The Americans with Disabilities Act, 16 years later

Sixteen years later 

The overall goal of the ADA is to extend to people with disabilities maximum opportunity for full community integration in both public and private sectors of our society. The law was enacted to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.

President George W. Bush signed a proclamation proclaiming July 26, 2006, a day of celebration of the 16th anniversary of the ADA. President Bush cited as progress several initiatives that his administration has developed as a result of the ADA and its evolution. He noted that through the New Freedom Initiative, his administration has established an online connection to the federal government disabilities-related information and resources. This online connection can be found at www.disabilityinfo.gov. He also cites the job training and placement services of the “Ticket to Work” program as well as the One-Stop Career Centers as promoting greater employment opportunities for individuals with disabilities. The president notes that in their continuing effort to remove barriers confronting individuals with disabilities, the administration has enhanced technological advancements and encouraged increased distribution of assistive technology.

President Bush notes in his proclamation that “on this anniversary of the ADA, we underscore our commitment to ensuring that the fundamental promises of our democracy are accessible to all our citizens.”1

Unfortunately, although many strides have been made in terms of a more accessible community, employment for individuals with disabilities has remained stagnant. The National Organization on Disability released the NOD/Harris Survey regarding the impact of the ADA on the lives of individuals with disabilities.2 The survey indicated that people with disabilities “remain pervasively disadvantaged.” The study highlighted that only 35% of people with disabilities reported being employed full- or part-time, compared with 78% of those who do not have disabilities.

It should be noted that 18% of the population of the United States have some level of disability.3 The Census Bureau estimates that the number of individuals with a severe disability represents 12% of the population or 32.5 million people. The Census Bureau also notes that there are 11.8 million, or 6%, of the population between ages 16 and 64 who report the presence of a medical condition that makes it difficult to find a job or remain employed. In terms of income, the Census Bureau reports that individuals with a nonsevere disability have a median income of $22,000 per year. For individuals with a severe disability, the income level is reported to be $12,800 per year.

Although it was hoped that the ADA would improve the employment prospects for this 18% of the population, it appears to have fallen short. In fact, in Ruth Colker's book The Disability Pendulum: The First Decade of the Americans with Disabilities Act, she says, “The ADA has had little or no impact on the overall employability of individuals with disabilities.”4 She further explains that the ADA is “only an anti-discrimination statute” and does not deal with the fundamental aspects of the true problems associated with individuals with disabilities.

W. Roy Grizzard, assistant secretary of the US Department of Labor, presented the business case for hiring people with disabilities to human resource personnel by telling a group gathered at the Harvard Club in New York City that “by the year 2014—that's only 8 years away—36 million people are expected to leave their jobs and will need to be replaced.”5 He was representing the Office of Disability Employment Policy (ODEP), the newest (established in 2001) agency of the Department of Labor. He noted that the ODEP has completed considerable research regarding employers, their business needs, their views, and perceived impediments to hiring people with disabilities.

In their research, employers' top concerns were as follows:

It may be that Colker's analysis that the ADA has had little or no impact on the overall employability of individuals with disabilities is currently correct; however, the business community is certainly more aware of how valuable individuals with disabilities are to the bottom line. Since passage of the act in 1990, there has been much greater emphasis on hiring “qualified” individuals with disabilities. Because the environment has become more accessible through the requirements of the ADA, more individuals have had the opportunity to engage in community services as well as attend colleges and universities to acquire the skills that they need for future. For example, 10% of all graduates, or approximately 1.5 million students, report having one or more disabilities. These are the workers of the future, who will help to fill the gap that will be created by the 36 million people who are expected to leave their jobs within the next 8 years.

As to the issue of accommodations, results from a research survey addressing the costs and benefits of job accommodations for persons with disabilities were recently released by the Job Accommodation Network (JAN).6 The JAN is a service of ODEP with the mission of facilitating the employment and retention of workers with disabilities. They do this by providing job accommodation information to employers, employment providers, people with disabilities and their family members, and other interested parties.

The survey was completed by the University of Iowa's Law, Policy, and Disability Center with employers that use the JAN. Survey results indicate that in more than half of the accommodations needed by employees and job applicants with disabilities, there was no cost involved. Of the accommodations that do require expenditure, the typical cost by employers is around $600. The Center interviewed the 178 employers who contacted JAN between January 2004 and April 2005.

