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Lessons from the Americans with Disabilities Act Experience

Time Distribution :2011-11-10 13:42:48author:Professor Michael Stein source: view count:0 Friend Comments 0 strip

Overview

Thank you for the opportunity to express a few thoughts on lessons, both positive and negative, that can be learned from the United States experience with the Americans with Disabilities Act (ADA). I honored to participate in this significant seminar with such noteworthy academics, advocates, and government officials. My hope is that by sharing our collective experiences we can learn from each other and move forward together when considering how best to design laws and policies that affect the lives of people with disabilities worldwide.



The recently adopted United Nations Convention on the Rights of Persons with Disabilities, which China and the Chinese Disabled Persons Federation strongly supported, will require States to ensure statutory protection for their disabled populations, and to formulate disability-related policies for its implementation. It is therefore imperative to identify good legislative practises that can be used as models by States, especially for the majority of States that lack domestic disability measures.



Beginning with the 1970s, American disability rights advocates sought civil rights protection similar to what the Civil Rights Act of 1964 provided to people of color and women. Their crowning achievement was the ADA’s promulgation in 1990. The ADA prohibits disability-based discrimination in employment, government services, and public access. As documented by a recent United Stated National Council on Disability study that I was fortunate enough to help direct, the ADA has had a positive impact by educating the non-disabled population about people with disabilities and their right to participate in society. It has also empowered the disabled themselves with a more affirmative self-image.



Further, the ADA has played a significant role in developing disability law outside of the United States, with more than forty countries adopting some formulation of the statute. Indeed, both the European Union in its Framework Directive on employment as well as the United Nations in the Convention on the Rights of Persons with Disabilities, utilize provisions taken from the ADA.



Nevertheless, and despite these laudable achievements, the ADA contains both design and implementation flaws. The legislation is unable to adequately protect Americans with disabilities in many aspects of their lives. For example, disabled Americans remain mired in poverty (25% of working age people live below the poverty line) and excluded from employment opportunities (62% of working age people are unemployed). Trenchantly, as a practical matter disabled Americans continue to be excluded from the fundamental right of voting. In sum, despite many positive affects, American-style disability civil rights have not -- and structurally cannot -- bring about equality on their own.



Moreover, the exclusive focus of American disability rights advocates on the civil rights aspect of disability law and policy is ultimately counter-productive. The efficacy of any law depends on considerations beyond its mere existence. This is especially true for civil rights laws that seek to prevent discrimination against a targeted group; they need to transform society’s institutional structures and attitudes towards those individuals if they are to receive equal treatment. Because the ADA does not account for these external affects, the civil and political rights of disabled Americans, including those contained in the ADA, are far from protected.



To be truly effective, both domestic and international disability rights must adopt a disability human rights paradigm. Such a framework combines civil and political rights provided by antidiscrimination legislation like the ADA, with the full spectrum of social, cultural, and economic human rights. By acting holistically, this agenda accounts for factors normally outside of civil rights laws and ensures that individuals can flourish and participate in their societies. This type of approach is embraced by the language of the United Nations Convention on the Rights of Persons with Disabilities. The future challenge for disability rights advocates and other supporters of people with disabilities worldwide will be to make this framework a reality.



To convey these goals in context, let me turn back to a fuller discussion of the development of American disability law and how it led to the ADA. After describing the ADA in general terms, I will return to its employment provisions. This is because of the importance that gainful employment has for equal social participation, and because of the clear structural shortcomings that prevent attainment of that equality under the ADA.



Disability in America


Prejudicial laws and social conventions regarding people with disabilities have existed since America’s founding. These have excluded disabled persons from a wide range of opportunities, including employment, marriage, jury participation, parenting, and voting. In extreme, but not uncommon instances, laws provided for lifelong involuntary institutionalization of disabled persons, and for their forced sterilization. Paternalism, as well as health and safety concerns, were frequently asserted as justification for these legal regimes. Throughout this bleak history, discriminatory and harmful measures that included widespread eugenic practices were sustained against rarely brought legal challenges. Perhaps the most infamous example is the declaration by United States Supreme Court Justice Oliver Wendell Holmes when upholding the State of Virginia’s compulsory sterilization of intellectually disabled persons on the ground that “[t]hree generations of imbeciles are enough.”



