The Americans with Disability Act:
Accomplishments and Challenges
Richard K. Scotch, Ph.D.
Lecture for Japan Disability Forum (July 6, 2012)
First of all I would like to thank you for the invitation to talk with you today. I have been studying disability rights laws in the United States for over thirty years, and I am very happy to have the opportunity to share with you some of my observations on what we have accomplished in the U.S. with the Americans with Disabilities Act and similar laws, as well as what we have been unable to accomplish with changes in law and public policy.
As is the case in most societies around the globe, people with disabilities in the U.S. have faced many barriers to participation in everyday life. Many Americans with disabilities have difficulty being hired, or can only work in jobs that have very low wages, few employee benefits, and little opportunity for advancement. As a result, disabled Americans typically have much lower incomes than people without disabilities, and must live in inadequate housing and in neighborhoods without needed services.
Many Americans with disabilities have been unable to receive public education, because of negative attitudes, discrimination, or inaccessible facilities. Many disabled Americans also have had difficulty in obtaining the public services they need, such as transportation or access to health care, or in accessing the technology needed to be a member of modern society. Some Americans with disabilities have not been allowed to vote, or to participate in civic life.
Since the rise of the industrial era in the United States, many disabled Americans have been confined in cruel institutions that have denied them the freedom to live in the world, taken them away from their families and communities, and kept them in terrible and oppressive conditions.
The British disability studies scholar Michael Oliver has written that “All disabled people experience disability as social restriction, whether those restrictions occur as a consequence of inaccessibly built environments, questionable notions of intelligence and social competence, the inability of the general population to use sign language, the lack of reading material in Braille, or hostile public attitudes to people with non-visible disabilities.”
Assumptions about how people perform everyday tasks, or about what people can and cannot do without assistance, are built into human environments in ways that can create barriers for those who do not conform to those expectations. If architecture and technology are based on limited images of so-called “normal” human functioning, they constrain individuals who must pursue alternative ways of performing various tasks. Stairs can limit the entry of people who use wheelchairs, printed words limit the access to information of those who blind. Similarly, organizational routines and public policies can limit participation through their assumptions about “normal” functioning. Fixed work schedules may exclude people whose conditions make it difficult to begin work early in the morning, or who must take more frequent time off. Eligibility requirements for public assistance may assume that potential beneficiaries are disabled and cannot work, or can work and therefore are not disabled. So people with disabilities are often marginalized by the constraints of a constructed social environment in which assumptions of the inability to participate become reality. But we have learnt that this is not necessarily the life has to work.
In response to these conditions, Americans with disabilities and their allies organized themselves into advocacy groups to eliminate the stigma and discrimination they face in everyday life, and to seek better conditions and the opportunity to participate equally in all aspects of American society - work, family life, education, politics. Some of these improvements can be achieved through educating everyone about how disability may simply mean doing things differently, but that it does not mean a lack of ability. But many improvement have required changes in the law.
My research over the past thirty-five years has been about how Americans with disabilities have created a social movement to change law and public policies to promote the full participation of people with disabilities. This social movement has its roots in groups of disabled people started as early as the nineteenth century, when deaf people and disabled veterans formed organizations to help themselves. In the 1930s, disabled people who were unemployed during our Great Depression organized to seek equal access to government anti-poverty programs. In 1940, blind Americans created a national organization led by a professor of law, Jacobus tenBroek, to demand equal rights. Professor tenBroek is best known for writing of legal article "Rights to live in the world".In the 1950s parents of children with intellectual disabilities formed groups to challenge the exclusion of their children from local public schools. By the 1960s, young adults with disabilities were forming self-help groups on college campuses and in veterans and rehabilitation facilities, and in the 1970s independent living centers were created by disabled people in cities across the United States where people with disabilities helped each other to develop the skills, resources, and social supports to live in the broader community.
This social movement of disabled Americans was made up of people representing many different types of disabilities, and from many different communities. It is not surprising, then, that members of the movement presented diverse multiple goals, some of them specific to particular types of access or services, and others more general. One important goal was to pass laws at the local and national levels of government to prohibit discrimination on the basis of disability. A number of localities passed anti-discrimination laws in the 1960s and 1970s. The first national disability rights law was part of the federal Rehabilitation Act. It prohibited discrimination in any activity funded by the national government, such as schools, hospitals, government offices, and public transportation facilities. This law was passed in 1973, and should have gone into effect within a year or two, but was only enforced after a series of protests by disabled people created a public demand for government action.
Even after the law took effect, it was not well known or understood, however, and it often was not vigorously enforced. Many places remained inaccessible until legal action was taken against them, and the government did not invest substantial resources in enforcement. More significantly, only entities receiving government funding were affected by the law, and so most private employers were not covered, and many places of business such as shops, restaurants, and theaters did not have any requirement to offer access to disabled patrons.
