Hands Off the ADA

How a Landmark Law To Protect the Rights of Disabled People Is Being Twisted To Oppress Others

People wear protective face masks as New York City begins reopening following restrictions imposed to curb the coronavirus pandemic on July 7, 2020.

The Americans with Disabilities Act (ADA) is one of the most comprehensive pieces of civil rights legislation since the passage of the Civil Rights Act of 1965. This landmark legislation prohibits discrimination on the basis of disability and mandates that people with disabilities have “equal opportunity” to participate in American life. It affects one-quarter of U.S. households and more than 61 million people. And it regulates nearly every aspect of daily living—from what surfaces are used on playgrounds to the inclusion of captions on Netflix films.

In recent years, conservatives have begun a targeted campaign to suppress marginalized communities by misapplying the ADA. This effort has led to the ADA being misused as a tool to engage in voter suppression targeting African American and Native American communities; to support the mass incarceration of people experiencing homelessness; and to promote dangerous and inaccurate information on the coronavirus crisis, among other outrages. The very people who have tried repeatedly to decimate the law are now exploiting it to further an agenda that is antithetical to the ADA’s mission.

The spirit of the ADA was to increase the full participation, access to equality of opportunity, economic self-sufficiency, and independent living of people with disabilities and their families. It was to make the American dream more accessible, open the doors to democratic institutions, and help provide access to jobs so people who were once institutionalized could own their own homes, and so a person could walk into a bank and manage their money with an expectation of access. The story that motivated former President George H.W. Bush to sign the law 30 years ago was that of a young woman, Jennifer Keelan, who wanted to go to the movies with her friends—a simple ask, a rite of childhood, but something unreachable for people with disabilities before the ADA. In recent years, however, the fight for disability rights has been reframed by the media and the opposition as disabled individuals seeking extra rights, with stories amplifying the message that people with disabilities are receiving special treatment rather than equal access and rights. This has led to a flip of the script about the importance of the ADA, instead framing businesses as victims that are forced to comply with a series of standards to provide access to a community they frame as manipulating the system.

Background on the ADA

The Americans with Disabilities Act was signed July 26, 1990, by President Bush after decades of activism and advocacy across the country by disabled people, their loved ones, and supporters. The law passed with bipartisan support—a rarity for modern disability legislation. It is notable that it was signed into law by a Republican president who pledged his commitment to the proposal as part of his presidential campaign, a Republican attorney general, Dick Thornburgh, who had a personal commitment to the cause, and a bipartisan group of congressional lawmakers.

The law defines disability as “a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment.” The ADA also makes it unlawful to discriminate against a person based on that person’s association with a person with a disability.

The ADA is divided in five titles, or sections, that make up the law: employment; public entities and transportation; public accommodations and commercial facilities; telecommunications; and miscellaneous provisions. It does not include a grandfather clause, nor are historic structures exempt from its requirements. In the federal statute, individuals are not allowed to sue for monetary damages, but some state laws allow damages to be collected for violations of the statute.

While the ADA has made significant progress for the disability community, there is still much to do. Approximately 70 percent of the working-age disability community is not employed; 60 precent of polling places are inaccessible; one-third of states have laws allowing the removal of child custody on the basis of a parent’s disability; and major public transportation systems such as the New York City subway system remain largely inaccessible.

Often, those who oppose the ADA portray the law as though it removes rights from people without disabilities and gives them to disabled people. This could not be farther from reality. Rather, the ADA protects the rights not only of disabled people but also anyone who could suddenly acquire a disability—in essence, all of us. Becoming disabled shouldn’t mean that one can no longer expect to be able to go to a bank, pick one’s children up at school, watch a movie, or perform any of the tasks or joys of daily living. For far too long, some have perceived disability rights as something special, or extra, as opposed to a guarantee that all people have the same basic rights to access.

As part of the fabric of civil rights, the ADA has also been a target of attacks from both big business and movements such as the tea party. These opponents of the law falsely argue that the ADA favors the rights of disabled people over those of nondisabled people. More worrisome, this sentiment has begun pervading a multitude of U.S. institutions and structures.

Twisting the ADA to suppress voting

In the fall of 2018, officials in Randolph County, Georgia, proposed closing 7 of its 9 polling locations under the guise of ADA compliance. Despite the U.S. Department of Justice—the enforcing body of the ADA—warning against closing polling places due to ADA violations, those in favor of closing the polls largely rooted their efforts in the ADA and cited a consultant’s report that indicated the seven locations were not in compliance with the 30-year-old law. However, those same exact locations—which mainly served voters of color—were used earlier in the year for the primary election despite the fact that officials were already aware of the lack of ADA compliance. Civil rights groups such as the NAACP and others pushed back on this attempt at suppression, as did Rev Up, a national program amplifying the power of the disability vote.

