The Unintended Consequences of the Americans with Disabilities Act
Research Paper
Introduction
The need to provide equal opportunities in areas of employment, recreation and in healthcare among the USA population facilitated the establishment of Americans with disabilities Act (ADA) in 1990. The major proposals in the implementation process of the Act was to mitigate instances of discrimination against disabled people by eliminating architectural, communication, and policy barriers through federal enforcement, private litigation and disability community education (Arlene, 1992, p. 23). The view of the public on the implementation of the Act was that ADA would cause positive impact in the lives of the disabled groups in different areas alongside enhancing social integration.
As a new creation and enforcement within the public domain, the Act though vital towards fulfilling the interests of one group was objected to face numerous concerns in its implementation process (Arlene, 1992, p. 23). According to the US Controller for Internal Affairs, the government would face poor voluntary implementation of the Act due to difficulties in obtaining accommodation for the disabled groups in various work places. Such misfortunes would be the major impediments and the government had to respond prior to implementation of the Act in order to normalize public response towards the Act (Arlene, 1992, p. 25).
Historical Development
The 1990 Americans with disabilities Act was established to ensure the protection of the physically challenged against discrimination. The federal government would only achieve this through by eliminating architectural, communication, and policy barriers through federal enforcement, private litigation and disability community education (Arlene, 1992, p. 25). Americans with Disability Act (ADA) had a positive influence in many areas but at the same time raised numerous concerns in putting it to effect. For instance, voluntary implementation of act faced difficulty in obtaining accommodation in the workplace and this still exists as the major impediment (Arlene, 1992, p. 29).
Initiation of ADA began with the increase of human right activism right after the race and class discrimination debates. The subject of inclusivity was expanded to include the American disability community after several issues of its concern raised and later introduced in the Congress (Arlene, 1992, p. 32). Activists used the disability rights movement to create awareness to America’s public and politicians of injustices that disable people were facing. Section 504 of the 1973 Rehabilitation Act was the first historical legislation to recognize disabled people as minorities rather than their physical state preventing them from being employed (Arlene, 1992, p. 32). Prior to the law being enacted, disabled persons were considered as the unfortunate in the society. Nevertheless, Section 504 recognized that such discrimination is not from their self-physical inability but the discrimination against those people with disabilities (Arlene, 1992, p. 32). Furthermore, it allowed them be categorized as minorities and hence requires particular attention and help depending on severity of their disabilities. Even though there are varying conditions of disability, they all face similar discriminations thereby needed protection beyond their basic civil rights (Arlene, 1992, p. 37). The inclusivity and recognition as a minority of the physically challenged was a great step in disabled deliverance from discrimination based on earlier societal segregations. This would put a halt to violation of their rights. ADA proved to be the movement to applying these basic rights to varying people with different disabilities.
Section 504 becomes significant in the accomplishment process of ADA. Section 504 defined the term disability, explaining in details what it takes one to be considered disabled. It further explained that persons with disability should be categorized as minority with respect to the law. This section marked the beginning of a long process of enforcing legal framework to eliminate disability discrimination. After its introduction, the legislators had to exploit the uniqueness in discrimination against the disabled and what it meant to be discriminated against disability, which occurred until May 4, 1977. Discrimination against the disability appeared to be trickier than it was with the case of discrimination against race and sex (Arlene, 1992, p. 43). There existed difference between the physical ability of an individual and the mental ability of the individual. Some disabled had the physical ability but were denied chance because being partially able while others posted the knowledge and mental ability but totally lacked the physique to handle the duties. These instances made it difficult to understand the concept of disability (Arlene, 1992, p. 23). On the other hand, the legal commissions concerned had a role of ensuring significance disabled people were getting the meaningful protection targeted. In many states, it lasted for days and in severe case even for 28 days to pass this Act. There was tremendous effort by the activists and disabled community to have the act passed into law. However, there were attempts to de-regulate the Section 504, a move that was greatly opposed the disabled representatives in the houses and activists. The passing of Section 504 gave the foundation for the development of the ADA during the Bush administration that put which put Section 504 into implementation by proving for non-discriminative education.
