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Experts discuss highs and lows
[Editor’s note: Rehab Continuum Report asked several experts on the topic of the Americans with Disabilities Act (ADA) to discuss the legislation and its impact on rehab and people living with disabilities since the act was signed into law in 1990. In this question-and-answer report, the experts discussing the ADA are Shelley Kaplan, MS, CCC, a research associate and principal investigator at the Southeast Disability and Business Technical Assistance Center (DBTAC) in Atlanta; Curtis Edmonds, JD, an accessible information technology specialist with Southeast DBTAC; and Pamela Williamson, an assistant project director with Southeast DBTAC.]
Question: Next year marks the 15th year of ADA. During this time, how much has the ADA changed the way Americans perceive and accommodate people with disabilities, and do you have some examples of this change?
Kaplan: "This is the $64 million question. We have the National Organization on Disability’s Harris Surveys, done in 1986, 1994, 1998, and 2000; and it just released the latest of 2004 and concludes that progress is too slow and the gaps are still too large. But there have been some changes.
"The unemployment rate still is pretty low: More than one-third of people ages 18 to 64 with disabilities, compared to two-thirds of people without disabilities, have full-time employment.
"Although about one in five people with disabilities who are employed still encounter job discrimination; it has decreased over the past four years, somewhat. The types of job discrimination have changed dramatically. We see more accessible parking spaces, more curb ramps being built. We’ve seen more audible pedestrian signals on the street. We’ve seen a lot of thought going into the new stadium-style seating in theaters.
"That’s still a contentious issue: Even though it improves the viewing angles for everybody, stadium-style seating still congregates people with disabilities either in the front or back, so it doesn’t give them the same comfort as the rest of us. The Department of Justice continues to fight this battle."
Williamson: "One of the positive changes that we’ve seen is the fact that the Department of Justice has taken on a program called Project Civic Access, which has really highlighted the need for cities and towns to look at their overall disability policies as well as physical access. So this is addressing the many arenas across the nation, and they have come up with model settlement agreements.
"It has really helped to increase awareness as well as access in many areas.
"One city that has really taken this to heart is Nashville, TN — Davidson County. It self-reported as being noncompliant to the federal government, and really embraced the whole concept of making the whole city and county as accessible as possible in every area.
"It’s working closely with the Department of Justice to make sure it is fully compliant with the Americans with Disabilities Act in policies and procedures, as well as in access to buildings and everything. Information is available on-line at the Department of Justice web site at www.usdoj.gov/crt/ada/civicac.htm."
Question: Despite the progress, some court rulings in the past decade would appear to limit the ADA’s reach. Could you please elaborate on some of the more important rulings and how these impact the rights exercised by people with disabilities?
Edmonds: "There have been 18 lawsuits that have gone all the way to the Supreme Court. There have been over 1,000 decisions by lower courts, but the most important decisions and the ones that have a national range are done at the Supreme Court. A lot of these decisions deal with the definition of disability. In other words, which individuals are actually covered by the ADA?
"The ADA is different from other civil rights laws. Other civil rights laws cover the entire population, the ADA only covers individuals with disabilities, although it can cover individuals who have an association with someone with a disability, as well.
"The definition of disability in the ADA is an individual who has an impairment that results in substantial limitation in a major life activity, and that also includes individuals who are regarded as having such an impairment or individuals who have a record of such impairment.
"One example of a major Supreme Court case in this area is Sutton v. United Airlines. Sutton involved twin sisters who wanted to work as airline pilots for United Airlines. Both of the sisters were legally blind. However, they both wore eyeglasses; and with their eyeglasses, they had corrected vision that was good enough to pilot an airplane.
"United Airlines said that because their uncorrected vision was not good enough to pilot a plane that they would not employ them as airline pilots. The Supreme Court determined that even those two individuals were legally blind they did not meet the ADA definition of disability. They determined that what you had to do is look at individuals in their mitigated state.
