The American Disabilities Act

Joseph Bragg is a "regular Joe" from Summers County. A Korean War veteran, he has lived in West Virginia all his life. When he had to go to the county courthouse in Hinton over a property dispute, he never thought that he would be filing a bigger suit of his own later that day. Since the city has many historical buildings, the courthouse being one, it was not accessible to people with disabilities. The courtroom was on the second floor and there was no elevator, only stairs to reach it. Mr. Bragg was faced the indignation of being carried up two flights of stairs by the Deputy Sheriff and another man because he used a wheelchair. However it was only until later, when he had to use the restroom, and had his son carry him to the first floor, only to find that his wheelchair would not fit through the door, did he get angry. He decided to file a complaint with the Department of Justice (http://www.usdoj.gov/crt/ada/sumstor.htm).

The American Disabilities Act, passed in 1990, has helped many people like Joe gain access to their communities. They no longer face the discrimination, segregation, and alienation of people with disabilities in years past. When the Rehabilitation Act was passed in 1973, it was a step towards, but not the complete path towards equal opportunity, accessibility, and inclusion in everyday society for people with disabilities. In the following pages, cases prior to and after the ADA will be discussed, including the still present need for public places to become accessible to people with disabilities.

Prior to the passage of the American Disabilities Act, Congress passed the Rehabilitation Act of 1973. This includes a section on the Employment of Individuals with Disabilities. This section states that "Each department, agency, and instrumentality (including the United States Postal Service and the Postal Rate Commission) in the executive branch shall, within one hundred and eighty days after September 26, 1973, submit to the Commission and to the Committee an affirmative action program plan for the hiring, placement, and advancement of individuals with disabilities in such department, agency, or instrumentality. Such plan shall include a description of the extent to which and methods whereby the special needs of employees who are individuals with disabilities are being met" (http://www.eeoc.gov/policy/rehab.html). This was clearly a huge step in the way of making society accessible for people with disabilities.

A case that occurred before the passage of the American Disabilities Act in 1990 was City of Cleburne v. Cleburne Living Center (1985). The Cleburne Living Center, Inc. planned on leasing a building as a group home for the mentally retarded, and was told by the City of Cleburne that they would need a special permit and classified the building as a "hospital for the feebleminded" under a zoning ordinance covering the area. The Living Center then filed suit against the city alleging that the zoning ordinance violated the equal protection rights of the incorporation and of its potential residents. The District Court held that the ordinance was constitutional. The Court of Appeals reversed that decision saying that mental retardation was a "quasi-suspect" classification, and the ordinance was invalid because it did not further an important governmental purpose (http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0473_0432_ZS.html). This case put the rights of people with disabilities in the public eye again and enforced all aspects of the Equal Protections Clause.

On July 26, 1990, President George H. W. Bush signed the Americans with Disabilities Act into law. The act was meant to supplement the Rehabilitation Act of 1973 in further prohibiting discrimination based on disability. It is composed of five Titles including Title 1 which took effect July 26, 1992, which prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions and privileges of employment. Title 1 defines an individual with a disability as : "Has a physical or mental impairment that substantially limits one or more major life activities; Has a record of such an impairment; or Is regarded as having such an impairment." It also defines reasonable accommodation as: "Making existing facilities used by employees readily accessible to and usable by persons with disabilities. Job restructuring, modifying work schedules, reassignment to a vacant position; Acquiring or modifying equipment or devices, adjusting modifying examinations, training materials, or policies, and providing qualified readers or interpreters." The employer, however, is required to make an accommodation to the known disability of the applicant or employee if it would not impose an "undue hardship" on the operation of the employer's business. The ADA also says that employers may not ask job applicants about the nature or severity of their disability. The U.S. Equal Employment Opportunity Commission issued regulations to enforce the provisions of the ADA on July 26, 1991. These originally took effect on July 26, 1992, and covered employers with 25 or more employees. On July 26, 1994, this requirement dropped to include employers with 15 or more employees (http://www.eeoc.gov/facts/fs-ada.html).

