AFTER THE HYPERBOLE FADES, REALITY SETS IN
By John Weston Parry, J.D.
In the afterglow of celebrating the 25th anniversary of the landmark passage of the Americans with Disabilities Act (ADA), it is understandable why so many organizations that advocate on behalf of people with disabilities want to crow about the many good things that have transpired through their advocacy. That is human nature and how organizations function. At the same time, these are the primary voices that tend to be heard in these annual celebrations. For these celebrants showing progress, being overly optimistic, and not disrupting the status quo are important in order to receive public funding and most large private donations.
The economic incentives for these advocates, both in the public and non-profit sectors, are skewed towards incremental and socially acceptable changes. As a result: litigation has become a woefully underutilized tool for obtaining justice and social change under ADA; and lawyers, who aggressively litigate to advance the civil rights of people with disabilities, are often disparaged. More than ever effective enforcement of individual rights and entitlements under the ADA requires litigation—lots of litigation, which for years now is a commodity that has been scarce and openly discouraged.
On balance, most of the other stuff that advocacy agencies and groups do now has been incrementally-effective at best, or part of efforts to increase funding for themselves, so they can continue to do their work and perpetuate their agencies and organizations. In this way it is much like Congress. Today, even legislative advocacy, which may have high aspirations, normally results in progress well-short of passage or defeat. Occasionally, discrete laws and regulations are enacted or promulgated. Typically, however, they have been diluted by compromises necessary for their passage or promulgation, and by ineffective implementation and enforcement. The advantage of legislative advocacy, however, is that, despite its limited effectiveness, organizations can get their constituents involved and use it for fund-raising efforts far more easily than litigation, which normally has to be pursued as a last resort with an implicit apology attached.
Thus, it is not surprising that the voices, which are heard singing the praises of the ADA, fail to capture the true measure of what has transpired since the ADA took effect, most noticeably the lack of progress and endemic systemic failures. These shortcomings may provide meaningful challenges for advocacy agencies and organizations, but they can be devastating for people with disabilities. As Lawrence Downes opined in the New York Times with respect to the Special Olympics, the celebration “has to last, because the athletes will need it when they get home and become invisible again.”
There is a persuasive argument to be made that the ADA has been a major disappointment in many important ways, especially as it pertains to people with legally significant mental impairments. That argument begins by asking the question whether, due to the ADA, people with life-altering mental, physical, and sensory disabilities are substantially better off today than in 1990? The answer has three important dimensions: the existence of new rights and entitlements that never existed before then; gaps in the law that have never been closed; and the extent to which, a quarter of a century later, the rights and entitlements that do exist have been implemented throughout American society and enforced.
The “Reasonable” Expansion of Civil Rights for Many People with Disabilities, But Not All
Clearly, people with disabilities have more civil rights than ever before, not only at the federal level, but also in states and localities. There are a plethora of different federal and state disability civil rights laws and regulations that have established a patchwork of entitlements that owe their existence to the ADA and the essential federal laws that preceded the ADA, most notably the Rehabilitation Act, the Individuals with Disabilities Education Act, and the Fair Housing Act. The ADA is historic, however, because it was the first federal legislation to address the civil rights of persons with disabilities comprehensively in three major areas: employment, government services, and public accommodations in the private sector. It also covered telecommunications, but more as a compromise with the telecommunications industries than a concerted effort to end discrimination in that area.
In passing the ADA, Congress created the impression that this was a bipartisan civil rights law for people with disabilities, which was as comprehensive, important, and necessary as comparable laws for any protected class of people. The legislation was born out of an understanding specified in the Act itself that:
[I]ndividuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions. 42 U.S.C. Sec. 12101(a)(7)
Throughout the world, the ADA is hailed by disability rights advocates as legislation that should be emulated. The United Nations Convention on the Rights of Persons with Disabilities owes a great deal to the principles that the ADA and federal statutes that preceded it established. In the courts since its passage, there have been significant victories in interpreting the ADA, depending on the issue and the jurisdiction in which it has been litigated. One of the most uplifting victories was Olmstead v. L.C. ex rel Zimring, 527 U.S. 581 (1999), which found that the integrated services mandate under ADA Title II provides many institutionalized persons with mental disabilities a right to be placed in community settings. But overall the rights and entitlements under the ADA, with a few notable exceptions, have been sustained as written. In certain areas there even has been noticeable backtracking.