With the passing of Section 504 in 1977, the government embarked on reinstating civil rights protection that was taken away by the court decisions. Essentially, the law required the combined efforts of council of the Disability society In 1984, the Grove City V Bell case, the representatives of the disability community had to work with woman’s groups to build civil rights legislation. Later on, in 1988, there was another coalition effort between disability groups and civil rights community to amend Fair Housing Act, which was the first time disability anti-discrimination provisions were included. Upon these developments, Section 504 played a significant role in making decisions in court regarding disabilities (Arlene, 1992, p. 49). For example, Section 504 was used in a case Southeastern Community College V. Davis. In the beginning of 1980s, soon after Section 504 being passed, Southern stern Community College v. Davis was recorded as the first court case and a ruling was made with reference to Section 504 (Arlene, 1992, p. 53). This showed great concern of the section regarding the process of making a decision and understanding of section 504. The case involved a woman who tried to access a nursing program with hearing disability (Arlene, 1992, p. 53). The court ruled that the woman was ineligible to be attending the school and was not qualified to perform such duties with hearing disabilities. In this case, the court failed to take into account discrimination to exclude based on disability as stated in Section 504. This ruling was clearly discriminating this woman for having hearing disability since that was the only reason why the school did not accept her. According to 504, the institution was required to assist her for her disability and no such ruling should have been from the case (Arlene, 1992, p. 56). After this case, attention was given to the 1977 HEW regulations, which involved understanding of Section 504 and its application in court rulings. Consolidated Rail Corporation v. Darrone was the second case given consideration of Supreme Court. To prevent such lack of understanding and mistaken ruling from happening again, the Disability Rights Education and Defense Fund educated 63 nationals, state and local organization regarding civil rights of disabled person. In addition, they incorporated court in what they termed as discriminatory employment policies and showed the kind of concerns that was raised by people with disability in their workplace (DeLeire, 2000, p. 99). During this court ruling DREDF worked closely with the court to make sure that they identified the requirements for companies regarding their employment of disabled people and the kind of responsibilities they hold which was covered by 1977 HEW regulations in Section 504. After these court cases, 1977 HEW and Section 504 became basis for courts in making decisions regarding disability and employment. Some of the rights recognized in court included the coverage of anti-discrimination provisions to all airlines, right of parents to recover attorney fees under the Education for handicapped children’s act, and many others.
ADA was first introduced in 1988 by the NCD that was among the Federal agencies appointed by President Reagan. Weicker as one of the senators and Coelho as a representative represented the hundredths Congress in April 1988 when the legislation was heard for the first time. Upon introduction of the bill, the disability community stepped forward to educate persons with disabilities to support this act (DeLeire, 2000, p. 99). The effort of passing the act required disabled people to voice their discomfort and discrimination, became more clear to the public the needs for protection for these people and them being minority who need assistance and protection, along with effort of the disabled people participating to raise awareness.
Strengths
As stated by the American federal government, enforcement of ADA is viewed as one of the achievements of the government. Moreover, today, USA is celebrating a dominion of success that accounts to equable and rigorous application of the Act. Some observable strength as far as application of the Act include the ability to provide protection to people with disabilities against issues attached discrimination in different social areas such as in workplaces, getting access to public accommodations as well as accessing telecommunications (DeLeire, 2000, p. 104). The change in living styles of the disabled groups leans specifically towards the improvement in telecommunication. For example, the use of playing buttons on crosswalk that speaks directly to pedestrians has significantly facilitated communication among the deaf and people with hearing problems (DeLeire, 2000, p. 104). In addition, the act compels construction companies to create wider space in roads, make spacious parking lots in curb cuts, and within national parks for conveniences of the disabled. Significantly, the Act focused on recreational places such as golf course, swimming pool, amusement parks that had to change their infrastructure in order to assist people with disabilities and increase the ease of accessibility.
In light of ADA, Microtel Inn & Suite, which is an economic hotel chain, had to build rooms especially to accommodate people with disabilities alongside providing services that complement the interest of such groups. In order to make the services efficient and readily accessible, Microtel Inn & Suite train employees to serve the needs of the disabled people separately and distinctively. In other areas, the implementation of ADA shows improvements in Job Accommodation Network (JAN) services to the disabled. The Office of Disability Employment Policy (ODEP) of the US Department of Labor (DeLeire, 2000, p. 105) offers JAN as a service to the disabled. As an agency specialized in issues of disability, ODEP impacts on the lives of the disable by instilling skills and assisting the disabled groups in America to find jobs that matches their skills and levels of expertise. The agency exposes the disabled to different employers ranging from the public sector to private institutions with several job opportunities to choose from, getting immediate recruitment, training and work facilitations (DeLeire, 2000, p. 105). In various instances, the US government works through ODEP to ensure that the disabled get good accommodations in their work places to improve on job flexibility while reducing cases of limited performance and inadequate output.