Another interesting aspect of the survey that corresponds with the business model indicated above is finding and retaining qualified employees. The survey results match those of the ODEP's related to this topic. For example, one survey finding was that employers want to provide accommodations so they can retain valued and qualified employees. Of the employers who called JAN for accommodation information solutions, most do so to retain (84%) or promote (2%) current employees. On average, these employees have been with the company for seven years and 43% had a college degree or higher.

Although the ADA may not have immediately improved the employment prospects of individuals with disabilities, over time, other factors have contributed to societal changes that will eventually evolve into more individuals being prepared and ready for employment. This idea was exemplified in remarks made by Susan Meisinger, president and CEO of the Society for Human Resources Management.5 She said: “We are entering a ‘perfect storm,’ where employment is up, the economy is strong and workers are migrating to retirement. This is a perfect opportunity for people with disabilities.”

I believe the ADA has helped to prepare not only attitudinally but also in terms of a more accessible society to enable individuals with disabilities to more fully participate, to have equality of opportunity and economic self-sufficiency, and to be able to live independently, all of which are the specific goals of the ADA.

DOJ pursues enforcement 

As a part of the celebration of the sixteenth anniversary of the ADA, the Justice Department noted that they have achieved, in fiscal year 2005 alone, favorable action for persons with disabilities in 367 cases, including 112 formal settlements, 53 informal resolutions of complaints, 184 successful mediations, 8 consent decrees, and 10 favorable court decisions.7

Wan J. Kim, assistant attorney general for the Civil Rights Division of the DOJ, said, “In the 16 years since the passing of the ADA, the Civil Rights Division has made the enforcement of this landmark law a top priority.” Here are a few of their most recent accomplishments.

Recently, a judge had awarded what has been called “the largest award in an accessibility lawsuit” against Kmart.8 A federal judge recently approved a settlement that requires Kmart to pay $13 million in damages to shoppers, $3.2 million in legal fees, and a projected $60 million to retrofit 1400 Kmart stores across the country. The intent is to make these stores more accessible to customers with disabilities over the next 7.5 years. Within this agreement, damages are to be paid to class members of this class action suit, including customers or potential customers in California, Colorado, Hawaii, Massachusetts, New York, Oregon, and Texas. These individuals have noted that they believed they have faced accessibility-related disability discrimination at the Kmart stores. The money amounts will range from $50 to $8000 each. Kmart also agreed to remodel their stores, including making the restrooms, fitting rooms, and parking areas comply with the ADA. Kmart noted that they have a plan to provide to customers with disabilities a two-way communication device that will allow them to seek assistance locating merchandise in the store.

Sears, Roebuck, and Company, Inc., also has come to an agreement to terminate a lawsuit brought against the corporation by a sales clerk.9 A federal judge has approved a $150,000 consent decree in which the EEOC charged that Sears had refused to provide reasonable accommodation to an employee who was diagnosed with neuropathy. The EEOC maintained that because Sears did not provide reasonable accommodation to the employee, she was unable to do her job as a clerk in one of its stores. The suit was originally filed in 1997 and was dismissed twice by a district judge. However, the US Seventh Circuit Court of Appeals reversed the federal judge's decision. Besides the $150,000 decree, Sears has agreed to train its managers and supervisors regarding discrimination under the ADA, post a notice informing employees of the decree, end disability discrimination, and report allegation of such discrimination to the EEOC for the next 18 months.

In another very important agreement, the DOJ signed a settlement with NPC International, Inc.'s Pizza Hut restaurants10 to become more accessible nationwide. NPC operates approximately 800 Pizza Hut restaurants in 25 states and is considered the largest single franchisee of Pizza Hut restaurants in the United States. At a minimum, the Pizza Huts will have numerous accessible features, including parking areas, entrances, dining and food service area, and public restrooms. Pizza Hut agreed to have two accessible parking spaces, including one designated for vans. The accessible entrance will connect all accessible spaces within the site through an accessible route that is free of obstructions.