The problem is that the law as written has many serious deficiencies because of a number of compromises and intentional limitations. Not including enforcement, which will be discussed separately, there remain intended gaps and exclusions in coverage that substantially weaken the law from the perspective of people with disabilities, especially with respect to certain mental disorders that are viewed as being outside the mainstream of American values. Three gaps in the law are most noteworthy: the notion of reasonable accommodations or modifications; statutory exclusions that leave unpopular mental impairments unprotected; and exclusions for persons who are deemed a direct threat to others and, more recently, to themselves, which are tied to this nation’s distorted and prejudicial notions about dangerousness.
Reasonable Accommodations and Modifications
What separated the ADA from federal civil rights legislation for other protected classes of people was the concept of reasonable accommodations or modifications, which had its genesis in the Rehabilitation Act of 1973, as interpreted by the U.S. Supreme Court in Southeastern Community College v. Davis, 442 U.S. 397 (1979). The closest parallel notion in civil rights law is affirmative action for African-Americans, which has been aggressively rejected or substantially curtailed by many different courts, particularly the highest court of the land.
Conceptually, accommodations or modifications are those structural or procedural changes that are necessary for individuals with disabilities to have a legitimate opportunity to enjoy the rights and entitlements, which the ADA is supposed to provide and protect. For example, if a person in a wheelchair cannot get into the courthouse, his fundamental legal rights are being denied. Or if a prosecutor has been prescribed certain psychiatric medications, which makes it impossible for her to function adequately during the early and mid-morning hours, a hearing scheduled during that time period prevents her from doing her job.
A variety of accommodations and/or modifications are essential for the ADA, or any other rights legislation to be effective for individuals with disabilities. These accommodations or modifications will be different depending on the types and levels of individual impairments involved and the circumstances in which they occur. The main sticking point and the issue that much of the relevant litigation has centered on has been the legal definition of “reasonable,” and from whose point of view that decision was going to be made. There can be a wide gulf between accommodations or modifications that are necessary for a person with a disability to be mainstreamed into society or to avoid being discriminated against, and what is reasonable from the point of view of those who are obliged to make the required accommodations and modifications—primarily employers, governmental entities, and private concerns that hold themselves out as businesses open to the public.
It is important to understand there has been and continues to be a strong sentiment in this country that in order to attain equality everyone must be treated the same. This was the “liberal” understanding I had in grade school and my parents had for most of their lives. Conceptually, it was a big step forward from separate but equal. The downside is that based on this perspective, there should be no special accommodations or modifications, just like there should be no affirmative action.
That rigid view of equality, which failed to recognize the essential ingredient of equalizing opportunity, clearly influenced the debate about necessary accommodations and modifications. The requirement that any accommodation or modification be “reasonable” was a compromise between what was needed for people with disabilities to be successfully mainstreamed and what American society, at that time, would accept. For most Republicans who supported and even helped to initiate the ADA legislation, especially President Bush and his administration, this was a non-negotiable, redline requirement for ensuring the ADA’s passage.
For many Americans, any effort to enhance the opportunities for some people and not others was and continues to be discriminatory and ill-advised. Thus, from that particular perspective, preventing any accommodations, modifications, and affirmative action can be viewed as reasonable. Complicating matters further, under the ADA what is reasonable is supposed to be made on a case by case basis, so general guiding principles have been hard to come by and seemingly equitable outcomes for people with disabilities easily challenged by astute lawyers. Those parties with the most resources and influence tend to prevail—meaning employers, governments, and businesses—especially when improving the economy is the predominant priority.
Thus, while there have been incremental victories in expanding what is reasonable in order to accommodate people with disabilities, such as allowing Casey Martin, a professional golfer with a debilitating circulatory condition in his leg, to use a cart, PGA Tour Inc. v. Martin, 532 U.S. 661 (2001), the thrust of the decisions and regulations surrounding reasonableness have been far more limiting than expansive. If an employer, business, or government entity wishes to deny an accommodation or modification, the law tends to be on the defendant’s side because what is reasonable is likely to be made from the defendant’s point of view.
