July 23, 2015

By Barry C. Taylor

When Congress passed the Civil Rights Act of 1964, it provided protections to people based on race, color, ethnicity, gender, religion and age. The act did not include disability as a protected class, despite a long history of discrimination against people with disabilities.

Finally, in 1990, Congress enacted the Americans with Disabilities Act, providing comprehensive civil rights protections for people with disabilities.

On Sunday, the disability community will celebrate the 25th anniversary of the ADA. This article looks at the advancements people with disabilities have achieved under the ADA, the challenges of implementing the statute and an emerging issue that will significantly affect people with disabilities.

Removing barriers

The ADA has dramatically improved the lives of people with disabilities. It has successfully removed many barriers people with disabilities faced when seeking access to businesses, government services, public transportation and the workplace and has ensured equal opportunities denied in the past.

For example, the ADA requires all new construction to be accessible. As a result, most buildings constructed during the last 25 years have accessible parking, entrances, paths of travel and restrooms. Newly constructed buildings that do not comply with the ADA may result in court-ordered, costly retrofitting. As a result of these architectural requirements, the ADA has truly opened doors for people with physical disabilities.

Under the ADA, people with disabilities travel more independently and safely. Sidewalks have curb cuts, buses have lifts and accessible seating areas and parking lots have designated accessible spaces. People who cannot travel independently on public transportation are entitled to door-to-door transportation, known as paratransit.

The ADA provides critical protections in the workplace. It restricts the types of disability-related inquiries employers can make, preventing employers from excluding applicants with disabilities from the hiring process based on preconceived views of the limitations that a disability brings. The ADA also requires employers to provide reasonable accommodations to people with disabilities, such as modified work schedules, leave, telecommuting, reassignment to open positions and auxiliary aids and services.

The ADA also values integrating people with disabilities into society. Congress recognized that people with disabilities had been isolated and segregated from the general public.

To counteract this practice, the ADA mandated that people with disabilities receive services in the most integrated setting. Because of the ADA, thousands of people with disabilities have moved out of institutions and are now living more integrated and meaningful lives.

Legal enforcement

The ADA’s definition of “disability” is very broad, covering people who have a physical or mental impairment that substantially limits one or more major life activities as well as those who have a record of disability or are regarded as having a disability.

Although courts usually interpret civil rights laws liberally to effect the important underlying purpose, courts narrowly interpreted the definition of “disability” and consistently found that plaintiffs were not “disabled” under the ADA.

In Toyota Motor Manufacturing v. Williams, 534 U.S. 184 (2002), the U.S. Supreme Court held that disability under the ADA must “be interpreted strictly to create a demanding standard.” In Sutton v. United Airlines, 527 U.S. 471 (1999), the court held that mitigating measures, such as medication and assistive devices, had to be taken into account when evaluating whether plaintiffs were substantially limited in a major life activity.

As a result of these two cases, and subsequent lower court cases, people with a variety of impairments, such as cancer, diabetes, epilepsy, mental illness and HIV and AIDs were unable to pursue ADA claims.

In 2008, Congress passed the ADA Amendments Act, which overruled Williams and Sutton and made clear that disability is to be construed in favor of broad coverage. As a result, judicial interpretation of the definition of “disability” has changed dramatically. Plaintiffs are now quickly establishing ADA coverage, allowing the courts to focus on the real issue — whether there was discrimination under the ADA.

 Accessibility in digital age

The Internet has been an invaluable resource for people with disabilities, giving them access to information and services that would have otherwise been unattainable. Unfortunately, many people with disabilities cannot navigate certain websites due to electronic barriers.

People who are blind can access electronic information through screen-reading software, which reads computer text aloud. However, screen-reading software is effective only if the information is formatted in a particular manner. For instance, screen-reading software cannot “read” an image unless a written description is tagged to the image.

People with other disabilities face similar barriers on the Internet. People who are deaf require captioned videos. Websites that require the user to manipulate a mouse, without providing keyboard alternatives, are inaccessible to some people with limited dexterity.

Congress enacted the ADA in 1990 before the Internet had become an important part of people’s lives. Consequently, the ADA does not reference the Internet or websites, and courts have varied widely on the ADA’s applicability to the Internet.

The Justice Department has stated that it soon will be proposing rules on the ADA’s applicability to the Internet. These rules will provide much-needed guidance and uniform standards.

Given the critical role of digital information, ADA coverage of the Internet would further extend the access and inclusion that people with disabilities have obtained during the past 25 years.

Barry C. Taylor is the vice president for civil rights and systemic litigation at Equip for Equality, and can be reached at (312) 895-7317 or barryt@equipforequality.org. For more information about Equip for Equality, go to equipforequality.org and for more on the 25th anniversary of the ADA, visit www.ADA25Chicago.org.