Monday, January 30, 2006

Whittling away the Americans With Disabilities Act

I don't often do this, but at the request of a reader of mine who happens to have reason to be intimately familiar with this issue I am posting this plea:
It seems that the restaurant industry is leading to fight to keep America inaccessible to people in wheelchairs. There was a problem in Kansas (where else?) last year that was shot down.

These businesses have had nearly 15 years to make the small changes that are needed for accessibility. Some of these businesses were established after the ADA was law, and ignored it. Now, they want to have up to another year to make things accessible, and not be otherwise penalized for their indifference (I am being charitable).

This measure should never reach the ballot:

Building and Restaurant Industries Trying to Stop Disability Rights Enforcement

The California Building Industry Association and California Restaurant Association started out 2006 by submitting a proposed ballot initiative to the California Attorney General for inclusion on the November 2006 ballot.

The proposed initiative, which is awaiting Attorney General approval and will then require signature collection before it can be put on the ballot, would amend the California disability rights laws and construction defect laws to make it much more difficult for Californians to enforce the law.

The proposal would require people injured by discrimination in disability access, or by construction defects in their homes, to notify the building owner or builder by certified mail, and wait 30 business days (amounting to 40 days total) for the owner to respond. The owner/builder can then choose to (1) ignore the notice or reject the claim (in which case the injured party can proceed to court) or (2) respond by promising to make improvements within 120 business days (200 actual days ( 6.6 months)) or by demonstrating that the violations have already been corrected after the incident occurred. If the building owner cannot get the corrections made in 120 days, he can get an extension of another 120 business days - thus delaying compliance by up to 13 months!

If the owner's modifications have fixed or will fix the access violation, the injured person will have NO RIGHT to seek compensation for the initial discrimination or injuries caused by it. He or she will not be compensated for injuries and will not be reimbursed for having to pay an attorney to investigate the case. Over 15 years after the passage of the Americans with Disabilities Act (and more than 20 years after the California disability rights laws), building owners will be exempt from compensating victims for their ongoing discrimination.

If the owner's modifications are inadequate, the owner can force the injured party to go into a "prelitigation procedure" where a neutral access specialist (paid, in part, by the injured party) reviews the property or the owner/builder's proposal to fix the property and approves it as complying with access requirements. This process has no deadlines and will presumably extend the 120 day period for making improvements. At the end, if the neutral reviewer approves the modifications, the injured person will have no rights to compensation for the initial discrimination or injury, will have no right to reimbursement for attorneys fees and costs for participating in the "prelitigation procedure", and will, in fact, have to spend additional money to pay the neutral reviewer.

Notably, this initiative, applies to new construction and alterations, even though owners and builders have no defenses to providing access in new buildings. Moreover, the initiative will let both private businesses and state and local governments off the hook for new and ongoing access violations. This proposal would make people with disabilities the forced, unpaid consultants for business and governments - people with disabilities will, in effect, have to subsidize building owners' compliance (we will have to pay all of their access consultants!) with the law and will have no ability to enforce disability civil rights.

The Disability Rights Legal Center will work actively to oppose this ballot initiative in every possible way. Your support will be essential to this effort, which will require us to educate voters across the state about why disability rights should not be restricted and why, after decades of laws requiring disability access, building owners should not be encouraged to ignore those laws even longer and to place responsibility for compliance on us.
It's already bad enough for someone to be confined to a wheelchair, but part of what makes it so bad is the difficulties put in their way when they try to go to public facilities, businesse,s adn restaurants, difficulties that are not that onerous to correct. More when I find out more.

11 example(s) of insolence returned:

At 1/30/2006 12:51 AM, Blogger Ahistoricality said...

I know you don't get too political here, but you know I'm interested in disabilities and access issues. While the California initiative is worth noting (and I'll be linking back here shortly), I want to say that the ADA has been under attack from business groups since it's inception, and (this is the political bit) this is why the disability activists I track have been very concerned with Alito's nomination. This initiative would be entirely in line with his views on corporate "rights" and disability access.

Unfortunately, California ballot initiatives being what they are, it's very hard to keep one off the ballot, but it's worth trying.