They also will make adjustments in entry doors to allow them to be operated more easily. It was also noted that dining, food service, and customer service areas will include at least one accessible table or booth, an accessible counter surface or check-writing area where payment is made. In addition, all public restrooms will be accessible including either accessible stalls in multistall restrooms or accessible unisex restrooms. The only possible exclusion will be if the DOJ and NPC agree that it is not reasonable or feasible to make those changes. Also, the accessible restrooms will have grab bars, a lavatory that can be operated easily, and other accessible features. NPC has also agreed to survey and evaluate their own facilities that may have been subject to the ADA's new construction or alteration standards at the time of construction and bring them into compliance.

The DOJ's Project Civic Access is an initiative designed to ensure that towns and cities throughout the United States comply with the ADA. The DOJ notes that they signed 147 agreements with 139 communities to make public programs and facilities accessible. They note that the goal of Project Civic Access is to “insure that people with disabilities have an equal opportunity to participate in civic life.”

In another very important settlement, the DOJ was able to arrive at an agreement with the Washington Hospital Center. Under the terms of this agreement, Washington Hospital Center will create a minimum of 35 ADA-accessible patient rooms, review hospital policies, and train staff to address the needs of individuals with disabilities. The hospital also agreed to the appointment of an ADA officer to oversee implementation of this agreement.

An agreement was also reached with the University of Chicago to make the campus more accessible to students, faculty, and visitors with disabilities. Under the agreement, the university will implement plans within the next four years to make facilities—including classrooms, residences, and libraries—accessible to those with disabilities. Regarding campus transportation systems, the university agreed to alter buses and vans to meet the ADA requirements by October 2006.

DOJ resolves litigation with hospital 

In the May/June 2005 issue of The Case Manager a lawsuit filed in the US District Court of Maryland against Laurel Regional Hospital or Dimensions Health Corporation was discussed.11 In a first-of-its-kind lawsuit, 7 patients who are deaf sought treatment at Laurel Hospital but allegedly were denied proper care because of ineffective communication. The seven patients specified that despite their repeated requests for in-person qualified sign language interpreters, they were provided with inadequate video interpreting, cryptic notes, or no communication at all.

The patients allege they were unable to provide informed consent to treatment. They all allege that they were denied the opportunity to participate in their treatment and the full benefit of health care services. Within the lawsuit, it was also alleged that hospital staff were not adequately trained to use the video remote interpreter system. The system provides for a remote interpreter communicating with a patient via video conferencing technology. The court records indicate that one of the 7 plaintiffs went to the Laurel Hospital emergency department to receive treatment for severe abdominal pain, nausea, and vomiting, among other symptoms. It was alleged that this individual was required to wait hours, was denied numerous requests for an in-person interpreter, and was prepared for medical tests in a manner that was personally humiliating.

Under the ADA, discrimination includes the failure to provide auxiliary aids and services. The term auxiliary aids and services includes qualified interpreters who “aurally delivered materials available to individuals with hearing impairments.” Within the court documents, it is indicated “to communicate effectively in medical situations—especially emergency medical situations—plaintiffs require a live, qualified sign language interpreter.” In the suit, the plaintiffs were seeking preliminary and permanent injunctions against Laurel Hospital and an order requiring the hospital to provide individuals with auxiliary aids and services necessary for effective communication. This would include qualified sign language interpreters, teletypewriters, and closed-captioned televisions. The plaintiffs also are seeking compensatory and punitive damages, as well as attorney's fees and costs. However, generally speaking, under Title III of the ADA, compensatory and punitive damages cannot be assessed against places of public accommodation, even if they have discriminated against a protected class.

The DOJ announced a comprehensive consent decree under the ADA with Laurel Regional Hospital.12 This decree resolves allegations of the seven patients noted above. Under the decree, the hospital will assess the communication needs of individuals with speech or hearing impairments upon their arrival or at the time an appointment is scheduled. They also will provide qualified interpreters when necessary to effect communication between medical staff and patients. The DOJ notes that this will facilitate the circumstances, which involve a lengthy or complex interaction during the admissions process. It also will facilitate the detailing of symptoms, diagnosis, and treatment.

