ATTACK OF THE MORALLY CHALLENGED Congress goes after the disabled

ATTACK OF THE MORALLY CHALLENGED Congress goes after the disabled

By Fred Pelka

PSYCHOLOGIST CAROL GlLL KNOWS THE VALUE OF HAVING federal civil rights law on your side. “When I called one of Chicago’s major teaching hospitals to make an appointment at the women’s health clinic, I was told that I couldn’t be seen unless I could get myself onto and off the examining table.” When Gill, who uses a wheelchair, protested, “there was a lot of wrangling back and forth and being transferred to different people and departments.”

Then Gill remembered the Americans with Disabilities Act (ADA). “I asked to talk to their ADA compliance person, and when I did, the response was just incredible: ‘Of course we’ll have someone there to assist you onto the examining table. That’s your right.’ I hung up the phone and felt like wiping off my sword. The ADA! The ADA did this.”

When the Americans with Disabilities Act was passed six years ago, it was hailed as one of the most significant civil rights victories of this century. People with disabilities, often excluded from employment and public life, locked into poverty, and consigned to nursing homes, seemed poised at last to dismantle the barriers that have held them back for so long.

The charge that the
Americans with Disabilities Act
has resulted in a deluge of
frivolous lawsuits has been
repeated so often that it’s
taken on an aura of truth.

Now the ADA is under attack, not only in Congress, but from conservative think tanks, TV news programs, and op-ed pages. Critics charge the ADA is too soft-hearted and too expensive. They call it “a costly crutch” and “the Attorneys’ Dream Act.” Speaker of the House Newt Gingrich has labeled the ADA “a dumb use of resources,” while House majority leader Dick Armey blasts it as “a disaster” and “an abomination.”

Deborah Kaplan, vice president of the World Institute on Disability in Oakland, CA, believes that ADA-bashing is in part an effort by conservative Republicans “to show how tough they are, that they’re not afraid to attack the disabled lobby.” But this display of political machismo also threatens every other constituency that relies on the federal government for civil rights protection. And women in particular, who make up a disproportionate number of the disabled, will find themselves the losers if the ADA-bashers have their way.

“Our opponents are anti-civil rights lobbyists who don’t believe that the federal government should make civil rights laws,” says Justin Dart, Jr., a principal architect of the ADA. Dart believes the ADA-bashers have a larger agenda. “They can’t attack the laws protecting black people, or other civil rights laws they would like to repeal, because they know right now they can’t get away with it politically.” The ADA, recently passed and poorly understood, is seen as vulnerable, and its repeal or weakening would set a disturbing precedent. For the first time this century, Congress would be revoking civil rights protection it had previously extended through law to an oppressed minority.

From Aid to Access

The ADA marks a radical change in the way our society views disability. Prior to the disability rights movement, efforts to “help” the disabled focused on their “rehabilitation” or cure. Disability rights activists realized that society’s reaction to disability was every bit as limiting, often more so, than disability itself. Using a wheelchair does not, in and of itself, keep someone unemployed and in poverty. But the fact that transportation, workplaces, schools, stores, homes, and churches were all inaccessible meant that anyone using a wheelchair became a social outcast. Prejudice also played a role in this oppression. People with disabilities were routinely kept out of restaurants, not allowed onto buses or planes, or removed from movie theaters, to keep them from “disturbing” able-bodied customers. Similarly, employers often refused to hire disabled workers. The idea of an ADA goes back at least as far as 1983, when the National Council on Disability recommended that Congress include persons with disabilities under civil rights law. From then on, passage of the ADA became the main focus of the disability rights movement. After extensive lobbying and public demonstrations, including the occupation of the Capitol rotunda by the direct action group ADAPT, the bill was signed into law in July 1990.

While largely modeled on the Civil Rights Act of 1964, the ADA also included provisions never before seen in a civil rights act. Because segregation against people with disabilities is often enforced by physical barriers such as stairs (as opposed to “Whites Only” signs), the law includes the concept of “reasonable accommodation.” For example, it requires employers to modify the work environment for their disabled employees, unless such modification is an “undue hardship” requiring “significant difficulty or expense.” The disabled employee must, of course, be “otherwise qualified,” that is, capable of doing the job despite their disability. The ADA exempts from its provisions businesses with fewer than 15 employees, religious groups, private clubs, and private homes. It also excludes from its protection people who are active drug or alcohol abusers, pedophiles, voyeurs, compulsive gamblers, kleptomaniacs, pyromaniacs, or anyone suffering from a host of other “disorders.”