The Americans with Disabilities Act was a huge accomplishment a long time coming for people across the country, but cases afterward have shown that there is still work that needs to be done to make this country accessible for all. One of these cases is Board of Trustees of the University of Alabama et al. v. Garret et al. Patricia Garrett was a registered nurse who was diagnosed with breast cancer and underwent a lumpectomy, radiation treatment, and chemotherapy. Her treatments required her to take substantial leave from work; however when she came back, her supervisor informed her that she would have to give up her Director position. She then had to transfer to a lower paying position as a nurse manager. She and Milton Ash sought money damages under Title I of the ADA, which prohibits the States and other employers from "discriminating against a qualified individual with a disability because of that disability...in regard to ...terms, conditions, and privileges of employment." The District Court sided with the state of Alabama stating that the ADA exceeds Congress' authority to abrogate the State's Eleventh Amendment immunity. The Eleventh Circuit Court of Alabama reversed that court's decision saying that the ADA was perfectly within its bounds (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=99-1240). The case's decision was a setback for the purpose of the ADA because of its indecision by the courts, including the Supreme Court. It shows that even after the passage of such all-inclusive legislation, people with disabilities were being discriminated against.

In 1999, the National Federation of the Blind sued AOL because of its lack of accessibility. Nine defendants filed a suit against AOL for not being fully accessible to be independently used by individuals who are blind. AOL failed to redesign its internet service to permit the blind to use it through screen access programs and this violated the full and equal enjoyment and participation provisions of the ADA. The plaintiffs had a prayer for belief that the court would "(a) Declare that Defendant's actions and inactions with respect to its AOL internet service violate Title III of the ADA, (b) Enjoin Defendant from continuing to violate the ADA and order Defendant to redesign its AOL service and take such other and further steps as are necessary to allow independent access through screen access programs by persons who are blind; and (c) Grant Plaintiffs such other relief as the Court deems just, equitable, and appropriate, including an award of Plaintiff's reasonable attorney's fees, litigation expenses and costs" (http://www.education-rights.org/homenfbvaol.html). A case like this shows that even modern technology can be put to the test of following the "rules" of the ADA. This is probably a bigger accomplishment than the founders could have hoped for back in 1990.

Acknowledgement of the lack of accommodation and accessibility of public places for people with disabilities has come a long way since 1973 and Joe Bragg will be one who can tell you about the changes made since then. After he filed his complaint with the DOJ, Summers County started on a 36 month "renovation". So far they have made a curbside ramp and handicap accessible parking to the courthouse. They also hold cases in an accessible room if a party with a disability requests. However, much is still needed in the way of change. An example of this is my old college campus. Few of West Virginia Wesleyan's buildings are accessible and there are almost no signs giving directions to them around campus. Most of the problem with making these buildings accessible is that they are older and harder to renovate while keeping the essence of the building intact. Having experienced a friend's struggle to go to class and live in a certain dormitory because she uses a wheelchair brings the ongoing struggle for inclusive disability rights to a personal level. On a bright note, my alumni sorority Alpha Gamma Delta has set up a committee to make some accessibility changes around campus and hopefully will make progress soon. The American Disabilities Act has had many implications on all of our lives, whether we have disabilities or not, and will continue to do so, until all public places are accommodated and accessible.

"Board of Trustees of the University of Alabama et al. v. Garrett et al." FindLaw For Legal Professionals. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=99-1240.

"City of Cleburne, Texas v. Cleburne Living Center, Inc. (No. 84-468)." Legal Information Institute-Supreme Court Collection. http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0473_0432_ZS.html.

"Facts About the Americans with Disabilities Act." The U.S. Equal Employment Opportunity Commission. Last Modified on January 15, 1997. http://www.eeoc.gov/facts/fs-ada.html.

"Summers County, West Virginia." Department of Justice Website. Last Updated July 31, 2002. http://www.usdoj.gov/crt/ada/sumstor.htm.

"The Rehabilitation Act of 1973, Sections 501 and 505." The U.S. Equal Employment Opportunity Commission. Last Modified on January 15, 1997. http://www.eeoc.gov/policy/rehab.html.

"United States District Court For The District of Massachusetts." http://www.education-rights.org/homenfbvaol.html.

"U.S. Constitution." FindLaw For Legal Professionals. http://caselaw.lp.findlaw.com/data/constitution/amendments.html.