The Journal of The American Paraplegia Society

ISSN: 0195-2307 (Print) (Online) Journal homepage: http://www.tandfonline.com/loi/yscm19

MUNRO LECTURE—The Americans With Disabilities Act James J. Weisman To cite this article: James J. Weisman (1992) MUNRO LECTURE—The Americans With Disabilities Act, The Journal of The American Paraplegia Society, 15:1, 3-6, DOI: 10.1080/01952307.1992.11735855 To link to this article: http://dx.doi.org/10.1080/01952307.1992.11735855

Published online: 02 Jun 2016.

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Date: 24 August 2017, At: 19:30

MUNRO LECTURE -The Americans With Disabilities Act James J. Weisman, Esq. nJuly 1990, President Bush signed the Americ~s with Disabilities Act (ADA), the most sweepmg piece of civil rights legislation since the Civil Rights Actof1964. ADA provides more protection from discrimination on the basis of disability than any state's law has ever provided to people with disabilities, and in fact, is the most expansive and inclusionary prohibition of discrimination ever enacted by any country. Discrimination on the basis of disability is directed at people with disabilities because of their disabled status. Status based discrimination e.g. racial and religious discrimination, have been discussed for centuries, and Americans are confident that they can identify religious and racial discrimination. The disability rights movement is relatively new, and as such, is not wholly understood by the public or even many people with disabilities.

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WHO IS DISABLED?

The ADA defines "disability" as a physical or mental impairment that substantially limits one or more major life activities. Individuals are also "disabled", and thus entitled to the ADA's protection, if they have a record of having such impairments or are regarded as having such impairments. "Major life activities" include caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. A person who has a record of a substantial impairment can have a history of having a mental or physical disability which no longer exists. They still may be discriminated against and therefore Congress chose to afford protection to these individuals. Persons who have histories of mental

illness, heart disease or cancer often face discrimination despite their recovery. Individuals regarded as having an impairment, as defined by ADA, are people considered to have a disability encompassed by ADA, so they are subjected to discrimination on the basis of disability even though they are not disabled. These people may have a minor impairment which is incorrectly considered to limit a major life activity. Cosmetically disfigured individuals, such as burn victims, may be considered to have a disability by others, even though they do not have an impairment which substantially limits a major life activity. Congress specifically excluded current users of illegal drugs from the protections of ADA and drug addicts are, therefore, not considered disabled. Rehabilitated addicts are protected, as are those participating in supervised rehabilitation programs who are no longer using drugs: Nonusers erroneously considered to be using drugs are protected by the ADA. Congress also took pains to exclude homosexuality and bisexuality from the definition of disability. Also excluded from the definition are transvestism, pedophilia, transsexualism, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, and sexual behavior disorders. AIDS, however, is a covered disability regardless of how acquired. Kleptomania, pyromania and "psychoactive substance abuse disorders resulting from current illegal use of drugs" are also conditions excluded from coverage by the ADA. The Act prohibits discrimination against people who associate with disabled people. This protects persons whose family members, lovers or friends have disabilities.

James J. Weisman is Program Counsel for the Eastern Paralyzed Veterans Association. The Munro Lecture was delivered at the Thirty-Seventh Annual Meeting of the American Paraplegia Society-September 4, 1991.

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THE NONDISCRIMINATION MANDATES The ADA can be divided into four principal sections that affect telecommunications, transportation, employment and all places of public accommodation. TELECOMMUNICATION The least controversial section of the ADA, as well as the section which will benefit the most people in the least amount of time deals with telecommunication, primarily the telephone. Title IV of the ADA requires that every telephone company in the US offer "relay" services to customers with communication impairments, or who wish to contact people with communication impairments. The individual with a communication impairment, i.e., a speech or hearing difficulty which makes using standard telephone equipment impossible, can use a TrY or TDD (teletype equipment) to call the telephone company's relay operator. The message is typed into a teletype which the operator reads. The operator contacts the party with whom the individual with the communication impairment would like to speak and relays the teletype message using voice to the individual being called and via teletype to the caller. The process can be reversed for those who wish to speak into the telephone and call a person with a communication impairment. This system already exists in several states, and was not controversial when proposed by the Congress because the telephone companies will pass along the capital and operating costs of relay services to all telephone customers. These services must be in place by July 1993 and will provide those with communication impairments with access to a telephone system upon which our society is dependent and from which they have been excluded in the past. In addition to providing employment opportunities, deaf people will be able to order a pizza and find out what time a movie is starting and otherwise enhance the quality of their lives dramatically, in a short period of time, at very low cost. EMPLOYMENT The employment, transportation and public accommodation provisions of the ADA were controversial when proposed and debated by the Congress and will remain controversial for several