As with the backlash against feminism and multiculturalism, much of what is alleged by ADA opponents is misleading. Some of it is demonstrably false. A good case in point is this comment by Julie C. Janofsky in the Wall Street Journal: The ADA “casts so wide a net that it includes even allergies and learning problems. _ . , … . And because disabilities are self-identified by the employee…that means that the accommodations required of the employer are also defined by the employee. Once an employee identifies himself or herself as having a ‘disability,’ there are virtually no limits to what accommodations can be demanded.”

To begin with, some people with allergies and learning disabilities may be protected by the ADA, but only if their condition impedes a major life activity such as walking, talking, or breathing. “Someone with asthma would not be covered unless it was so severe that they couldn’t, for example, breathe without [an] oxygen [tank],” says John Lancaster, executive director of the President’s Committee on Employment of People with Disabilities. “I think most people would agree that that’s a pretty serious disability.”

And yes, disabled employees are generally “self-identified.” Few people outside the editorial offices of the Wall Street Journal would expect a civil rights law to ask employers to choose which of their employees should be protected. But if an employee asks for accommodation, she or he is required, upon request, to provide documentation of the disability: medical records, or an evaluation by a rehabilitation expert.

Finally, while there may be no limits as to what accommodations can be demanded, there are tight limits on what can be expected. The accommodation must be “reasonable”; it can’t impose “an undue hardship.” Almost a third of all accommodations cost nothing at all, while more than 80 percent cost less than a thousand dollars, according to the Jobs Accommodation Network, a federal information service for businesses with disabled employees. A typical accommodation might be raising a desk up on blocks so that someone in a wheelchair can use it, or purchasing a telephone headset for someone with limited use of their hands – hardly the sort of measures likely to bankrupt a business or local government.

In fact, Dart notes that, since its passage, “there hasn’t been a single business or town or county government that’s gone bankrupt because of the ADA.”

ANOTHER FAVORITE DEMON OF ADA-BASHERS IS THE “barrage” of “frivolous” lawsuits they say are filed under the act. James Bovard, writing in the July 1995 American Spectator, complains that the ADA has “turned disabilities into valuable legal assets, prizes to be cultivated and flourished in courtrooms for financial windfalls.” He then runs down a list of “lunatic claims” that includes “aging stewardesses” suing Delta Airlines over its employee weight guidelines; a 360-pound woman who sued a movie theater for $1.5 million because its seats couldn’t accommodate her; a professor who claimed “that she had been denied tenure because she suffered from an illness that results in lethargy and decreased productivity,” and so on.

But another ADA-basher, Brian Doherty, assistant editor of Reason, acknowledges that “in most of the most absurd ADA cases, the plaintiff doesn’t win. Even when the cases go farther than merited, the effects are often mitigated.” Nevertheless, in an op-ed piece in the Miami Herald, Doherty argued that “any law that allows such suits even to be filed has obvious conceptual difficulties [italics added].” But one could just as easily cite absurd actions brought under a variety of other laws. In a recent case in Massachusetts, for example, a physically abusive husband contended that his arrest for threatening to murder his wife (and violating a restraining order) was an infringement of his right to free speech. Even though this argument was dismissed by the court, shouldn’t we conclude, using Doherty’s reasoning, that the First Amendment to the Constitution has “obvious conceptual difficulties”?

In any event, according to John Lancaster, as of June 1995, “only 650 lawsuits have been filed under the ADA,” and the U.S. Justice Department reports that there has been no marked increase in the rate of lawsuits filed since then. This hardly seems like “a barrage” of litigation, considering that there are an estimated 40 to 50 million Americans with disabilities. The reason for this low number of cases is simple: The ADA doesn’t offer many financial incentives for filing lawsuits, “lunatic” or otherwise. “The remedies provided…are so reasonable that no lawyer or client would give court action a second thought. You sue the local pizza shop for not having a ramp. You win. You get a ramp. No million-dollar judgment. Just a ramp,” explains Justin Dart.

Still, the charge that the ADA has resulted in a deluge of frivolous lawsuits has been repeated so often that it’s taken on an aura of truth. In his bestseller, Restoring the Dream, Newt Gingrich offers an account of Dade County, FL, being forced by “civil rights lawyers” to build a ramp and provide handicapped parking spaces “to a nude beach.” Gingrich writes: “We don’t know if we should laugh or cry” at the absurdity of this story. Perhaps we should just check it for accuracy.