At 1/30/2006 2:19 AM, Blogger ebohlman said...

My understanding is that the ADA contains explicit language to the effect that it overrides any state laws that impose *less* stringent accessibility requirements (i.e. if a state law imposes requirements beyond the ADA, it is not a defense to assert that one is in compliance with the ADA).


At 1/30/2006 9:14 AM, Anonymous Anonymous said...

Opposing the ADA is rational for many people. It doesn't make sense--for example--to install a $5000 ramp for access to your restaurant, unless you'll get $5000 more business as a result. Nor does it make sense to install special handicapped seating, if you can make more money packing in non-wheelchair-accessible seats. The businesses who oppose the ADA are merely acting in rational self-interest.

Personally, I agree somewhat with that view: though I think we should make the lives of the handicapped better, I think that's a burden which should be borne by society, not just the small segment who happens to own restaurants. Access should be mandatory for all public buildings, of course, but I'm less inclined to force private individuals to provide it.

So long as you support the decision to allow one to exclude much of the population from their business--by serving only bugs dipped in chili sauce, or by selling only $1000 jeans, or by refusing to interact with anyone who does not speak Estonian--it gets tricker to single out disability access as deserving of special treatment.


At 1/30/2006 9:45 AM, Blogger Penny L. Richards said...

Mary Johnson at the blog Edge-Centric has been following the California situation for the last few months...

But, um, "It's already bad enough for someone to be confined to a wheelchair"?? Yikes. "It's already bad enough to be a woman" wouldn't be a very good explanation for why we need women's restrooms or Title IX, would it?


At 1/30/2006 3:07 PM, Anonymous TheProbe said...

Ahistoricality correctly points out that the business sector has been one of the primary opponents of the ADA, however, state and local government has also done a fine job of gutting the intent of the law. Recently, a student at a NYS state univeristy lost a case where he was suing to have his college record expunged of being called a cheat. He had been authorized to use an advanced graphing calculator in his basic math courses due to dyslexia and severe dysgraphia. A later professor took exception, failed him for the course, and then had his records annotated. And, who can forget the fellow who had to crawl up a flight of stairs to get to court?

I do take strong exception to the comments of annonymous. Firstly, making the community accessible is something that should be done, period. If a small business chooses to build in a manner that is not accessible, then they should bear the liability of their illegal actions. Businesses have been on notice for well over a decade, and now they are whining that they want more time. Hogwash. It does not take a rocket scientist to know that they are not accessible. Sitting back and doing nothing is not acceptable. The ADA does not require that they expend huge sums of money, just to do what is reasonable. My community just built a library which is, as far as I can tell, in 100% compliance. The architects were asked how much it cost to make it so, and they reported that the cost was less than 0.01% of the building cost since larger bathrooms, elevators, automatic doors, etc. were all part of the plans to begin with.

Further, equating denying access to those who are disabled with bugs and high priced jeans misses the fundamental point of the law. These business are public accommodations, and they must be accessible to all on an equal basis regarding the existence of a disability. They can charge what they want, etc. but the person in a wheelchair who wants to buy $1000.00 jeans has the right to do so.


At 1/30/2006 3:15 PM, Anonymous TheProbe said...

And a PS to my comments...

While a person may be confined to a wheelchair, they should not be confined by the wheelchair.


At 1/30/2006 3:29 PM, Anonymous schopenhauer said...

You cannot eliminate disability by law: only transfer it to others: in this case everyone took a big hit: Don't have a professor in your class? It's because (in part) the university spent millions destroying buildings to add ramps and lifts.

Coffee shop near by closed down?: it's because (in part) they couldn't justify a hundred grand to make their shop accessible.

Can't get a seat on the bus?: This is because they've removed 6 seats from every single bus, to create a space where someone might, one day, want to sit in a wheel chair.

Buses so infrequent you don't bother getting them anymore: it's because they had to reduce fleet size by 20% to pay for kneeling buses.

All for what? Massive costs, for, in fact, very little gain.

Very little gain even for people in wheel chairs.

How did it happen? concentrated perceived benefits and distributed costs: Disabled people thought they'd benefit from these interventions. And, while millions of business owners and billions of customers are impacted, none were impacted enough, singly, to devote months and dollars to fighting the bills.