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years as implementation begins. The controversy concerning the ADA is caused by the lack of A collective consciousness about the rights of people with disabilities. Americans are confident that they can identify racism and sexism. Discrimination based on disability, however differs from other forms of status based discrimination in that animus is rarely an element of the offense. Moreover those inclined to engage in racist or sexist behavior may refrain from doing so because of the knowledge that others consider such behavior to be morally reprehensive whereas discrimination based on disability is not likely to be identified as easily. This is because such discrimination is often rooted in altruism. Americans feel good about protecting and patronizing disabled people even when such treatment yields unnecessarily separate and unfair results. Title I of the Act prohibits employers from discriminating on the basis of disability. In July 1992, employers of 25 or more employees will be prohibited from discriminating against people with disabilities. In July 1994, employers of 15 or more will be subject to the same mandate. Nondiscrimination requires more than merely refraining from making hiring, firing and promotion decisions without regard for the disability of the employee. It also requires employers to make "reasonable accommodations" when necessary, in order to employ an individual with a disability. In order to be "reasonable," an "accommodation" must be accomplishable without subjecting an employer to "undue hardship." The undue hardship determination is subjective, and is made by considering the resources of the specific employer and the accommodation necessary. Examples of accommodations which may be reasonable, and therefore may be required, are, making architectural changes to existing facilities used by employees and restructuring job assignments or hours. In order to comply with Title I's requirements the employer must determine whether or not a person with disability can perform the essential functions of the job, with or without reasonable accommodation. If the employer determines that accommodation is necessary, such accommodation must be made, unless undue hardship can be

Journal of the American Paraplegia Society

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demonstrated. Pre-employment physical examinations are prohibited. Employment offers can be conditioned upon passing a physical. However, all employees must be subject to the same physical examination and any tests administered must relate to the requirements of the job. The employment provisions of the ADA are not onerous because reasonableness mitigates the employer's accommodation responsibility. Moreover, the Internal Revenue Code has been amended to offer tax relief to employers, as well as to proprietors of places of public accommodation, who incur ADA required expenses. Small businesses, i.e., businesses grossing less than one million dollars per year or employing less than 30 persons, can claim a tax credit equal to 50% of the amount expended between $250 and $10,250 for any tax year. The maximum tax credit available to small businesses under Section 44 ofthe Internal Revenue Code is $5,000 per year. Section 190 of the Code applies to all other business and allows $15,000 deduction per year for ADA required expenses. The benefits of Title I to people with disabilities is obvious since only one state required employers to fund accommodation expenses prior to ADA passage.. Many states prohibited discrimination on the basis of disability in employment but did not impose statutory responsibility on employers to accommodate the needs of disabled employees. State laws merely required employers to refrain from engaging in discriminatory practices such as not hiring or promoting people because they were disabled. The employment provisions of the ADA will benefit businesses, as well as disabled workers. The tax credit available to small businesses, for example, will allow the cost of new entrances to be deducted from tax liability instead of depreciated over the useful life of the improvement. New entrances, which happen to be accessible, will attract new customers and would be unaffordable by many small businesses without the Section 44 tax credit. Most importantly though, facilitating the financial independence of people with disabilities by allowing them to work will end their dependence on taxpayers. This will help business by reducing the tax burden imposed by unemployed and under-employed people with