“In fact,” says Dr. Diana Richardson, director of the Office of ADA Coordination for Metro Dade County, “there were no civil rights lawyers involved. There was no lawsuit at all. Our office received complaints from several people using wheelchairs that they couldn’t get to the beach, so we looked into it.” Furthermore, it isn’t a “nude beach, it’s clothing optional,” Richardson says. “The beach isn’t in some out-of-the-way place. It is the most popular beach in our part of the state, a major tourist attraction, visited by thousands and thousands of people. We felt it was important that it be accessible. We also get a lot of elderly visitors and we wanted the beach to be more accessible to them as well.”

“People don’t understand that what we’re talking about here is civil rights, and civil rights belong to everyone. Imagine the outcry if we tried to keep black people, or Hispanics, or a particular gender, or any other group off the beach. But somehow, once we start talking about the disabled, people begin to think it’s all right to exclude them.”

The Deserving Disabled

Among the most frequently bashed aspects of the ADA are its provisions to protect people labeled as mentally ill from arbitrary dismissal from work or school. ADA-bashers repeat the most dangerous canards about mental illness, reinforcing the prejudice that the mentally ill are generally strange and violent people. Take as an example this note from the Employee Relations Law Journal: “Many individuals who become violent toward customers or coworkers suffer from some form of mental disorder. Yet for an employer to be too careful in screening potentially dangerous persons out of the work force is to invite liability for discrimination under the ADA.”

Of course, many individuals who become violent toward customers or coworkers are also male gun owners. According to Ron Hohnberg, director of legal affairs at the National Alliance for the Mentally 111, “People with mental illness who are employed are no more likely to be violent than anyone else.” And though there may be a tiny minority of mentally disabled people who are violent, Hohnberg points out that the ADA allows employers to discharge anyone who is a “direct threat” to an employer, coworker, or customer. And yet, some critics of the ADA seem to be asking that employers be given the right to fire preemptively otherwise exemplary employees whom they identify as mentally ill.

Newt Gingrich is not above pandering to fears about mental disabilities. Justin Dart notes that Restoring the Dream lists “drug abusers, the obese, and the emotionally disturbed” as covered by the ADA. In an open letter to Gingrich, Dart refers to what he sees as “direct appeals to the very prejudice that the ADA was designed to eliminate…. Over a lifetime more than 42 million Americans experience a psychiatric disorder. They suffer the most profound prejudice and vicious discrimination. Your public suggestion that their civil rights should not be protected is frightening.”

This distinction between “truly disabled” people, who use wheelchairs, or are deaf or blind, and the “faux disabled,” all those recovering alcoholics, drug addicts, people with back pain, fat people, and the dangerous mentally ill, is a recurring theme in attacks on the ADA. But there is also the assumption that while some people with disabilities may be more worthy of our concern than others, even the best of them are simply not worth the effort required under the law. According to Kaplan, “What they’re saying is that any benefits that society realizes as a result of disabled people participating could never possibly outweigh the costs.”

In fact, ADA-bashers seem to have trouble believing that disabled people are in many cases no less competent than the temporarily able-bodied. Another “lunatic” outrage cited by Bovard is how, in March 1993, “a federal judge ruled that the District of Columbia’s practice of excluding blind people from jury service was a violation of the ADA.”

Apparently it is still necessary to point out that being blind doesn’t necessarily make someone unjust or incompetent. It is in response to just such prejudice that the ADA was passed in the first place.

Backlash or Bigotry?

Although some have characterized these attacks on the ADA as a backlash, it’s important to note that hostility toward people with disabilities, like racism or misogyny, is never far from the surface of American life. Lucy Gwin, the editor of Mouth: The Voice of Disability Rights, believes that “whenever people with disabilities are visible, as we’ve been since [passage of] the ADA, you will see more of the reaction that’s always there. Backlash isn’t a good word for it. Bigotry is more like it.”

Jo Davis, cofounder of the Access Now Coalition in Boston, sees people with disabilities being used as scapegoats. Some writers, for instance, blame the ADA for rising subway fares, neglecting to mention the role of draconian cuts in federal aid to mass transit. And just as women and people of color are blamed for the decrease in secure jobs for white men caused by economic restructuring, so children with disabilities and their parents are attacked for using up a “disproportionate” amount of education dollars, money that would be better spent on “normal” children. “Gifted students, in contrast to disabled children,” writes Philip K. Howard in The Death of Common Sense, “receive virtually no support or attention from America’s school systems….” It would seem that to Howard these two categories are mutually exclusive: A disabled child could never, ever, be “gifted.”

