by Justin Coile                                                                                                                                                November 27, 2011

Introduction

        The Americans with Disabilities (ADA) was passed in 1990 as a response to the market failure that occurred due to the disadvantages and discrimination experienced by people with disabilities. The ADA has been revised and amended on several occasions since 1990, but continues to remain relevant in the marketplace. The ADA consists of five main titles responding to four main problems. These problems occurred in the areas of employment, public transportation, public accommodations and telecommunications. The disabled were found to be disadvantaged in all of these areas to some extent. The intent of this act was to reduce the impact of these disadvantages.

        In a completely free market, assuming a lack of compassion and sympathy, many people with disabilities would simply be discarded and forgotten because of their special needs. It is not necessarily economically efficient to build a ramp up to your business, and otherwise retrofit your building, to allow access to the relatively few customers who are wheelchair bound. When making this decision with equal access and opportunity in mind, the decision to make your business handicap accessible is a no brainer. Think about the frustration experienced by a wheelchair bound person that is limited in where they are able to go and what they are able to do simply because the people constructing the place they want to be did not think about how they would get to and through the front door.

History

        The Americans with Disabilities Act of 1990 was derived from the civil rights movement that had been occurring in America over the previous few decades. There had been many steps taken to try to compensate for the inequalities of disability, but a comprehensive bill designed to protect the disabled remained elusive.

        Lowell P. Weicker, Jr. first introduced the Americans with Disabilities Act to the United States Senate on April 28, 1988. This was far from the first time legislators sought to protect the freedom of the disabled. The first such act was passed in 1948 and functioned to protect disabled veterans of World War II by prohibiting the United States Civil Service from discriminating in employment based on physical disabilities. The Architectural Barriers Act was enacted twenty years later to mandate buildings constructed or altered by the federal government to be accessible and usable by people with disabilities (Weicker, 1991).

        Multiple other laws helping disabled people were passed up to 1975, when two major pieces of disability rights legislation were passed. The Education of All Handicapped Children Act guaranteed equal access to “free”, appropriate public education for disabled children. The Developmental Disabled Assistance and Bill of Rights Act expanded the rights of developmentally and mentally disabled individuals, legitimizing these types of disabilities to the level of physical disabilities (Weicker, 1991).

        In 1986 the National Council on the Handicapped issued a landmark report titled Toward Independence. One of the legislative recommendations of this report was that ““Congress should enact a comprehensive law requiring equal opportunity for individuals with disabilities, with broad coverage and seeing clear, consistent, and enforceable standards prohibiting discrimination on the basis of handicap.” (National Council on the Handicapped, 1986). This was the beginning of the Americans With Disabilities Act. It took two years for an introduction of a bill to the US Senate, and another two years of debate, negotiation and compromise to pass the Americans with Disabilities Act of 1990.

The Market Failure

        It is evident just looking at the word “disability” that having one is a disadvantage and places you in a position of inequality in a free marketplace. There are issues with perception, valid concerns of limitations, and physical barriers that must be overcome for a disabled person to receive equal treatment and be offered the same opportunities as a non-disabled person (Corbet & Madorsky, 1991).

        Consider two applicants for a job, all things being equal with the exception that one applicant is a quadriplegic. Assume there is no ADA and the employer lacks compassion for the disabled. A rational employer will hire the non-disabled employee to avoid the hassle of making the workplace accessible to the wheelchair bound employee. There are costs associated with retrofitting a workplace to the point that a quadriplegic will be able to perform all necessary activities of daily living, such as parking or receiving transportation and toileting, without restriction. The Americans with disabilities act seeks to remove the disadvantages of hiring the disabled person, and prohibits discrimination in the hiring process.

        Another potential problem could prevent the quadriplegic from even arriving at the interview. Many of the vehicles designed for transportation are simply not equipped to accommodate a person with such limited mobility and extra equipment; I have even found many of these vehicles are poorly equipped to handle my not so extraordinary six-foot height. The Americans with Disabilities Act confronts the issue of transportation difficulties with a mandate that public transportation authorities may not discriminate against the disabled in the provision of their services. Newly purchased vehicles must be handicap accessible and existing equipment needs to be retrofitted, within reason.