disabilities and by creating new wage earners who consume products and services. NEW CONSTRUCTION AND RENOVATION Pursuant to Title III of the ADA all newly constructed buildings in excess of two stories must be accessible by elevators. The Fair Housing Amendment Acts of 1988 required that newly constructed multiple dwellings have common areas, such as hallways and laundry rooms, accessible to people with disabilities. All doorways must be wide enough for wheelchair passage. Bathrooms and kitchens must meet minimum accessibility criteria as determined by the US Department of Housing and Urban Development. Therefore, housing is not addressed by the ADA. Newly constructed medical facilities and shopping malls must be accessible even if less than three stories. The ADA also requires that renovations be accessible and mandates that if only a portion of a building is being renovated that an accessible path oftravel be created to that portion if this can be accomplished without undue financial burden. NON-DISCRIMINATION IN PLACES OF PUBLIC ACCOMMODATION AND TRANSPORTATION Proprietors of places of public accommodation must make those places accessible to people with disabilities by January 1992 if access is "readily achievable". To be "readily achievable" accessibility must be accomplishable without great difficulty or expense. "Undue financial burden" therefore, mitigates the responsibility to render a place of public accommodation accessible. Elevator installation is not required in existing places of public accommodation under this section of the Act but may be if an extensive renovation is undertaken. If access to existing places of public accommodation cannot be readily achieved, proprietors must provide alternatives to people with disabilities so they can use their facilities. A dry cleaner could carry the dry cleaning from the store to the disabled individual who waits in his car; the waiter can read the menu to a visually disabled diner and the bar tender can bring a drink to the table if a disabled individual were

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unable to sit at the bar. In a sense, this portion of the ADA is an attempt to legislate kindness and consideration. The transportation provisions of the ADA found in Title III address all forms of public conveyances except airplane travel. This is because in 1988, Congress passed the Airline Access Act which imposed a non-discrimination obligation on airlines. Section 504 of the Rehabilitation Act of 1973, which prohibited discrimination on the basis of disability by recipients of federal financial assistance, required transit operators to provide services to people with disabilities. After 17 years of regulation writing, advocacy efforts and litigation, Congress finally imposed specific mandates on all forms of publicly operated transportation. In the past, under Section 504, bus operators were allowed to comply with the nondiscrimination mandate by purchasing accessible buses or providing paratransit/van services. Title III of the ADA now requires bus operators to purchase only accessible buses when buses are bought and to operate paratransit systems as well. The paratransit contemplated is to be available only to those who cannot use accessible mass transit and must meet minimum service criteria. Paratransit fares, operating hours and service area must be comparable to the mass transit system's. No retrofitting of buses is required, i.e., transit operators will not have to lift equip inaccessible buses already in their fleets. It is contemplated that as transit systems become accessible, there will be a greatly reduced demand for the paratransit service required by the ADA. All new rail stations and bus terminals must be built to be accessible to people with disabilities. "Key" commuter rail stations must be made accessible by 2010, and "key" rapid rail stations (subway) must be made accessible by 2020. Key stations are those with high ridership, those which are fed by other modes of trans portation, such as bus and private car, and those which are considered special trip generators, such as sports arenas and universities.

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All Amtrak stations must be accessible by 2010. In Title III, Congress granted a six year period in which to purchase inaccessible "overthe-road" buses (Greyhound style) to private operators who do not use their buses for mass transit service, such as Greyhound. After this period expires, operators must purchase accessible buses. CONCLUSION

Some 43,000,000 Americans have one or more physical or mental disabilities and this number is growing as our population as a whole grows older. In order to maintain decent lifestyles, each succeeding generation of Americans will have to work longer than any generation which preceded it. We will therefore require accessible housing, job sites and transportation and a society which is willing to make accommodation so that all citizens can lead productive and fulfilling lives. The Americans with Disabilities Act affords no preferences to the disabled community, rather it offers equality of opportunity to those who wish to end isolation and segregation and become selfsufficient. In enacting the ADA, the President and the Congress have provided a guide for right-thinking Americans who wish to enable their disabled neighbors to end the dependence on government benefits, enter the labor force, pay taxes and participate fully in American life.

Journal of the American Paraplegia Society

Volume .15 Number 1

Munro Lecture--the Americans with Disabilities Act.

The Journal of The American Paraplegia Society ISSN: 0195-2307 (Print) (Online) Journal homepage: http://www.tandfonline.com/loi/yscm19 MUNRO LECTUR...
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