The closure of these polling locations would have required some voters to travel as far as 30 miles in order to vote in a pivotal gubernatorial election between former Georgia House Minority Leader Stacey Abrams (D) and Georgia’s then-Secretary of State Brian Kemp (R). It is clear that given the location of the polling places, which were centered in low-income neighborhoods and communities of color, their closures were a blatant attempt at voter suppressionone of a series of actions targeting African American voters in particular.

Similar efforts have been tried on tribal lands to heavily restrict the number of polling places available for Indigenous voters. The actions were undertaken even though sovereign nations are not required to comply with the ADA. Moreover, both Indigenous North Americans and Black Americans have disproportionate rates of disability—3 in 10 Alaskan Native and American Indians and 1 in 4 Black Americans have a disability—increasing the negative effect of these efforts to close or consolidate polling places in lieu of making them accessible. This effort wasn’t limited to these instances, as several counties across the country have discussed taking similar actions.

In 2019, the National Disability Rights Network issued a report that, among its many recommendations, focused on remedying the lack of accessibility at polling places on the front end versus closing the spaces to voters. The report provides both temporary and permanent accessibility options for counties to consider to address myriad voting issues, the most timely being access failings in the push for mail-in-only ballots in elections and the lack of ADA compliance in buildings commonly used for voting such as schools and churches.

Misusing the ADA to harass homeless people

In January 2020, Gov. Greg Abbott (R-TX), who ironically is the only wheelchair-using governor in the country, tweeted a desire to use the ADA to examine Austin’s policies related to regulating the movements of people experiencing homelessness. Specifically, Gov. Abbott cited Title III of the law, claiming that homeless people who block sidewalks create a lack of access to public accommodation. It was just the latest in a back and forth between the governor and the city of Austin regarding the banning and relocation of the homeless community. Abbott’s actions and rhetoric ignore that the very same individuals the governor targets could be both homeless and disabled. Making matters worse, in responding to the effect of the coronavirus crisis on the state’s budget, the governor has proposed cuts to home- and community-based services that could lead to even more people with disabilities experiencing homelessness.

While it is still unclear if the ADA is applicable in this instance, Gov. Abbott’s desire to use the ADA as grounds to arrest or relocate homeless individuals blocking sidewalks is a clear misuse of the ADA. It is an attempt to leverage the civil rights protections of one community—disabled Americans—against the rights of another community—homeless Americans.

Meanwhile, anti-homeless acts by residents and city governments muddy actual ADA compliance for people who need to access public spaces. Some city governments use so-called anti-vagrant architecture to curb loitering, which also can make cities less usable for people with disabilities. For example, benches with excessively large armrests that prevent people from lying down or seating that is purposely made uncomfortable may also render the bench unusable for disabled people. Planters that are strategically positioned to prevent people from sleeping or demonstrating can block access for wheelchair users.

Recently, a San Francisco neighborhood placed boulders along its sidewalks to prevent homeless populations from loitering and sleeping in their neighborhood. When the city removed the boulders, San Francisco’s director of public works said, “They are not big enough,” and that they would be working on a permanent solution despite requirements on clear sidewalk width for access purposes. This problem is compounded, as people with disabilities make up 47.6 percent of the homeless population nationally.

Using the ADA to skirt coronavirus mask policies

Following the spread of the coronavirus in the United States, states and localities began passing ordinances requiring the wearing of masks. However, a growing group of so-called anti-maskers began advancing the notion that individuals who deliberately choose not to wear masks could use the ADA as a way to rebuff business owners’ requests to wear a mask. Flyers urged anti-maskers to specifically rely on the right to not disclose a disability as the response for denial of access to public spaces. This quickly gained traction—particularly among anti-vaxxers, those who oppose vaccinations—with people claiming that mask orders were violations of their civil rights. This effort is specifically differentiating nondisabled people who are choosing not to wear masks in public as an act of civil disobedience from those individuals who cannot wear masks due to an actual disability. For example, there are people who, due to asthma, a lack of ears, issues with texture, or skin allergies, may not be able to wear a mask. The challenge for cities and localities, particularly given the heightened tension around the coronavirus, is to determine who is violating the law and who has a legitimate disability related to mask-wearing.

However, the ADA includes a clause stating that “disabilities must be accommodated except when there is a significant risk to the health or safety of others.” Those misrepresenting the law are also counting on the fear of confrontation and potential legal consequences should they challenge those who cite it. At the same time, as part of their refusal to wear masks, they are simultaneously endangering the very people whom mask use would most protect.

Why misusing the ADA is a problem

The use of the ADA to suppress the civil rights of marginalized communities is a blatant misuse of the law and the protections it provides. Civil rights for one community should never be used to oppress other marginalized people.