Moreover, lawyers who successfully sue employers, businesses, or governments on behalf of people with disabilities to obtain accommodations and modifications, which after twenty-five years still have not been made, tend to be viewed more like ambulance chasers than ingenious or dedicated civil rights advocates. This is especially true when defendants are cast as small businesses or local governments, who are being picked on by avaricious litigators and serial plaintiffs. This anti-litigation view has become so prevalent that some judges have been granting attorneys’ fees and costs to defendants, if they are prevailing parties in certain types of ADA lawsuits, which of course is a huge disincentive for plaintiffs with disabilities to sue.
ADA Exclusions from Coverage
Under the ADA, two categories of individuals with impairments are specifically excluded from coverage and thus may be discriminated against based on their disability status. Both exclusions, not surprisingly, target people with mental disorders associated with what are considered to be deviant behaviors. The first category is made up mainly of people with difficult to control compulsion disorders: sexual cravings, compulsive gambling, kleptomania, and pyromania. This category can be divided into two different groups: those who have not committed a crime linked to their disorders, but are being excluded because of the possibility that they might, no matter how small that possibility might be; and those, who have actually been convicted of committing such a crime.
Exclusion from the ADA’s protections is obviously unfair for those in the first group. Unfortunately, this type of overly broad response is typical of how our society discriminates against those who are presumed to be potentially dangerous due to their mental status. For the second group, the exclusion is more understandable, although not necessarily in every case or even most cases. Furthermore, that type of exclusion from the mainstream can be counterproductive if the resulting discrimination interferes with an offender’s recovery and rehabilitation. This is especially true if those individuals have been released back into the community, have not committed another such crime for a number of years, but are struggling to make a new life for themselves.
For large number of offenders with sexual disorders who have committed sexually-based crimes, most of which are not violent, but are nonetheless viewed as offensive to members of the community, the consequences of disability-based discrimination can be devastating. Because they have a mental disorder that pushed them to commit the crime for which they already have been punished, they not only are excluded from the ADA’s coverage, but are subject to various types of statutorily mandated discrimination as well. Typically these offenders are placed on sex offender registries available to the public, denied a multitude of social services and the right to use the internet, and limited where they may live, visit, or even walk. The ADA exclusion invites further discrimination in other areas of their lives.
The second exclusion category is for anyone who currently uses illegal drugs, regardless of whether it is the product of an addiction. The definition of current includes people who recently used those drugs, even if they no longer do. Any current illegal drug use is grounds for exclusion, even something as minor as marijuana. Presumably even in states that have legalized the use of marijuana, it continues to be considered illegal under the ADA because the federal government still treats such use as being illegal.
There is no mechanism in the ADA to make meaningful distinctions between different types of users of illegal drugs. Addicts are excluded along with recreational users and hardened criminals because our society still fails to recognize certain forms of substance abuse as being a disease, or, even if there is that recognition, the desire to punish all drug offenders transcends the desire to provide treatment and promote recovery to those who can benefit.
Direct Threat to Self or Others
Protections under the ADA do not extend to individuals who are deemed to be a direct threat to others or themselves. Originally it was widely accepted that the language only applied to threats to others. Primarily due to the Supreme Court’s ruling in Chevron U.S.A. v. Echazabal, 536 U.S. 73 (2002), however, that exclusion was extended to threats to self as well. Not coincidentally, this exclusion now closely parallels the language in almost every state that allows for the involuntary civil commitment of people with various mental disorders.
As discussed in a previous essay (#21), this past summer the U.S. Supreme Court intentionally avoided deciding the question of whether the direct threat exclusion could be used to deny protections under the ADA to a woman, who was shot multiple times by police officers, when they went into her apartment in a misguided attempt to have her involuntarily committed to a psychiatric facility. City and County of San Francisco v. Sheenan, (No. 13-1412, May 18, 2015). The fact that the case provided a perfect opportunity to address this issue and the Court decided in favor of the woman on other more narrow grounds suggested that, if push came to shove, the Court would have ruled against the woman on the ADA issue.