"If you have an impairment and an impairment can be anything — everyone in their lives has some sort of impairment. It’s any disorder or disease or problem with a bodily system. But every impairment is not a disability, and if you have an impairment, you can take steps to mitigate that impairment. If you have poor eyesight, you can wear eyeglasses; if you have hearing loss, you can wear a hearing aid. All of these things are called mitigating measures because they lessen the impact of that impairment, and in many cases, they may keep it from becoming a disability.
"The regulations as they were originally written by the Equal Employment Opportunity Commission said that you look at people disregarding any mitigating measures, in what is called their unmitigated state. So you’d look at these two plaintiffs as though they never had eyeglasses, and then clearly they would have a disability because they wouldn’t be able to see. They’d have an impairment; and there would be potential limitation on their ability to see, and it would impact a major life activity.
"The Supreme Court said, That’s not appropriate, and that’s not consistent with how we interpret the ADA. You have to look at people as they are and make an individualized determination based on the actual limitations of actual people. . . .’ They determined that these two pilots did not have a substantial limitation in their ability to see when they were wearing their glasses, and that has a lot of impact for a lot of people, including people with mental illness who take medication; people with diabetes who take insulin; people with epilepsy who have all the different medications or different devices being used to control epilepsy; [and] people with learning disabilities who have developed different strategies and ways for them to be able to read and understand information. And all of these people with these various types of impairments might have been covered by the ADA at one time or another and might not be covered if they go into a court because the court is going to have to look very closely at whether or not they have a disability and whether Congress intended for those individuals to receive civil rights protection because of their impairment."
Question: Rehabilitation center staff often work with state vocational rehab specialists in finding employment and work accommodations for people who have been disabled due to recent accidents or health problems. What do you find are some of their biggest challenges in convincing employers to make accommodations that are not directly spelled out in the ADA?
Kaplan: "It’s not really that it’s a challenge; it’s that there’s a lot of ignorance and attitudinal barriers that continue to be the biggest barrier. You can put all the legislation you want on the books, but you can’t legislate attitude. No. 1, we have ignorance that continues to prevail.
"Despite research to the contrary, employers still think people with disabilities are not reliable, skillful workers. They think they’ll be absent a lot because of medical treatment. They still feel that to accommodate a person with a disability will cost a lot, and they are ignorant about where the resources are in terms of who could help them figure out what the accommodation might be. Unfortunately, the media continues to contribute to this misinformation, and it’s very frustrating.
"Even when we talk with the media, which we do quite a bit, we’re careful with how we phrase things, but then some of our statements are taken out of context, and it gives a whole different impression.
"Businesses are also still ignorant about the tax credits that are available to help them with barrier removal, hiring of qualified persons with disabilities, and a lot of them still have fear about disability. It’s the largest growing minority group, and it’s the only minority group that any one of us can become a member of at any time; and I think that is instilling a lot of fear, unfortunately."
Question: Wasn’t there a case involving carpal tunnel syndrome, which is a big workplace issue, and some rehab facilities have therapists who can help people with this problem? But what was the court ruling about carpal tunnel syndrome?
Edmonds: "The case was involving Toyota, and what happened was there was a lot of confusion over what it meant to have a substantial limitation in a major life activity of performing manual tasks. It’s very technical, and basically, the Supreme Court undid a lot of what previous courts had done on this issue. But if you read the opinion and are knowledgeable, it’s very clear what the court was trying to do.
"They were trying to clear up the way that this particular major life activity was treated. Everyone knows what it means to do walking and talking and seeing and hearing. Performing manual tasks is a little bit different because people do so many things. So this case gets into the media, and it’s interpreted that carpal tunnel syndrome is not a disability; but that’s not what happened.
"People in the media don’t take the time on deadline to read everything in the Supreme Court decision and to get every little nuance out of it; it’s just not possible. So there’s a lot of media misinformation out there about carpal tunnel syndrome and the ADA.
"What the Supreme Court said is if you have carpal tunnel syndrome and there are things you cannot do with your hands, you have to show exactly what you can and cannot do; you have to enter that into evidence. What the plaintiff said in her deposition is that she could not work with power tools located above her shoulder level that vibrated. Well, that’s not a substantial limitation because most people don’t work in that environment with power tools that are over their heads. It has to be the kind of limitation that people have in the general population.
