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The ADA at 30

Lessons from the pandemic.

Written by Brian East


President George H.W. Bush signed the Americans with Disabilities Act into law on July 26, 1990, declaring it “the world’s first comprehensive declaration of equality for people with disabilities.”1 The ADA became a model for similar laws around the world. The U.S. Supreme Court recognized that one of its “most impressive strengths” is its “comprehensive character,” and that it has been described as “a milestone on the path to a more decent, tolerant, progressive society.”2

Many lawyers are familiar with the portion of the ADA related to employment discrimination. But the ADA also prohibits discrimination by many private businesses and governmental offices. It also requires reasonable accommodations, as well as “auxiliary aid and services” like sign-language interpreters, readers, and Braille content. And it created both the “paratransit” system for those who cannot use the mainline bus service, as well as the “relay” system that allows telephone contact between people who are deaf and those who are not.

A generation has now grown up under the ADA. For them, it may be routine to see curb cuts and ramps, sign-language interpreters, wheelchair-accessible buses, etc. The ADA has also fostered an explosion in assistive technology, allowing individuals with disabilities to more fully integrate into modern society. This country can rightly take pride in the ADA’s passage.

The ADA’s 30th anniversary is thus worth celebrating. But it also comes at a time when the national mood is far from celebratory because of the coronavirus. The challenge from COVID-19 affects us all, but it affects people with disabilities in some unique ways, some of which are harmful, even deadly. The pandemic highlights some of the ADA’s successes, but it also points out some goals that we have yet to achieve.

 

Teleworking and Alternatives to In-person Activities
We have seen the country shift to teleworking in the space of several weeks. Teleworking has always been an important accommodation for many individuals who have disabilities that, for example, suppress immune functioning, cause flare-ups that are hard to predict, or prevent access to personal transportation. But the courts and some employers have been slow to recognize its possibilities.3 Many now have a new appreciation for the technology. Use of remote-access technology is not confined to the workplace. Texas courts were quick to move to remote hearings,4 and many churches hold virtual services.

Another pandemic-related change is the availability or expansion of delivery services in many communities. Again, this can limit the spread of COVID-19, but it also increases access. The ADA also requires shopping assistance for many individuals with disabilities,5 and we have seen a resurgence in that as well, albeit with distancing provisions.

 

Communication Access
The pandemic has also highlighted successes and failures in complying with the ADA’s communication-access requirements. For example, many governmental closure orders were disseminated via the internet, but some were in a format that was not accessible to individuals with visual and print disabilities who use screen-reader technology. The ADA requires that most web-based content be made accessible—and doing so provides various benefits.6 Televised pandemic information by government officials has sometimes featured captioning and sign-language interpreters7 and sometimes not. And even when provided, those elements have not always been usable.

 

Voting
The ADA has also had a positive impact on access to the ballot box. For example, it mandates ballot-marking systems that are usable by individuals who are blind, use wheelchairs, or have limitations in manual dexterity. It also requires that polling places be physically accessible. But the pandemic raises new issues. Many advise that typical methods of in-person voting may increase the risk of spreading the virus, which can be particularly fraught for individuals with disabilities that are also risk factors for serious illness if infected.8 Individuals who are blind may have trouble getting to the polls safely, or maintaining social distance once there. Some states allow mail-in ballots for everyone, but Texas does not. Although Texas law allows mail-in ballots if “a sickness or physical condition” would create a “likelihood of needing personal assistance or of injuring the voter’s health,”9 the ADA is broader, and it applies to voting.10 But mail-in voting is not accessible to all people with disabilities. For example, written mail-in ballots may prevent blind voters from privately marking them.

 

Transportation
The ADA made great strides in improving transportation access, mandating accessible train cars, rail stations, over-the-road and city buses, and paratransit systems. But public transit may now present a greater risk of virus transmission. Some trains and buses may be crowded and may require new distancing and cleaning protocols. In some locations, paratransit may be a shared-ride service or may require an in-person renewal interview, unless changes are put in place. In other locations, transit services are contracting with rideshare companies, but their fleets may not be accessible to passengers using wheelchairs, for example. For these reasons, creating alternatives to in-person commerce can be important.

 

Integration Mandate
One of its most important provisions is the ADA’s requirement that individuals with disabilities be served in the most integrated setting.11 Thus, unnecessary segregation in congregate facilities—like nursing homes or psychiatric hospitals—may be discriminatory.12 As a result, many individuals have moved from large group facilities to their own homes in the community. But many individuals still live in congregate facilities with no meaningful option for community living. This may violate the ADA, and it has also placed many individuals in virus hotspots, creating a much higher risk of COVID-19 and a much greater threat to those with risk-factor disabilities. Residents of nursing homes and assisted-living facilities represent nearly half of all COVID-19 deaths in Texas.13

 

Detention Facilities
Individuals with such risk factors are also present in jails and prisons. Some facilities have instituted “compassionate release” programs for individuals with such disabilities in the face of the pandemic. Most have not, and for those, social distancing is nearly impossible, so other measures must be taken. Several lawsuits allege that these measures have been inadequate and violate the ADA’s reasonable-modifications requirement. Some courts have found the response by detention facilities to be adequate, and some have not.14

 

Health Care
The ADA is also playing an important role in health care during the pandemic. Telemedicine allows remote access to doctors and health care providers. This makes sense from a public-health standpoint, and it may allow more access for many individuals with disabilities. On the other hand, video remote sign-language interpreting, or VRI, may provide much less effective communication than in-person interpreting and may violate the ADA in some circumstances.