The decree will provide auxiliary aids to companions as well as patients. The hospital has agreed to meet certain standards for video interpreting services, including high-quality, clear, delay-free, full-motion video and audio over a dedicated high-speed Internet connection. This is the department's first agreement that includes criteria for video interpreting services (video phones).

Implications for case managers 

Title III of the ADA applies to private entities such as hospitals and other medical facilities. The ADA also requires that private entities and hospitals ensure effective communication with persons with speech, hearing, and vision impairments. It was the hope of the attorney for the 7 clients that Laurel Hospital will recognize “that when deaf patients present themselves for treatment, whether emergency or outpatient, there is not a one-size-fits-all solution to communicating with them.” Case managers involved in hospital and/or health care settings should ensure that there are “auxiliary aids and services” available for individuals with hearing impairments. This specifically includes qualified interpreters who can provide effective communication with patients and the medical staff. This very important precedent has been set for other hospitals and medical facilities to follow.

Disability-related inquiries and medical examinations 

The EEOC has issued guidelines related to disability-related inquiries and medical examinations and the employer's ability and responsibility under the ADA.13 The guidelines emphasize that medical examinations are analyzed in three stages: preoffer, postoffer, and employment. At the preoffer stage, before the offering of employment, the ADA prohibits all disability-related inquiries and medical examinations. At the second stage, where the applicant is given a conditional job offer, an employer may make a disability-related inquiry and conduct medical examinations, regardless of whether they are related to the job. The requirement is that the employer has to require the same medical examinations for all employees entering in the same job category.

At the third stage, after employment begins, an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity. It is important to emphasize that the ADA requires this medical information obtained from any disability-related inquiry or medical examination as a confidential medical record. This information can be shared only in limited circumstances with supervisors, managers, first aid and safety personnel, and government officials investigating compliance with the ADA.

There are some important definitions related to this subject. For example, disability-related inquiry is defined as “a question or series of questions that is likely to elicit information about a disability.” On the other hand, a medical examination is “a procedure or test that seeks information about an individual's physical or mental impairments or health.” Medical examinations usually include but, the EEOC emphasizes, are not limited to vision tests; breath analysis to check for alcohol use; blood, urine, saliva, and hair analysis to detect disease or genetic markers; blood pressure screening, cholesterol testing; nerve conduction studies; range-of-motion tests; pulmonary function; psychological tests and diagnostic procedures such as X-rays, computer-assisted tomography scans, and magnetic resonance imaging tests. This enforcement guidance issued by the EEOC is a very valuable resource for the case manager and can be found on the EEOC's Web site, www.eeoc.gov/policy/docs/guidance-inquiries.html.

The EEOC issues report on charges 

The EEOC has issued a report on the charges filed for 2005, covering October 2004 through September 2005.14 It is interesting to note that retaliation charges continue to rank number 3 out of 8 categories. Those 8 categories include race, gender, national origin, religion, retaliation, age, disability, and equal pay act. Disability charges rank number 5 in the list of 8. Of the total charges of 75,420, retaliation charges totaled 30%, whereas disability charges totaled 20%. As has been noted on numerous occasions in this column, retaliation charges have surpassed disability claims because the burden of proof for disability claims has become so difficult. Claimants are relying upon retaliation as way to have their cases be heard in court.

In a recent decision by the US Supreme Court, Burlington Northern Santa Fe Railroad v. White, the Supreme Court expanded the definition of what constitutes retaliation, which would apply to the ADA as well.15 The Supreme Court ruled unanimously to give broad protection under Title VII of the Civil Rights Act to employees who suffer retaliation for complaining about workplace discrimination. Some legal commentators suggest that this will “trigger a wave of new litigation to determine what kinds of employer actions constitute the legal retaliation.” In essence, this decision will make it less burdensome for an employee to file a retaliation claim and be heard in court. Circuit courts have adopted different standards related to retaliation charges but now have a precedent from the Supreme Court to follow. According to Allan Weitzman, an employment law specialist, in reference to the decision, he states, “It's an undefined standard that will create a lot of litigation.” As a result of this decision, one can expect to see in the next several years an increase in retaliation charges through the EEOC statistics. In the very near future it may even outrank race and gender charges, now ranked numbers 1 and 2, respectively.