individuals with disabilities, as some people in the general public have the impression that members of the disabled population do not want to work.
In addition to these focus groups, councils formed by those individuals who work with the disabled community and members of the business community might be established to discuss and define an alternative to the terms “undue hardship” and “reasonable accommodation. ” These and other questions should be addressed to improve both public perception of the ADA and its application in the business world Finally, changes could also be made to the ADA in terms of defining disability. Public perception of a person with a disability is that of a person in a wheelchair.
This stereotyped perception leads to wheelchair ramps being installed outside of public buildings, such as schools, or even outside of some privately owned business and retail stores. However, not all disabilities are visible. Some individuals have disabilities related to heart disease or immunodeficiency diseases. These individuals often have difficulty breathing or lack energy and lack the ability to climb stairs. Their only alternative in these situations is that of walking long distances through these ramps, which may actually aggravate the conditions that they possess.
By creating a more inclusive list of disabilities and their definitions that is reflective of these hidden and unfamiliar conditions, more appropriate accommodations might become more available to a greater portion of the disabled community. Conclusion Throughout the history of the profession, social workers have been involved in seeking social equality and social justice for people caught in an unequal and often unfair system. Within this role, social workers have often actively participated in the political process.
Therefore, social workers have an obligation to lobby local, state, and even federal legislatures to pass laws that grant businesses money to make the specific accommodations required by people with disabilities. Some funding already exists; however, it does not meet the needs of either individuals with disabilities or of the businesses seeking to accommodate them. The ADA created a new realm of opportunity for individuals with disabilities. However, while well intentioned, some of the aspects of the ADA are problematic. Economic results do not reflect the predictions made by the supporters of the bill before it passed into law.
In addition, some areas of the ADA are in need of modification to reflect today’s concerns. Although the ADA is a stride in the right direction for individuals with disabilities, the journey toward equal rights and access for these individuals remains a long one. In truth, the ADA should not be considered a finished product, neither now or in the future. As society changes and the use of technology grows, the ADA will need to be redesigned and redefined to take these changes into consideration. The future of the United States is formed by the future of its people, no matter who they are or what their abilities might be.