        Even if the quadriplegic can land an interview and arrive there, there is still the issue of access to the building where the interview is to be conducted. Even the best of wheelchairs cannot negotiate stairs and narrow hallways, and many buildings are just not designed with the disabled in mind. It is not hard to see how a healthy construction crew could overlook the simple things that prevent accessibility and usability of the buildings they construct. The ADA obligates building designers to think about this by mandating that public accommodations (retail stores, doctors offices, zoos, etc.) must comply with basic nondiscrimination requirements that could result in exclusion, segregation or unequal treatment. The ADA also provides architectural standards that increase handicap accessibility of these public accommodations.

        Suppose another disabled applicant has a phone interview from out of state. The nature of this applicant’s disability is deafness and they are unable have a conversation using a traditional voice telephone. The ADA ensures this person has access to such an interview by requiring that telecommunications providers maintain a telephone relay service that enables hearing and speech impaired people to communicate via telecommunication devices for the deaf (TDDs), teletypewriters (TTYs) or a third party communications assistant.

The Fix

        As previously mentioned, the Americans with Disabilities Act of 1990 was signed into law on July 26, 1990 by president George H.W. Bush (Weicker, 1991). This was the government’s response to some of the market failures that affected people with disabilities. It is meant to be a comprehensive law protecting the disabled population’s freedom from discrimination and ensuring equal access. This act is broken down into five main titles, each of which deals with a particular area of inequality. Each of these titles will be broken down and examined further in the remainder of this section.

    TITLE I

        Title I of the ADA is designed to protect the employment rights of individuals with disabilities. It requires that businesses with more than fifteen employees provide accommodations and an equal opportunity for otherwise qualified employees to enable them to experience the full range of benefits enjoyed by the others. This title prohibits discrimination in hiring practices and recruiting, and goes so far as to restrict potential employers from inquiring about a disability before a job offer is submitted. The employer also cannot discriminate in the areas of pay, promotions, training or other privileges of employment including social activities. The employer must take steps to reasonably accommodate the known physical and mental disabilities of its employees, unless this will result in undue hardship for the company. (ADA, 1990)

    TITLE II

        Title II of the ADA confronts issues with public transportation and state and local government activities. The transportation portion of title II prohibits the public transportation authorities from discriminating in providing their services to the disabled. This guarantee of services covers publicly operated buses, subways, railway transportation, and other mass transit services under the public umbrella. Newly manufactured equipment must meet accessibility requirements, while a good faith effort must be made to retrofit older equipment and purchase used resources that meet these requirements. Para transit, which is a system that picks up and delivers severely disabled citizens at their destinations, should be provided to those who cannot utilize traditional forms of public transportation, unless this creates an undue burden on the service provider.

        The other portion of title two pertains to state and local government activities. This act requires that disabled people have an equal opportunity to benefit from the services, programs, and activities of these government entities. This law applies regardless if these activities receive federal funding or not. The buildings utilized by these local governments must comply with architectural guidelines so that they are accessible to the disabled. If this cannot be accomplished, the services provided in these buildings must be offered in alternate locations that are accessible. There is also a provision that protects these governments from undue burden financially or administratively. These governments must modify policies, procedures and practices to avoid discrimination based on disability unless they can show that this requirement is fundamentally prohibitive. (ADA, 1990)

    TITLE III

        Title III of the ADA was formed to ensure that public accommodations are not discriminating against the disabled. This title covers all entities that provide services to the public, including; retail stores, physicians offices, hotels, convention centers, sports venues, recreation facilities, and many other venues where private services are enjoyed by the general public. This title also covers privately operated transportation services that serve the public.

        This title mandates compliance with architectural standards that enhance access to those with disabilities. There is also a mandate that older buildings be retrofitted, but the bill allows for exceptions if there is much difficulty or expense involved. New construction and alterations must comply with architectural standards in commercial facilities. There must also be equal access when it comes to courses and examinations, policies, procedures and practices. Accommodations for hearing impaired and deaf must be provided for in certain situations (Mudrick & Schwartz 2010).