"So the court said that what you need to do is go back and show us what you can and cannot do with your hands in the day-to-day environment that everyone has to work with. And a lot of that involves brushing your teeth, brushing your hair, doing laundry, going grocery shopping; and you have to show what kind of problems you’re having in a day-to-day environment. If the only thing she’s limited in doing is working with large power tools then that’s probably not going to be a disability.
"I think employers are going to continue to look at ergonomics and are going to continue to try to avoid carpal tunnel syndrome because they don’t want that hit on their workers’ comp budget. But when someone actually develops an injury that becomes a disability, they may have a hard time accommodating them based on this case. They may assume that the Supreme Court said carpal tunnel syndrome is not a disability, and it just goes back to ignorance and fear."
Kaplan: "When the 2004 Harris survey looked at the different types of job discrimination and how it’s changed over the years, one of the factors was being denied a workplace accommodation; and in 1998, when they measured that, they found that 22% of population of people with disabilities were denied a workplace accommodation. It really doubled to 40% in 2000, and in 2004, it dropped down to 21%. So there’s been a significant improvement at least from 2000 in employers’ understanding their requirements to provide a reasonable accommodation.
"Where difficulty persists is making information accessible to people with visual and hearing impairments. This whole requirement of effective communication, which to us seems to be the easiest one of all, appears to be among the more challenging and difficult. It’s ignorance. People don’t realize what’s involved. You have to look at your application and how you advertise when you have jobs available; when you look at training material to modify these so they’re accessible to people with disabilities, and it just becomes overwhelming."
Williamson: "The Program on Employment and Disability at Cornell University actually backed this up when they did a survey about six years ago. They said about half of their respondents lack familiarity with using such things as TTY or relay service and not being able to access sign language interpreters or not knowing how to access sign language interpreters or to put their materials in Braille or on disk or even thinking in that vein was part of the problem.
"People just didn’t think to be familiar with it, and so they were looking for some guidance in how to do that.
"One of the things we found that is backed up by the Cornell group is that the disabilities not readily seen or what people are less familiar with are the ones where the accommodations are going to be the most difficult. A person with a head injury or a person with a learning disability or even people with hearing or learning impairments — those are the ones that people find the most difficult to accommodate because they feel like they don’t have any resources for them. A person in a wheelchair is a disability that is readily identified.
"The other arena that also becomes sticky at times is people with psychiatric disabilities. That is a whole arena of individuals who often have many barriers in front of them and where the accommodations are least likely to happen because people don’t understand mental health issues, and there’s a stigma attached; and so many times the accommodations are seen in a very negative light.
"People with mental illness are among the most disenfranchised people in our country. We read so many articles about increase in workplace violence, and that fear seems to get in the way of providing accommodation for people with mental health issues. They link the two, although there’s no research that suggests that people with mental illness who want to work have greater incidence of violence in the workplace. It’s our own fear and stereotypes that get in the way."
Question: Do you feel that the ADA has accomplished much of what legislators intended when they passed the law in 1990, and why?
Kaplan: "The ADA is definitely a work in progress, and I think that’s the nature of civil rights laws. It’s not like you open a recipe book and say, This is the situation, and here’s what we can do about it.’ You have a general list of requirements, and then you have some parameters and defenses against those requirements. You have to look at the individual in a particular environment and determine what is the best option that will work that is reasonable.
"So we like to think of the ADA as a thinking person’s law. The American public and business are saying, The government is over-regulating us.’ With the ADA as a piece of civil rights legislation, the onus was put back on business and states and local governments to say, Here are your obligations — you figure out the best way to maintain the integrity of your business or service while providing equitable access to people with disabilities. But then they say, The law is too vague; tell me what to do, and we’ll do it.’ So it’s a thinking person’s law, and it will take time.
"We have the Civil Rights Act of 1964 — and has that ended discrimination? No. So it’s going to take a long time for everybody to understand it and to take it personally, and again, whenever we find someone who is a true advocate and doesn’t have a visible disability, then if we dig deep enough, we’ll find they have someone in their close circle who has sensitized them and made them aware."
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