There is a long historical trail that leads up to the demands that are being made in the name of “civil rights” in America.
Since its beginning, America has struggled with the concept of equality, justice, and fair play when it comes to some segments of its society. Since the inception of this great nation, the unfortunate and often tragic landscape of the country has been scorched with violence, death, genocide, and other horrible incidents of man’s inhumanity to man.
Injustice and inequality have not left out any segment of society, whether based on race, color, gender, religion, or sexual orientation.
One of the common threads that runs through any of the above is the reality of being or becoming a disabled person.
The concept or thoughts about disability likely never crosses your mind unless you are a disabled person or have a family or friend that is.
However, the subject of persons with disabilities is a very important one and one that affects over 64 million people in America. They have rights and entitlements that until recent changes in the law were ignored or met with disdain and outright hostility.
Because of this, legislation was written and put into place to help ensure that persons with disabilities are treated equally, are given the same access to places offering goods and services to the public, have access to employment and business opportunities the same as a person who is not disabled, and a host of other “civil rights” that must be afforded.
This article is written to provide a history of the path of civil rights and how it has become the main vehicle in assuring persons with disabilities are not discriminated against nor excluded from the same quality of life offered to persons considered to be able-bodied.
A basic understanding of the origin and paths to “civil rights” is important in order to understand where the nation is now and where it likely be in the future regarding the treatment of the disabled.
The History of Civil Rights and Why They are Important
Civil rights have its genesis or being from the inception and declaration of America becoming a nation.
Within The Declaration of Independence the America's founders declared “we hold these truths be self-evident that all men are created equal. That they are endowed by their creator with certain inalienable rights and among these are life, liberty, and the pursuit of happiness."
Within Article I, Section 2 of the Constitution is where the first instance and need for civil rights arose. Within that section, Native American Indians and African slaves were specifically excluded. The latter could not under the initial Constitution be regarded as entitled to “certain inalienable rights” because they were not regarded as a complete “persons” They were regarded as only three-fifths of a person. Subhuman at best.
The Indians were set apart and regarded as having their nation within a nation and not part of America and therefore, in effect not subject to nor afforded the “inalienable rights.”
This clear inequality set in motion the beginnings of having to seek equality through a body of laws and legislation to make right the circumstances and bring forth justice and fair treatment for all “persons.” These laws became known as Amendments to the Constitution.
The Thirteenth Amendment brought about the end of legalized slavery: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." 13th Amendment January 1, 1865
The Fourteenth Amendment brought about equal protection under the law: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Although legislated into law, neither of these Amendments brought about the rights, equality, and justice that they intended. Indians and slaves were still treated in extreme ways that could not be considered “civil” at all. Thus the quest for “civil rights” continued and the full application of those rights is still being sought today.
Along the way, it also became clear that people were being denied “civil rights” based on physical attributes they could not control due to birth or happenstance during life. Nevertheless, they still should be entitled to the same rights as persons not disabled.
This brought about legislation to address the unfairness and inequality toward disabled persons.
Disable persons, like the Indians and Black slaves and their descendants, had to fight their way and demand and obtain fair treatment. The 1964 Civil Rights was one of the greatest tools created to set the stage for civil rights and equal treatment. This law established the ground rules for treating people based on race, color, religion, sex, gender, and ultimately sexual orientation. It did not however address, issues of a person with disabilities.
The march of civil rights continued, including for persons with disabilities, and in 1990 a sweeping set of laws was passed in the form of the Americans with Disabilities Act (ADA). This legislation placed the power to enforce and seek equal treatment on the part of persons with disabilities within the hands of disabled persons.
It requires that governments and private entities must provide equal access to disabled persons such that they have the same access to goods and services as a person that is not disabled.
Under these laws, ADA compliance was born and since its birth in 1990, it has grown to be the most powerful and useful tool to anyone with a disability to ensure that they are treated with equality and included in opportunities provided through employment, access to health, transportation, means of communication, and the dispensation of justice.
Unfortunately, these laws and the history of mankind shows that morality and doing the right thing cannot be legislated into reality. However, through such means habit can be regulated and enforced. Through the lenses of these regulatory eyes, ADA law has been used to obtain “civil rights” for persons with disabilities and continues.
The Birth of ADA Compliance
Title I
Title I of the Americans with Disabilities Act of 1990 prohibits private employers, State and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment.
The ADA covers employers with 15 or more employees, including state and local governments. It also applies to employment agencies and labor organizations.
The law prohibits an employer from discriminating against an employee based on their disability. It also prohibits an employee from being discriminated against because of perceived disability. This applies to circumstances where an employer thinks or regards an employee as a disabled person but they are not.
Title I also requires a covered employer to provide reasonable accommodations to a disabled person to enable them to perform the duties of the position they are hired or employed to perform.
Title II
Title II of the ADA prohibits discrimination against persons with disabilities regarding services and offerings made by public entities. This includes state and local governments as well as the federal government and all the departments of any such government entities.