Howard is particularly adept at pitting the civil rights of disabled people against the convenience of everyone else, often demonstrating a woeful ignorance of the realities of life with a disability. For example, he faults disability advocates for wanting accessible mass transit, because they have available to them “door to door para transit facilities…what most would consider front of the bus” service. In fact, para transit is generally inadequate and unreliable. I remember a disabled woman telling me how, out of 20 round trips she had scheduled for chemotherapy, the local para transit service had managed to deliver her to just two of her appointments. A friend of mine missed her chance for a last visit to a dying friend because the service would not honor her trip request as a priority. Stories like these are legion. Yet Howard cites the inconvenience of able-bodied riders, who have to wait a few extra minutes so that a wheelchair user can board a bus, as an affront to “common sense.”

There is much here that is similar to the way women’s calls for equality have been dismissed as absurd, unreasonable, selfish. After World War II, millions of women who were employed in heavy industry were fired so that these well-paying jobs could revert to their “male-only” status. Kathi Wolfe, writing in the August 1995 issue of Mainstream, notes how the same situation prevailed for disabled workers. Thousands of people with disabilities were gainfully employed during the “manpower shortage” of 1942 to 1945, only to lose their jobs after the war ended.

And bigotry against people with disabilities often merges with bigotry against women. It is no coincidence that many of the ADA cases cited as frivolous involve obese women, whose concerns about discrimination can of course be laughed off as absurd.

There are other commonalities. According to Lucy Gwin, “Women, once disabled, are less likely to be employed, to have life partners, or to receive quality rehabilitation services than disabled men. Women outnumber men in nursing homes eight to one. Women whose children are disabled live in poverty, because they have to be poor to qualify for Medicaid, and because many of their husbands cut and run.” And people with disabilities share with nondisabled women the burden of living in a culture that places tremendous social, economic, and even moral value on physical “attractiveness.” To be overweight, short, dark-skinned, facially scarred, or in a wheelchair can all place a person on a lower level of the social pyramid.

“Disability is a sociopolitical phenomenon as much as it is medical,” says Dr. Gill, a psychologist and the president of the Chicago Institute of Disability Research. “Our issues are not caused by biology, any more than the issues of women’s oppression are caused by sex. We have that kindred source of oppression, in a society that is all too quick to blame our second-class citizenship on our biology.”

The Disabled Are Us

Women are also more likely to be caretakers, professional or otherwise, in a society that views caretaking as low-status (and low-paying) work. When a child or an aging parent needs help, it is generally the mother or daughter who is enlisted to provide the care, with little or no support from the community. Billions of tax and health-care dollars, presently absorbed by an often corrupt and dehumanizing nursing home industry, could be better spent providing Personal Assistance Services (PAS) to people in their own homes, allowing them to retain their dignity and independence. The key is to recognize that most everyone will benefit by changing the way society deals with disability.

In fact, some in the disability community believe the ADA doesn’t go nearly far enough. “It’s incredibly difficult to prevail under any civil rights statute,” says Wendy Parmet, professor of law at Northeastern University. “The untold story of the ADA is that people with meritorious claims are seeing their suits thrown out of court.” And according to ADAPT organizer Stephanie Thomas, the Clinton administration has already made an exception for Greyhound bus lines, granting them an extension on when they need to comply with the ADA. This means that six years after its passage, people using wheelchairs are still unable to travel from city to city using the bus. Further extensions of ADA deadlines are expected to follow. Latent hostility to the disabled notwithstanding, it may turn out that conservative ideologues have finally overestimated the intolerance of the American people. Despite all the bad press, there still seems to be widespread support for the ADA, and some of it from unexpected quarters. A Harris poll of corporate executives, commissioned by the National Council on Disability, found that more than 90 percent of those surveyed supported the antidiscrimination provisions of the ADA. And when the Advisory Council on Intergovernmental Relations recommended making compliance with the ADA “voluntary,” and that the law be revised to take away the ability of private citizens to sue under its provisions, disability rights activists pulled together a series of high-profile demonstrations across the country to let their elected officials know that their civil rights were not expendable. In Austin, TX, ADAPT members occupied city council chambers to protest the fact that their mayor had signed on to these recommendations. Other advisory council members across the country came in for similar actions.

“I think the conservative politicians are misreading the American public on this issue,” says Deborah Kaplan. “I use a power wheelchair, so my disability is obvious. I travel all over this country, and when I go out on the street, it’s obvious that most Americans are proud of what this country has done to open up society for people with disabilities.”

Contributing editor FRED PELKA‘s work has appeared in the Boston Globe, the Christian Science Monitor, the Humanist, Mainstream, Mothering, and Poets and Writers. He is currently writing a book about the disability rights movement.