In 1986, a presidentially appointed advisory council issued a report titled Toward Independence which was a major step toward the ADA. Based on a specially commissioned survey of Americans with disabilities, the report asserted that discrimination still was a major barrier to social participation and employment in particular for disabled Americans. What was needed was a strong human rights law that made a strong statement of a societal imperative, that discrimination against people with disabilities would no longer be tolerated in the United States. Following this report, disability advocates politically mobilized to support a new broad anti-discrimination law. A coalition was created that reached across different types of disability, as well as both conservative and liberal political philosophies. As a result, the Americans with Disabilities Act was approved by the U.S. Congress by large majorities, and was signed into law by President George H.W. Bush on July 26, 1990.
The ADA is a comprehensive commitment to eliminating discrimination on the basis of disability in private employment, public services, public accommodations, and telecommunications. However, beyond these specific requirements, disability advocates hoped that the larger impact of the ADA would be to further full social participation for tens of millions of Americans with disabilities.
The rationale for the ADA was that many of the problems associated with having a disability were the result of a socially constructed environment which arbitrarily and perniciously excluded or limited the social participation of people with physical or mental impairments. The law rejected the idea that disability inevitably meant being unable to live independently or to participate in everyday economic, political, or social life. Disability community advocates hoped that the ADA would be an important step in redefining how disability is constructed in public policy, and ultimately in public life.
By characterizing the social isolation and enforced dependency of people with disabilities as the result of social and political choices rather than as inevitable results of impairment, the social model suggests analogies between the social status of people with disabilities and other marginalized groups.
The American sociologist Paul Higgins wrote of the ADA shortly after its passage,
Rather than (primarily) looking to individual characteristics to understand the difficulties experienced by people with disabilities, rights encourage us, even require us, to evaluate our practices that may limit people with disabilities. Rights empower people with disabilities. With rights, people with disabilities may legitimately contest what they perceive to be illegitimate treatment of them. ... No longer must they endure arrangements that disadvantage them to the advantage of nondisabled citizens
Similarly, Jane West wrote that:
The ADA is a law that sends a clear message about what our society's attitudes should be toward people with disabilities. The ADA is an orienting framework that can be used to construct a comprehensive service delivery system. ... The ADA is intended to open the doors of society and keep them open.
It is difficult to measure the extent of voluntary actions taken in response to the law, since the U.S. government does not adequately measure compliance. Many employers and public accommodation providers have made their facilities more accessible, and public commitment in the U.S. to ensuring access appears to be high. Technological changes, activism by the disability rights and independent living movements, and the effects of other prior American laws also have helped to give people with disabilities more public visibility, and (perhaps) greater public understanding of the experience of disability. Nevertheless, the Americans with Disabilities Act has been a very important catalyst for social change by the disability community that advocated for it, the business community and others that are subject to its requirements, and to many policy makers and their observers in the mass media.
However there has been problems. While the ADA defines disability very broadly, a series of early judicial rulingslimited its coverage to a far smaller group than was intended by its framers. The definition in the law included anyone with a functional limitation based on impairment, a history of impairment, or who was regarded as having an impairment. To many conservative judges, this was too large a group, and even many people with obvious disabilities were not allowed protection under the ADA if the judge believed they were unable to work. Others were excluded from protection against discrimination because, since they were working, they were not considered to be truly disabled.
According to Professor Robert Bergdorf, the author of the original bill that would become the ADA, court decisions in the two decades following the ADA’s passage have perpetuated the incorrect concept that people with disabilities are some special group of individuals who are “drastically different from others and, therefore, should be treated differently and given special protection” rather than as “regular Janes and Joes” who despite their impairments are not essentially different from other people. He concluded that “in the name of restricting this special treatment to the supposed truly deserving beneficiaries, obstacles have been erected that have kept many of the supposed core group along with many other citizens from the protection these laws were enacted to provide.”
In particular, these court rulings excluded individuals from the ADA's protection from discrimination if their impairments could be corrected with medication or devices. The impact of these rulings was that while correctable impairments may lead to discrimination, such discrimination was permissible under the law. Another expert involved in drafting the ADA, Professor Chai Feldblum, has pointed out that these court decisions "create the absurd result of a person being disabled enough to be fired from a job, but not disabled enough to challenge the firing."
Responding to disability activism in an election year, Congress passed the ADA Amendments Act of 2008, which were signed into law by President George W. Bush. The new law reaffirmed the broad definition of disability from the original statute and made several technical changes in the statute that clarified its use in addressing discrimination against people with disabilities. While there is still some uncertainty about the long-term impact of this new version of the ADA, the revision does seem to have resolved the problem faced by many disabled people in seeking help with discriminatory practices, and to allow the courts to focus on the circumstances of discrimination rather than on who should be considered to be disabled.
In its first 22 years, the ADA appears to have fallen short of its more optimistic goals of fundamentally changing the lives of most Americans with disabilities. In the aggregate, people with disabilities are still disproportionately unemployed and underemployed, and their incomes are below those of people without disabilities. While survey data suggests that most Americans are supportive of the ADA's goal of inclusion and nondiscrimination, stigma that constrains individuals with disabilities persists in individual attitudes and institutional processes.