The Act has given the disabled groups in the American society to feel included in different areas ranging from economic participation, social integration to recreational services. The role played by the disabled in enhancing economic performance of the nation is a measure of patriotism and nationalism. This process enables the disabled groups to identify their talents and capabilities which are converted towards productive activities. On social integration, ADA is critical in ensuring access to different social areas within USA. Today, disabled people can freely access areas of entertainment such as clubs and restaurants.
Weaknesses
Other than the mentioned strengths, ADA faces important shortcomings and therefore requires adjustments and enhanced implementation processes. With proper implementation procedures, the Act is considered efficient and highly effective towards achieving some of the stated objectives (DeLeire, 2000, p. 105). Some of the shortcomings revolve around the effectiveness of the law in areas with small businesses such as restaurants, hotels, offices, and in provision of rental services (DeLeire, 2000, p. 107). This would mean that one part of the economy is seriously undermined and not considered in the implementation processes.
On similar account, the law is discredited by social perceptions towards disabled people and the levels of conflicting ideas on the best approach that can be used to make the society understand the need of the disabled groups (DeLeire, 2000, p. 109). In other words, the law concentrates more on issues of employment opportunities to the disabled groups in the American society while other areas of discrimination still remain a problem to focus on. The US government should therefore consider other areas like provision of equal and inclusive education services that covers all the areas of professions. The policy to enhance learning processes would help in boosting skills and expertise among people with disabilities and making them become competitive in different fields of employment.
Apart for the mentioned opportunities, the US government under this provision seems to alienate the interest of other groups in the society who faces significant discrimination. The social gaps in American society continues to widen those facing serious consequences are the poor section of the community. ADA is a provision that do not take into account the interest of other members of the population except the rising needs of people of disability.
The law is criticized on the basis that it is expensive to implement and remains a burden to the budgeting committee. The government takes full control of the Act and every funding is a complete process of the government. The government seems to concentrate more on the execution process of ADA with little concentration on other areas of public provisions. Since the government is receiving opposition, the implementation effort that the US government had initially has recently reduced rendering the Act almost ineffective. The government in late 2012 had to revoke the law and put more emphasis on equity in different areas of employment, both in private and in public.
Proposed enhancements to the legislation
Looking at the misconceptions attributing to slowness in implementation of ADA, the US government through the Advisory Board must ensure proper education and training to the staffs entrusted with the lives of the disabled people (Letter of Transmittal, 2007, p. 01). The main aim of this training should be to get rid of the general public’s stereotype and tendency of categorizing disabled people as incapable of providing for themselves of the entire society (Letter of Transmittal, 2007, p. 01). The American society has no right to treat the disabled people as a separate group and not part of the population. In this view, the public should learn to deal with people with disabilities and companies, firms and businesses should consider people with disability as potential customer and fulfill the needs for good accommodation and enhanced communication.
Companies and other employers must be aware that discrimination towards the disabled can lead to poor work performance (The U.S. Equal Employment Opportunity Commission, 1993, p. 13). this means that employers should at all times be encouraging alongside providing a good work environment as a way of ensuring that the disabled groups are included in the production process (Letter of Transmittal, 2007, p. 01). According to our understanding of the unfulfilled demands of the disabled groups, the biggest challenge revolves around filling the gap of false assumption made by the by looking at the disabled on the side of negativity and judging them as incapable of performing particular tasks (Letter of Transmittal, 2007, p. 02). The public should stop focusing on people’s disability as weakness and use such as a factor to alienate the disabled from other social groups. Concurrently, these are some of the fundamental issues that the US government must address in order to fulfill the nation’s goal of equal opportunities. At a narrower level, solving these social problems will allow the government has a good chance for the implementation of ADA.