However, opponents of the ADA have long sought to usurp its protections by attempting to change who counts as disabled. These efforts date back to the 1990s and the Sutton trilogy, when conservative courts ruled that a disability was no longer valid if an individual employed an accommodation to remedy it. For example, a pilot who wore glasses to remedy a vision impairment could be fired for being disabled and have no legal recourse because their glasses would be regarded as a “mitigating measure”; legally, the pilot would no longer be recognized as having a disability. These efforts effectively cut millions of people out of the law’s intentionally broad protections. Those who used an accommodation to successfully fulfill an essential function of their job could be denied the right to sue under the ADA if they faced discrimination. So, in effect, while they were disabled, the court would no longer count them as disabled because of their accommodations. The argument was purposely confusing, and as a result, there was a bipartisan effort to restore the definition of disability in the law and restate that people who were no longer included as disabled—due to “mitigating measures”—were in fact disabled. Those efforts culminated in the ADA Amendments Act, which was signed into law in 2008 by President George W. Bush.

While the federal statute does not allow the collection of damages for ADA discrimination, a small number of state laws do. As a result, state-level efforts have been underway for a number of years to prohibit damages for ADA claims. In California, a major effort led by business interests was launched shortly after the original law was passed. Frequently referred to as so-called ADA notification bills, these laws would prevent people from filing lawsuits until after an “indefinite wait-and-see period” was provided for businesses to attempt to remediate their access issues.

Over the past 20 years, California’s approach has made its way east to Washington, D.C., and Capitol Hill—most notably with a Democratic-sponsored H.R. 620, the ADA Education and Reform Act. Citing the impact of “drive-by lawsuits” on minority-owned small businesses—although driven by the massive hotel and lodging association—the bill was introduced in 2017 to provide practically unlimited time for businesses to comply with accessibility complaints and a vague goal of “substantial progress” which had no grounding in actual modifications to provide access. In reality, the legislation was an attempt to divide marginalized communities who had rapidly bonded and mobilized to save the Affordable Care Act. After passage in the U.S. House of Representatives with bipartisan sponsorship and support, the bill was blocked from the Senate by Sen. Tammy Duckworth (D-IL) and allies who have instead argued for increased enforcement of the ADA and additional funding to support businesses in making modifications to provide access.

The ADA is 30 years old, and yet there are still businesses operating in violation of the law. There are tax credits available and technical assistance and training to help business owners learn what they need to do and access the information they need to become compliant.

Stopping the abuse of the ADA

State and federal dollars need to be invested in funding wraparound services, including but not limited to nutrition programs, community-based mental health programs, home- and community-based services, and others to ensure that people have the services they need in their communities to support housing stability.

Implementation and bolstering of the Affirmatively Furthering Fair Housing Rule would restore the right to access housing for people with disabilities and low-income individuals. It would also help to address issues of being unhoused that have resulted in ADA violations, as noted above.

Amid the pandemic, proactive actions and messaging on the part of local, state, and federal governments regarding social distancing and mask-wearing would support those being harmed by the abuse of the ADA to avoid wearing masks in locations requiring them.

Conclusion

Not only do actions that distort the intent of the ADA actively harm people with disabilities and those who may become disabled, but they also hurt people who do not identify as disabled but who benefit from the law’s provisions and protections. The ADA’s policies are intended to increase access to services, support people at many stages in their lives, and make navigating programs and services easier and more flexible regardless of disability status. For example, there is the so-called curb-cut effect, where accessibility features such as ramps and curb cuts, captions, and large-print books are used by people without disabilities, including parents of young children, older adults, and non-English speakers. Moreover, the current pandemic highlights how ADA accommodations such as flexible scheduling and telework have become standard practice in many workplaces.

The misuse of the ADA to oppress marginalized communities disproportionately affects the people with disabilities inside those communities, compounding the inequalities these individuals face. What is needed in this moment is increased funding for the Department of Justice to enforce the ADA and the ability to levy harsher fines and penalties for entities that are not in compliance. All levels of government need to be held accountable for whether programs, services, buildings, and infrastructure created with government funds are compliant with access laws and have built-in funding to provide accommodations that mitigate potential discrimination. This enforcement cannot be used as a carrot or stick for political gains or business endeavors; rather, the ADA should be treated as the 30-year-old anti-discrimination bill that it is, with the expectation that all ADA-covered entities are in compliance with the law and that efforts to overturn those rights be viewed as what they are: attacks on people with disabilities.

Rebecca Cokley is the director of the Disability Justice Initiative at the Center for American Progress. Valerie Novack is a fellow for the Disability Justice Initiative at the Center.