Further, the ability to participate of Americans with disabilities is constrained by many indirect factors. People with disabilities tend to have lower levels of education and training due to historical exclusion from schooling, making them more vulnerable to trends in our increasingly post-industrial labor market. Many people with disabilities also are disadvantaged in the labor market by work disincentives built into benefit and insurance programs, and by inadequate systems of social support. Inadequate health insurance coverage for chronic conditions create barriers to employment, as do difficulties with transportation.
People with disabilities are also affected by rapidly changing economic and technological conditions. Some trends such as working from home through the Internet or improved communication software, have increased access to jobs. However, the rapid pace of many jobs and the pressure to control labor costs in response to global competition may make work less accessible to the many disabled people seeking employment. In the United States, with its private health insurance system, the fear of high medical expenses associated with disability may discourage some employers from hiring disabled workers.
The social exclusion of people with disabilities will not be resolved by the ADA on its own. Access to good jobs, health insurance, personal assistance, communitybased services, and accessible technologies may be enhanced but are not guaranteed by laws such as the ADA. We must share willingness to make opportunity available and to invest resources to allow people participate. Antidiscrimination laws may be necessary but are not in themselves sufficient for major institutional change.
Furthermore, employers, and the judges who enforce the law, are likely to share prevailing ideas about what disability is and what it means. The ADA’s impact is likely to be modest as long as most people believe that having a disability is associated with incapacity and dependence. On the other hand, if a more positive view of disability is held by many, then an anti-discrimination law may become more effective.
If we look at employment patterns for Americans with disabilities, we actually find a complex picture. Many disabled people have found employers more willing to provide workplace accommodations, but many employers are still reluctant to hire workers with disabilities. The overall employment rate for Americans with disabilities has not increased as the result of the ADA, and it is currently about half of the employment rate for nondisabled Americans.
Some experts believe the ADA may be more helpful to disabled people already working, and particularly those with high levels of education, than to disabled people who are unemployed or who lack education and technical skills. Some employers may have used the requirement to provide accommodations to disabled workers as an excuse not to hire anyone with a disability.
However, the ADA needs to be examined as a commitment to ideals of inclusion in order to understand its full significance. While its direct effects in assisting people with disabilities who know how to use its protection are important, so are its broader indirect effects of educating society about the exclusion of disabled people and showing how they can effectively participate.
Can a law such as ADA create a more inclusive environment in work and public life? Some changes, such as building ramps or using more accessible computer and telecommunication technology, may be achieved with adequate resources. But with today’s economic conditions, the competition for resources will be intense. However, many changes require different attitude rather than just spending money. Everyone in the sociey need to learn potential of people with disabilities having more participation. For antidiscrination law to have impact, people must learn about disability. So while focusing changing the laws is inportant, but it is not enough.We must also change society.
The Americans with Disabilities Act has been and continues to be a crucial protection for people with disabilities in the United States. Since the law passed More people with disabilities are working, receiving educations, and are present in popular culture and civic life. The ADA’s mandates have led to significant expansion of access to the social, economic, and political mainstream. However, even with legal protection from discrimination, it would be very difficult to argue that people with disabilities have achieved social or economic equality as the result of ADA, or that having a disability is no longer a relevant factor in the life chances of many individuals.
But that might be far too much to expect from a civil rights law. People with disabilities face a variety of barriers to social participation, including limited human capital, social isolation, and cultural stereotypes. While many of these can be directly or indirectly linked to discrimination, none of them will be easily changed by a single law. Fundamental and far-reaching social change will be necessary for people with disabilities to enjoy full access to American society.
What is the significance of the American experience with the ADA for other nations? In many parts of the world, nations have signed and ratified the U.N. Convention and its call for recognition and full equality for persons with disabilities, and for reasonable accommodation of their differences in education, justice, health, and other forms of economic, social, and political participation. The concerns I have expressed should not suggest any lack of support on my part for this important statement of principle. Rather, I believe that the Convention is a critical affirmation of the status of people with disabilities that should be universally supported.
However, we must not stop at ratification of the Convention. Rather, people with disabilities and their allies must work collectively toward the realization of the rights stated in the Convention. Such work will not be easy in any nation, even those with economic resources and a commitment to democracy. But we must continue our efforts to educate our fellow citizens about the value of people with disabilities, and to make sure that we adopt the policies and practices necessary to the attainment of the values stated in the Convention.
An essential part of this work will be the participation of people with disabilities themselves. Disabled people themselves can help the rest of society to understand the negative effects of the barriers that exist all around us, and can also help to point out the most effective ways to eliminate them. People with disabilities cannot be the objects of policies to protect them, but rather must be central in creating such policies. Thus the slogan of many disability advocates around the world has become Nothing About Us Without Us. Without such participation, the Convention and any nation’s anti-discrimination laws will not achieve their desired result, the full inclusion of people with disabilities across the world.
Thank you again for the opportunity to speak to you today. I will try to answer any questions you have about my remarks today.