    TITLE IV

        Title IV seeks to provide a solution for limitations in communication, specifically telecommunication, for people with hearing or speech disabilities. Telephone companies are required to develop and maintain a telecommunications relay service. This relay service provides the infrastructure needed to utilize technology such as teletypewriters and telecommunication devices for the deaf. Callers can also use a third party communications assistant, such as a sign language interpreter, through the telecommunications relay system. There is also a provision for closed captioning on federally funded public service announcements, and this has had a further reaching effect than what is strictly mandated. (ADA, 1990)

    TITLE V

        Title V of the ADA is referred to as “miscellaneous provisions”. This title covers various additions regarding the exclusion of state immunity, the implications of the act on congress and its relationship to other laws. This section also specifies disorders that are explicitly not covered by the ADA, some examples of these are; transvestitism, kleptomania and pyromania, as well as disorders caused by current illegal drug use. (ADA, 1990)

The Results

        The Americans with Disabilities Act has had many successes and generally is viewed as having a positive outcome. Few deny the need for this act, people know that the disabled need to be protected from discrimination, and its importance has been generally accepted. The law has also sparked policy changes in other areas not under the scope of the ADA, and has risen awareness of the hardships faced by the disabled. This has led to the ADA having a further reaching impact than what is explicitly covered under the law (Yee & Breslin, 2010).

        Accessibility to buildings and other areas is now required by law and must be thought about by architects and builders when designing these buildings. Before the ADA, the disabled were often overlooked when designing certain features of new buildings because of a lack of awareness. The accessibility of the majority of buildings has improved as a result of the ADA, although there is still more work to be done (Hernandez et al, 2008).

        Despite the successes of the law, there has been criticism. Much of the criticism of the ADA is from people who are just ill informed, as some of the criticisms made of the ADA are in fact not part of the ADA but are included in other government policies and programs. Some expect the ADA to solve all of the problems encountered by the disabled, but this is not a realistic expectation (Russell, 2002). Another criticism is the cost of implementing the changes required to comply with the law, although the ADA does not require excessive financial or administrative expense to attain compliance. It is not always rational to justify lofty expenses to increase accessibility for a small segment of the population; there have been suggestions of increased public funding for these improvements to offset these costs (Moss & Malin, 1998).

        Most of the criticisms of the ADA are related to the employment issues addressed in title I. The actual impacts of title I of the ADA on businesses has been the subject of much debate (Richardson, 1994). While there have been clear improvements as a result of the ADA in much of the areas covered by the law, the effects of the act on employment of the disabled is uncertain (Acemoglu & Angrist, 2001). There have been studies that suggest there has been a negative effect on employment and wages of the disabled as a result of this act. These studies show that after passage of the ADA, the employment of men with disabilities has on average been 7.2 percent lower than it had been before the act was passed, and there has been no change in wages (DeLeire, 2000). Seventy-one percent of people with disabilities were unemployed in 1998, and the unemployment rate for the disabled has been consistently higher, and rising, after passage of the ADA (O’Day, 1999). There are many suggestions as to the cause of these statistics, but there are evidently some unintended negative effects of the increased regulation and enforcement of the anti-discrimination policies in the ADA. There is also a greater incentive not to work after a disabled person starts receiving some of the benefits of welfare programs established by the government. Whatever the cause of the lack of success in equal opportunity employment of the disabled, it is clear that the Americans with Disabilities Act has fallen short of reaching its goals in that regard.

Conclusion

The Americans with Disabilities Act of 1990 was conceived and enacted to be a comprehensive law with a broad scope that protects the right of the disabled to be free from discrimination and have equal opportunity in the marketplace. The free market failed to provide this protection and the disabled were put at a competitive disadvantage compared to the general population. This act has succeeded in leveling the playing field to an extent by increasing accessibility and reducing discrimination. While the disabled still face hardships and the law is far from perfect, the nation is better off as a result of the passage of the Americans with Disabilities Act.

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