Essentially, there is still need for improving recruitment processes and employment of people with disability (Letter of Transmittal, 2007, p. 02). Among the issues to be addressed, include ensuring consistent hiring efforts of disabled people in different workplaces. Even though ADA has a guideline for companies to follow in hiring disabled people, many employers disregard such guidelines and latter clam that they were not informed earlier enough so that they could follow such guidelines. The general view therefore is that, the government should put in place stricter rule to make sure that companies develop within themselves strategies for hiring disabled people in their workplaces.
At higher levels, the government should make changes in public and private transport systems. Even though there has been success in achieving improvements in use of transportation for disabled people, there still needs more changes in local areas and increase in funding to facilitate implementation of the proposed changes. Some areas that still needs improvements are lack of accessibility to privately owned road buses, accommodating oversized wheelchairs as well as putting to an end announcements of fixed-route bus systems. The public opinion is that lack of public accommodation is a problem but the biggest problem lies on the fact that law enforcement is still lacking in businesses attached to transportation. Although there are two ways through which workers can claim their rights, it would take much more effort than if the companies were required to follow the law enforcement.
Another challenging part is that disabled people are not well informed of their rights and bringing lawsuit against their discriminators does not frequently happen due to long, tedious procedure involved. The same argument is raised concerning the efforts of the government to provide the necessary telecommunication services. As the US government started to provide telecommunication relay services to improve standards of communication using modern technology, which are currently available, many consumers of the services seem unaware of the relay of such services. The lack of knowledge due to information asymmetry prevents the disabled people benefiting from the high-tech relayed services (Martin, 2004, p. 36). In addition, there are no federal communication assistances available for the disabled people in case they are faced with problems of non-conformity and inability to use high technology services.
Conclusion
In general, the US government aims at improving the general welfare of the disabled groups and in order to address the problem of implementing ADA, the Federal Government needs to be more serious at the enforcement stage while ensuring a wider information coverage regarding the importance, implications and consequences attached to ADA. Initially, the government should begin by clearly identifying who should be considered as disabled within the society (Martin, 2004, p. 39). Similarly, the government should define Title III which requires proper identification and execution plan for those small businesses that do not follow the recommendation of ADA for assisting disabled people with accommodation. Still on the implementation process, it would be necessary for the government to educate the public and companies about raising awareness of treating disabled people as part of the society and not seeing their disability as a barrier for performing tasks (Martin, 2004, p. 39). Equivalently, it would be essential for educating disabled people about their rights and what they should be able to claim as their legal rights in a workplace and how to relate with the public. In order to keep in check with whether the businesses and companies are conforming to the Act, the government should establish an agency to monitor and do regular checkups on the progress (Martin, 2004, p. 44). The US government should also put in place a compensatory damage as recommended under Title III in addition to establishing a statutory minimum damage amount in case a particular business fails to follow Title III requirements. Also for transportation provisions, the US government should provide more funding and resources to widen easier accessibility for disabled people.
From the forgoing discussions, ADA focuses on empowerment, independence and inclusion of disabled people in community life by making reasonable accommodation for their needs. It was a great step forward in recognizing disabled people as segregated and that they needed federal help to ensure protection and fulfillment of the needs of the disabled (Martin, 2004, p. 44). ADA is considered one of the most comprehensive federal civil-rights statutes to protect disabled people by including laws regarding employment, access to state and local government programs, telecommunications, and miscellaneous provisions. With these specifications, ADA sets a foundation for disability policy that grants civil rights orientation for disabled people.
References
Arlene, Mayerson, (1992). The History of ADA: A movement Perspective http://dredf.org/news/publications/the-history-of-the-ada/
DeLeire, Thomas (2000). The Unintended Consequences of the Americans with Disabilities Act. Regulation 23 (1): 21–24. http://en.wikipedia.org/wiki/Americans_with_Disabilities_Act_of_1990
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http://www.adainfo.org/content/history-ada
Letter of Transmittal, (2007). Implementation of the Americans with Disabilities Act: Challenges, Best Practices, and New Opportunities for Success. White House: Washington , DC 20500. http://www.ncd.gov/publications/2007/July262007
Martin, Gould, Ed.D (2004). Commentary: Assessing the Impact of the Americans with Disabilities Act. U.S. National Council on Disability: Disability Studies Quarterly Spring 2004, Volume 24, No. 2
The U.S. Equal Employment Opportunity Commission, (1993). Facts about the Americans with Disabilities Act, retrieved 21st April 2014. http://www.eeoc.gov/facts/fs-ada.html.