True story. A local contractor was awaiting final inspection of a building before being granted an occupancy permit. Typically it would be a routine part of the process for the seasoned businessman, but this particular project had been beset from the beginning with numerous setbacks and disaster after disaster-so much so that those involved were convinced they had mistakenly built on sacred ground or were the subject of some gypsy curse. The builder held his breath as the township zoning officer went through his checklist. Everything seemed to be going smoothly until the inspector pulled out his tape measure and held it up to the countertop in one of the rooms. “This is an inch and a half too high,” he said. The two men went from room to room measuring each work station, double-checking their blue prints, and sure enough, every counter in every work area was out of compliance. In ordering premade cabinetry, the builder forgot to specify the correct height. There was no denying it. In order to receive an occupancy permit, thus allowing the business to open on time, it meant that seven rooms of cabinetry including countertops, tile, sinks and plumbing would have to be entirely removed, redone, and reinstalled. Now if we were dealing with a less scrupulous businessman or a less diligent public servant you may be guessing that this story would have a less savory ending-maybe involving some green bills being slipped under the table. Not so. The builder bit the bullet, did what had to be done, and finally received the needed permits.
Why am I telling you this? Remember that inch and a half measurement error? It may seem insignificant, but to a person in a wheelchair it adds up to being able to wash one’s hands or turn around in hallway, or reach something in a cabinet-in other words, to have the same access as every other person. That inch and a half wasn’t some arbitrary number the zoning officer came up with to torment men and women in the construction business but one of the many requirements outlined in the Americans with Disabilities Act or ADA.
Believe it or not, there was a time in Washington when there were certain issues that stayed above the fray of partisanship. One of those issues was disability rights. In 1990, Democratic Senator Tom Harkin of Iowa introduced the Americans with Disabilities Act in the Senate, delivering part of his speech in sign language so that his deaf brother was able to understand. The ADA was signed into law by a Republican president, George H. W. Bush, who said upon signing, “Let the shameful wall of exclusion finally come tumbling down.”
The purpose of the act is “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities''. Title III of the ADA, in particular, “prohibits places of public accommodation from discrimination against individuals with disabilities”. “Places” includes hotels, restaurants, theaters, shopping centers, auditoriums, museums, parks, private schools, day care centers, offices of health care providers, and gymnasiums. Title III also states that “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation”. Title III requires that existing facilities be “free of architectural barriers and communication barriers that are structural in nature . . . where such removal is readily achievable”.
Prior to the ADA, it was often difficult for people with disabilities to fully participate in society. Public places were often inaccessible, and there was no recourse for those who were essentially barred entry solely on the basis of their disability. The ADA gave individuals with disabilities the grounds to file lawsuits against businesses which lacked accommodations, and although required by law under the ADA, many of the gains these individuals have made since 1990 are due to having to resort to litigation.
But now those gains could be in jeopardy. A new bill oddly titled the ADA Education and Reform Act of 2017 is making its way through Congress. Introduced last year by Rep. Ted Poe (R-TX-2) and officially known as H.R. 620, the bill would create burdensome red tape for individuals with disabilities attempting to fully exercise their rights as outlined in the ADA. First of all, H.R. 620 requires anyone filing a lawsuit under Title III of the ADA to provide written notice to the offending business owner, which cites the specific statutes that are being violated. The business owner would have 60 days to acknowledge the violation and then a further 120 days to make “substantial progress” toward rectifying the problem. Translation-as pointed out by the ACLU, “Business owners can spend years out of compliance and face no penalty even after they receive notice, so long as the owners claim substantial progress.”
It’s another case of those on the right decrying the undue inequities of federal regulations. The proponents of H.R. 620 assert that Title III has led to frivolous lawsuits that are killing business and hurting the economy. The claim is misleading. Business owners only have to remedy the violation not pay any monetary damages, and accommodations are only required if they don’t present an “undue burden” on the proprietor and can be “readily achievable”. Furthermore, there are federally funded resources that assist businesses to get in compliance. And by the way, they’ve had almost 28 years to set things right!
H.R. 620 is not the only threat to the ADA. In December, AG Jeff Sessions announced that the Department of Justice was rescinding several ADA documents which provide guidance on items such as service animals and accessible building practices. Also rescinded was a 2016 letter issued by President Obama that read in part, “The civil rights of persons with disabilities, including individuals with mental illness, intellectual or developmental disabilities, or physical disabilities, are violated by unnecessary segregation in a wide variety of settings, including in segregated employment, vocational and day programs.” This leads me to a final point. In recent months the Trump administration and Republicans on the Hill have been pushing for work requirements for Medicaid recipients. In fact, Kentucky has already received a waiver from the administration to roll out such a plan, and at least 9 other states are following suit. Seniors, children under 19, and pregnant women are exempt from the work requirement, but the situation is murkier for individuals with disabilities. States are being given wide latitude as to how the requirements will be imposed. Many disabled people rely on Medicaid, not to mention that many are already employed. But if provisions of Title III of the ADA are weakened, will Title I, which deals with employment, be next?
Maybe it’s just a problem of semantics. By definition the word regulation means to be controlled by rules. Unlike the contractor and the zoning officer in my story, some people just don’t like rules or being controlled by them. Or maybe it’s something darker. Perhaps we’ve come to an ugly place where expediency and greed take precedence over common decency and basic human compassion.
posted by Amy Levengood
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