The ADA is also important for in-person health care. Generally, the ADA does not control in cases of medical negligence. But it does require facilities that are physically accessible, as well as communications that are accessible to individuals who are deaf or blind. It also prohibits discriminatory treatment by health care providers. Unfortunately, some hospitals and government systems have triaging plans that facially discriminate against persons with disabilities. In response to complaints, the federal government has explained that “persons with disabilities should not be denied medical care on the basis of stereotypes, assessments of quality of life, or judgments about a person’s relative ‘worth’ based on the presence or absence of disabilities or age.”15

 

Conclusion
As described above, the ADA applies to many aspects of modern life, and it has undeniably resulted in a much more inclusive society. The coronavirus pandemic has highlighted three different realities for individuals with disabilities. First, the pandemic may create greater opportunity for virtual or remote activities, and this has the potential to revolutionize access in many ways. Second, the virus has highlighted areas in which we have yet to achieve the ADA’s promise, sometimes creating serious risks for individuals with disabilities. Third, it has created new problems for which we might look to the ADA, and to our own creativity, for solutions. As the U.S. Supreme Court recently explained, civil rights statutes like the ADA are not interpreted to apply only in situations that Congress contemplated; instead, they apply in all contexts that are within the broad mandate of the statutory language.16 TBJ

 

Notes
1. In Memoriam: President George H.W. Bush, U.S. Access Bd. (Dec. 3, 2018), https://www.access-board.gov/news/1942-in-memoriam-president-george-h-w-bush.
2. PGA Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001).
3. See Bilinsky v. Am. Airlines, Inc., 928 F.3d 565, 573 (7th Cir. 2019): “Technological development and the expansion of telecommuting in the twenty-four years since Vande Zande likely mean that such an accommodation is not quite as extraordinary as it was then. That inquiry is context-specific; a work-from-home arrangement might be reasonable for a software engineer but not for a construction worker.”
4. See Tex. Judicial Branch, Court Coronavirus Information: Electronic Hearings (Zoom), https://www.txcourts.gov/court-coronavirus-information/electronic-hearings-zoom/.
5. See U.S. Dept. of Justice, Civil Rights Div., Disability Rights Section, ADA Update: A Primer for Small Business (Mar. 16, 2011), https://www.ada.gov/regs2010/smallbusiness/smallbusprimer2010.htm#policies.
6. See U.S. Dept. of Justice, Civil Rights Div., Disability Rights Section, Accessibility of State and Local Government Websites to People with Disabilities (Jun. 2003), https://www.ada.gov/websites2.htm.
7. For example, Gov. Greg Abbott’s press conferences prominently featured a sign-language interpreter, but the White House and the state of New York both had to be ordered to provide that. Nat’l Ass’n of the Deaf v. Trump, No. CV 20-2107 (JEB), 2020 WL 5411171 (D.D.C. Sept. 9, 2020); Federal Judge Orders Cuomo to Have Sign Language Interpreter at Briefings, NBC New York (May 12, 2020, 12:43 PM), https://www.nbcnewyork.com/news/politics/federal-judge-orders-cuomo-to-have-sign-language-interpreter-at-briefings/2413649/.
8. Ctrs. for Disease Control and Prevention, People with Certain Medical Conditions (Jul. 17, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html.
9. Tex. Elec. Code § 82.002.
10. Nat’l Fed’n of the Blind v. Lamone, 813 F.3d 494 (4th Cir. 2016); Hindel v. Husted, 875 F.3d 344 (6th Cir. 2017).
11. 28 C.F.R. § 35.130(d) (“A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.”).
12. Olmstead v. L.C., 527 U.S. 581, 597 (1999) (“Unjustified isolation, we hold, is properly regarded as discrimination based on disability.”).
13. See John Burnett, Texas Calls In A Strike Force To Try To Slow Coronavirus Spread In Nursing Homes, NPR (Jun. 15, 2020, 5:06 AM), https://www.npr.org/2020/06/15/875392871/texas-calls-in-a-strike-force-to-try-to-slow-coronavirus-spread-in-nursing-home.
14. Compare Ahlman v. Barnes, No. SACV20835JGBSHKX, 2020 WL 2754938, at *12 (C.D. Cal. May 26, 2020) (granting preliminary injunction) and Frazier v. Kelley, No. 4:20-CV-00434-KGB, 2020 WL 2561956, at *35 (E.D. Ark. May 19, 2020) (denying preliminary injunction). Note that the Supreme Court has granted a stay of the injunction in Ahlman pending appeal. Barnes v. Ahlman, No. 20A19, 2020 WL 4499350 (U.S. Aug. 5, 2020).
15. U.S. Dept. of Health & Human Servs., OCR Issues Bulletin on Civil Rights Laws and HIPAA Flexibilities That Apply During the COVID-19 Emergency (Mar. 28, 2020), https://www.hhs.gov/about/news/2020/03/28/ocr-issues-bulletin-on-civil-rights-laws-and-hipaa-flexibilities-that-apply-during-the-covid-19-emergency.html.
16. Bostock v. Clayton Cty., Ga., 140 S. Ct. 1731, 1751 (2020), citing Pa. Dept. of Corrections v. Yeskey, 524 U.S. 206 (1998). As Justice Antonin Scalia’s opinion stated in Yeskey, “the fact that a statute can be applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth.” 524 U.S. at 212 (internal quotes omitted).



Brian EastBRIAN EAST
is a senior attorney in the Austin office of Disability Rights Texas, a nonprofit corporation advocating for the rights of people with disabilities. He has handled a number of disability-discrimination and disability-rights cases in state and federal court and has written and lectured extensively on these issues.

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