Because in our society people with severe mental impairments are presumed likely to be dangerous to themselves or others, the ADA’s direct threat exclusion promotes and often has justified discrimination against these individuals, which otherwise would be illegal. Unfortunately, even the U.S. Supreme Court has tacitly embraced this form of discrimination. Thus, whenever the ADA has been violated and a person with a mental impairment is a plaintiff, one of the first defenses that will be utilized, if at all plausible, is the direct threat exclusion. Judges and juries, along with the rest of our society, generally believe that people with serious mental impairments are likely to be dangerous or substantially more dangerous than anyone else. Their judgments are informed by this bias.
Certainly any plaintiff who has ever been involuntarily committed is in jeopardy, but the double standard goes much further than that. It can be applied to any behavior or action by a plaintiff with a mental disability that is perceived as threatening, even if it does not present an actual danger. Thus, a woman with a mental illness, who is brandishing a kitchen knife with a five-inch blade, can be perceived as a direct threat to two police officers armed with guns, who have invaded her living space, even though the officers are not being attacked and are well beyond the woman’s reach. Shooting her is a preventive measure that is justified by the officers’ subjective perceptions about what constitutes a threat.
The Inability to Effectively Implement and Enforce the ADA
As unfair as these gaps and exclusions in the ADA’s coverage have been and continue to be, most of the intractable problems with the ADA and related disability laws center on poor implementation and lack of enforcement. By and large disability rights have far outpaced our willingness to ensure that those rights are enforced. That lack of commitment to enforcement was memorialized in the original legislation with the provision of strict limitations on the recovery of attorneys’ fees and expenses for lawyers representing clients whose rights or entitlements were being violated.
As was intended, this has left enforcement largely to the federal agencies empowered to enforce the various ADA titles. These agencies are subject to political persuasion. If a disability right interferes with a substantial business interest or strongly held community preference or belief, the likelihood is that the right will be under-enforced or largely ignored by those agencies. In addition, these agencies work under strict enforcement limitations themselves. They are badly underfunded to carry out, and specifically instructed to avoid, any type of enforcement that might involve litigation. With the down-turn in the American economy this enforcement imbalance has only grown worse.
There are very few private or public lawyers willing to litigate to ensure that these disability rights and entitlements are enforced, except in the limited circumstances in which victories by plaintiffs will generate sufficient fees and expenses to make it worthwhile for lawyers to undertake such representation. Since well before the ADA was enacted, Congress and state legislatures were committed to strictly limit the situations in which plaintiffs may recover attorneys’ fees and expenses for disability rights litigation. Even where it was permitted, the amounts often were artificially capped. The obvious purpose was to stifle civil rights litigation since private attorneys and firms rarely take on these cases, unless they are going to be paid. The amount of pro bono representation is a drop in the bucket as compared to the overall need. Also, as mentioned earlier, in certain ADA cases defendants can recover fees and expenses from the plaintiffs if defendants prevail and the plaintiff’s suit is deemed to be unworthy.
Furthermore, non-profit disability advocacy groups, even those that are legally oriented, tend to avoid litigation, especially if it is not a class action or has no broad policy implications. Individual representation is relatively scarce as compared to the overall need. The federally mandated Protection and Advocacy System (P&A) established in every state and territory, which has a number of different programs to advocate on behalf of persons with disabilities, is substantially under-funded. The P&As also tend to avoid litigation and other forms of individual legal representation. Thus, for disability rights violations most victims are on their own, meaning they have to pay the costs themselves. This can be burdensome even for those plaintiffs with the means to pay, and next to impossible for the majority, who are economically disadvantaged, poor, or homeless.
As a result of the futility of badly under-funded federal and state enforcement agencies trying to address far more violations than they are equipped to handle, and all the economic disincentives for private and public lawyers, who might otherwise fill this legal representation gap, the rights picture for people with legally significant disabilities is pretty bleak. Most potential clients with disabilities, whose rights or entitlements have been violated, have nowhere to turn or are placed in a position in which obtaining a victory is more burdensome than doing nothing at all. Most of them are not only invisible, but due to exclusions and gaps in the ADA’s coverage and major enforcement limitations, have no effective voice. There may be occasional public celebrations in the media that purport to recognize their accomplishments, but ultimately, despite their many rights, people with legally significant mental, physical, and sensory disabilities continue to be oppressed.