Finally, thankfully, the costs are clear enough to enable classes of people crippled by this legislation to fight back.

Next time you are walking up a ramp 12 times longer than the stairs... think about what real empathy is: understanding all the distributed costs, for all the people who are affected by rules.

People too poor to afford the new improved service. People too poor to have the choice to take a cab when the transport system is crippled by redesign costs. People who don't get to see works of art because the gallery blew its 10 year budget on ramps and electric doors.

Rights are costs to others: ask yourself: can I ethically impose a cost on all the people affected?

Often the answer is no.


At 1/30/2006 8:41 PM, Anonymous Anonymous said...

I guess that there's a message sent out to people in wheelchairs according to whether or not they can get in the front door or to the second floor. The message is, you are valuable. When you think about how people age, and how aged people end up using walkers and that walkers are hard to use on stairs, but easier to use on ramps, then, guess, what?

The ramps are for ALL of us.

My child uses a wheechair and even in the best retrofitted and custom built stores, etc, there are problems, but hey, I'm happy.

I am responsible for helping get this adult offspring of mine clothing that she likes and that fits, more or less... and for helping her to enjoy life by taking her to the occasional musical production or movie or out to a park.

Her brother suffered alot because the sister couldn't go on hikes, etc, but man am I grateful for the handicap accessible playgrounds etc that came into existence here when they were little.

These kids were born in the 1980's. When the handicapped one was 4 and 5 and used a "travel chair" a glorified stroller... I had to carry this kid up a flight of stairs so she could enjoy the children's section of the library in Coeur d'Alene, ID, where we lived. I've carried her up flights of stairs to take her to shops that I thought were worth it, but after a while that was too dangerous to do. There are still plenty of places that are off limits to my handicapped adult child, and so off limits to me, too, in some ways.

I guess I don't feel too sorry for the small business owners, I think they could be compensated somehow if it was shown that the retrofitting, fitting was that horrific. As I said,


At 1/30/2006 11:06 PM, Anonymous CardioNP said...

I have not done any research to verify my recollection. But IIRC, there was a disabled individual living in CA who serially sued businesses - alleging discrimination under ADA statues. Pretty much just to line his pockets. So, while I can sympathize with those in wheelchairs, I do not think that they have the right to sue for financial gain if a business is not accessible. Filing suit to correct access issues is one thing, but I do not think that the disabled individual should obtain monetary compensation. Otherwise you end up with suit happy people out to make $ off of business owners.


At 1/31/2006 8:54 AM, Anonymous TheProbe said...

CardioNP refers to the 'drive by litigator' and decries the fact that this litigation costs businesses money. With the ADA being over a decade old, these businesses have not gotten the hint as yet, and something has to wake them up. So, when caught, they whine that they need more time (Mommy, I know you told me to clean my room last week, but I did not get to it as it was not as much fun (i.e. profit) as playing with Johnny), or that it costs them money. Since they did not get the hint with the passage of the law, then they need a lesson, and the tuition charged is the cost of the litigation.

The California ballot initiative is called "The Opportunity To Repair Act of 2006". Deceptive, eh? Why do they need more time? Isn't nearly 15 years long enough?

I do civilian handiapped parking enforcement, and when the driver comes to argue with me about my sticking my nose in their business, I merely tell them that I am arranging to charge them for learning to obey the law.

The California ballot initiative is disgusting, and I hope it is soundly defeated.


At 1/31/2006 10:25 PM, Blogger Ahistoricality said...

"schopenhauer"'s alarmism about the costs of compliance shutting down businesses and hampering larger institutions is precisely the kind of "argument by potential harm" that the California initiative relies on: in fact, the ADA makes all kinds of exceptions for smaller establishments, for older establishments, and the costs involved in compliance are usually pretty small. And, as someone else noted, there are often advantages to the rest of us "temporarily abled" folks. As society ages -- and as a society we are aging, not just because of baby boomers but because of the rise in life expectancies and decline in birth rates -- mobility and other access issues will be increasingly relevant to wider and wider portions of the population.


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