Disability law, as a vehicle for empowering and ensuring the equality of Americans with disabilities is a relatively modern, twentieth century phenomenon, with roots in the United States civil rights tradition. The notion of disability law as an equality vehicle that could influence federal government policy began in the 1970s. Under this model, disabled people conceived of themselves as a minority group much in the same vein as people of color and women, and so likewise entitled to legal protection. Their advocates asserted that the “disability” category was a social construct rather than a biological reality. Hence, the subordinated position of persons with disabilities was artificial, and should be remedied through rigorous application of antidiscrimination prohibitions. Advocates call this perspective the social model of disability.



The ADA

The influence of American disability rights advocates in successfully invoking the social model of disability is clearly reflected in the ADA’s legislative history. During hearings on the ADA, Congress was presented with a catalog of evidence on the historical exclusion of people with disabilities from American society. Among the more dramatic evidence presented was the results of an independent nationwide poll of one thousand Americans with disabilities which found that two-thirds of working age people with disabilities were unemployed, and that two-thirds of those individuals wanted to work but could not do so because of employer attitudes. The study also found that during the year preceding the ADA hearings, nearly two-thirds of individuals with disabilities did not attend movies; three-fourths of the disabled population did not see live theater or music performances; two-thirds of disabled people had not attended sporting events; seventeen percent did not eat in restaurants; and thirteen percent had not shopped in grocery stores.



As a result of those hearings, Congress was persuaded that the overall status of disabled people in America was a dismal one, concluding that they have historically been “relegated to a position of political powerlessness in our society,” and “continually encounter various forms of discrimination.” Consequently, the legislators found that people with disabilities have been denied equal opportunities in society, including employment, education, transportation, access to public services, and voting. Congress, moreover, identified the source of this exclusion as an artificial one, sustained by the “continuing existence of unfair and unnecessary discrimination and prejudice.” Among the forms of unwarranted exclusion encountered by people with disabilities on a daily basis, Congress noted “the discriminatory effects of architectural, transportation, and communication barriers.”



Accordingly, Congress premised the ADA on the belief that the repercussions of having a disability are often mutable, and can be relieved when the social environment accommodates physical and cognitive difference instead of excluding it. Here again, legislative history shows that Congress was presented with a prodigious body of evidence in which being disabled resulted in capable citizens being denied opportunity and excluded from social participation. In response to avoidable exclusion, the ADA seeks to redesign society to allow the integration of disabled people, rather than to predicate inclusion on their realignment. The ADA was therefore premised on the social model’s belief that peoples’ functional limitations are caused by the socially constructed environment, and that disability-related impairments are not intrinsically disadvantageous.



The ADA is a civil rights statute that prohibits discrimination in employment, government services, and public accommodation on the grounds of disability. Its three central titles require that people with disabilities not be discriminated against. These three central titles also require as part of not discriminating against people with disabilities, that the reasonable needs of the disabled be taken into account. Reasonable accommodations must be provided in the workplace; reasonable modifications must be made so that people with disabilities can partake of public services; and reasonable modifications must be made so that the disabled have access to places of public accommodation.



These obligations are seen as reasonable because they are limited in their scope and expense. To name a few: accommodations cannot cause undue financial hardship, create danger to the public, or significantly alter the fundamental nature of what a disabled person seeks to amend. And the scope of the ADA is limited to individuals who possess “a physical or mental impairment that substantially limits one or more of the major life activities,” who have a history of such impairment, or who are regarded as having one. These impairments must be significant, as measured in their mitigated states, and impair a wide range of functional activities. Moreover, disabled persons must be “qualified,” meaning that the provision of an accommodation or modification will enable them to engage in the desired activity.



The employment title requires claimants to file their complaints with the Equal Employment Opportunity Commission, a federal administrative agency, for a determination of merit. If the complaint has merit, the parties can have the dispute mediated, but only if all the parties agree. Otherwise, all complaints under the ADA’s three central titles must be litigated in an adversarial manner in court. Damage awards and attorney fees under the ADA are limited, with the result that disabled people often find it difficult to obtain legal representation.



The ADA and Employment



While enacting the ADA, Senators Harkin and Kennedy each proclaimed its passage as an “emancipation proclamation” for people with disabilities. Notably, in American history, the emancipation proclamation freed African American Slaves. At the heart of the statute, and intended as the most expedient method of bringing about social and economic equality for the disabled, are the ADA’s employment provisions.



By compelling employers to provide reasonable accommodations to qualified employees with disabilities, Congress intended to remedy the historical exclusion of disabled workers from the labor market that it documented during hearings on the ADA. Consequently, when a nearly unanimous Congress passed the statute, it was in large part to “guarantee” workers with disabilities “a level playing field.”



Yet, sixteen years later, one wonders just how far the disabled have been emancipated. One way to gauge whether social and economic empowerment has increased for people with disabilities after the ADA’s passage, is to examine their employment experiences. To date, empirical studies of post-ADA disabled employees’ labor market participation are less than encouraging. Notably, two well-publicized empirical studies of the relative post-ADA employment effects on workers with disabilities find a reduction in their employment rate, concurrent with either a neutral or beneficial effect on their wages. These studies have sparked a growing debate among scholars who either support or challenge their findings. Nonetheless, even those economists seeking to explain the available data within the context of broader economic effects, concede that post-ADA disability-related employment has not dramatically improved.



At the same time, plaintiffs asserting ADA Title I employment discrimination claims in the federal courts have a lower win-loss rate than any other group except prisoner rights litigants. Specifically, the American Bar Association Commission on which I sit found that employers prevail in more than 96 percent of ADA employment cases. Although a number of reasons may contribute to this phenomenon, from a purely qualitative perspective empirical analysis indicates that the ADA is not fulfilling its promise of empowering workers with disabilities.



The ADA’s failings in this respect are largely due to Congress having limited its operation within standard civil rights boundaries as a traditional antidiscrimination device. Thus, the ADA bans discrimination in employment, but does not provide the economic, social, or cultural rights needed to raise disabled persons to equilibrium with mainstream society.



Yet, full inclusion of a socially marginalized group requires invoking both types of rights. This is because antidiscrimination prohibitions can prospectively prevent prejudicial harm, while economic, social, and cultural rights are needed to remedy inequities that exist due to past practices. Moreover, failing to counteract the unequal position of people with disabilities perpetuates their social stigma and the attitudes that maintain their subordination. Thus, employment related antidiscrimination prohibitions are only effective when linked with the provision of readily available healthcare, and positive measures such as hiring preferences, and other vehicles that alter workplace cultures.



Unfortunately, the American disability civil rights movement did not embrace both types of rights, and neither did the United States Congress. By limiting the ADA to the realm of civil rights, the United States lost a central means of achieving its agenda of removing instantiated barriers to full social participation for its disabled citizens.



Further, the disability civil rights agenda’s atomistic focus on civil and political rights has encumbered American policy makers from producing a holistic disability policy framework that includes measures beyond antidiscrimination legislation. For example, obtaining gainful employment is contingent on connected factors such as the availability of healthcare, accessible transport, and vocational training. However, the disjuncture between civil rights and economic, social, and cultural rights manifests in an equivalent policy disjuncture. As a starting point, this may be because American policy makers view economic, social, and cultural rights as theoretically (and politically) beyond their mandate. Policy makers also may not be aware of the life circumstances of many people with disabilities. Simply put, United States legislators may not be adequately informed regarding the group they wish to assist.



To illustrate this discrepancy, consider the lack of extra-statutory support given the ADA’s employment mandate. It was intended as the most expedient method of bringing about social and economic equality for the disabled. Nevertheless, it took nearly a decade to pass initiatives that allowed people with disabilities on public assistance to maintain their health care coverage while transitioning to employment. During this period, and despite Senator Dole’s efforts, no job training programs were promulgated on behalf of the disabled, although they were developed for other historically disadvantaged groups as part of the dramatic welfare reforms. Indeed, to date no federal job program exists on behalf of people with disabilities. And, although ADA also requires that public transportation be made readily accessible to passengers with disabilities, its implementation has been slow.



Consequently, while the ADA forbids employment discrimination, the means by which disabled Americans can obtain and keep gainful employment have never been provided. In sum, the ADA cannot adequately ensure the inclusion of people with disabilities. This is evidenced by the disproportionately high rates of unemployment and poverty that disabled Americans continue to experience. This problem is heightened in the most socially marginalized -- those facing double discrimination (e.g., women with disabilities), and the intellectually disabled.



Conclusion



To be effective, both American and international disability rights must adopt a disability human rights paradigm. Such a framework combines civil and political rights provided by antidiscrimination legislation with the full spectrum of social, cultural, and economic human rights. By acting holistically, this agenda accounts for factors normally neglected by civil rights laws and ensures that individuals can flourish and participate in their societies. Internationally, States and civil society organizations have been developing innovative and effective disability measures. Collectively, we must draw on this experience to consider how disability law and policy can be developed to implement a more holistic human rights approach.





NOTE: Michael Asheey Stein, Cabell Research Professor (Fall 2006-date); Professor (Fall 2005-Spring 2006); Associate Professor (Fall 2003-Spring 2005); Assistant Professor (Fall 2000-Spring 2003) of College of William & Mary School of Law

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