Access to goods and services offered by government entities is mandated. Any barriers that constitute or prevent access to such goods or services must be removed where it is readily achievable. The readily achievable concept means easily accomplished and able to be carried out without much difficulty or expense.
Title III
Title III of the ADA covers private entities. Small, medium, or large companies that offer their goods and services to the buying public. These companies and businesses are referred to under the ADA as “public accommodations.”
A public accommodation is a private entity that owns, operates, leases, or leases to, a place of public accommodation. Places of public accommodation include a wide range of entities, such as restaurants, hotels, theaters, doctors' offices, pharmacies, retail stores, museums, libraries, parks, private schools, and daycare centers.
Private membership clubs and religious organizations are exempt from the ADA's title III requirements for public accommodations.
ADA law focuses on private and public entities that it considers to be “public accommodations,” (those that provide goods or services to the public) and requires that those businesses not to discriminate against customers based on disability.
The ADA establishes requirements for 12 categories of public accommodations, which include:
1) Places of lodging (e.g., inns, hotels, motels) (except for owner-occupied establishments renting fewer than six rooms);
2) Establishments serving food or drink (e.g., restaurants and bars);
3) Places of exhibition or entertainment (e.g., motion picture houses, theaters, concert halls, stadiums);
4) Places of public gathering (e.g., auditoriums, convention centers, lecture halls);
5) Sales or rental establishments (e.g., bakeries, grocery stores, hardware stores, shopping centers);
6) Service establishments (e.g., laundromats, dry-cleaners, banks, barbershops, beauty shops, travel services, shoe repair services, funeral parlors, gas stations, offices of accountants or lawyers, pharmacies, insurance offices, professional offices of health care providers, hospitals);
7) Public transportation terminals, depots, or stations (not including facilities relating to air transportation);
8) Places of public display or collection (e.g., museums, libraries, galleries);
9) Places of recreation (e.g., parks, zoos, amusement parks);
10) Places of education (e.g., nursery schools, elementary, secondary, undergraduate, or postgraduate private schools);
11) Social service center establishments (e.g., daycare centers, senior citizen centers, homeless shelters, food banks, adoption agencies); and
12) Places of exercise or recreation (e.g., gymnasiums, health spas, bowling alleys, golf courses).
Covered also are non-profit and charitable organizations that either have 15 or more employees or operate for the benefit of the general public.
Title IV
Compliance with the ADA under Title IV covers communication networks. It requires all telephone companies to provide telecommunication relay services to allow persons who cannot hear or have speech limitations to communicate using a special apparatus called a TTY or a similar non-voice device to assist the non-hearing or speech limited person to communication over telephones and similar devices.
The law under Title IV is enforced by the Federal Communication Commission.
Title V
Title V of the Americans with Disabilities Act is a miscellaneous civil rights provision for persons with disabilities. What the other four titles do not cover, this title intends to cover anything that might assist or benefit persons with disabilities.
Website Compliance with the ADA Is now Required
Within recent years, there have been litigation claims filed against government agencies and businesses that are claimed to not have accessible websites for persons with disabilities.
For more than two decades after the passage of the ADA, websites had not been considered as covered under the ADA. There is nothing in the ADA regulations that specifically refers to websites. Nevertheless, the broad and sweeping “intent” of the ADA has been interpreted by lawyers and more recently Judges to include websites.
Because of several recent court rulings, websites are now deemed to be covered under the ADA and websites now must be accessible to persons with disabilities similar to physical buildings.
Therefore, websites must now be accessible and able to accommodate people that are blind, deaf, and cannot use a mouse or keyboard among other requirements.
The U.S. Department of Justice, the government agency that enforces the ADA from a federal standpoint, has endorsed a set of rules that are recognized on a global basis for making websites compliant for disable persons. That standard is known as the Website Content Accessibility Guidelines (WCAG) which has determined levels of accessibility that should be met when it comes to websites.
Website compliance with ADA has three levels under the WCAG guidelines. The levels are set alphabetically as Level A, Level AA, and Level AAA.
Each of the levels set forth what is acceptable for a website to be considered “accessible.” Level A provides a degree of accessibility that makes a website accessible to some extent but is insufficient to be considered fully compliant for ADA purposes.
Level AA sets forth accessible criteria considered to meet ADA compliance that meets the broad spectrum of access barriers that might be encountered when a person with a disability attempts to access a website page.
Level AA is the required level that a website must meet to be considered fully accessible as well as in compliance with the ADA. This standard makes it clear that while a website might be accessible to persons with disabilities having met at least a Level A accessibility standard, that standard would not preclude the filing of a complaint and a finding of noncompliance from a complaining person with a disability or a government enforcement agency.
Therefore, Level AA should be the goal for website ADA compliance.
Level AAA is currently the highest level of website compliance for ADA purposes. While Level AAA is preferred, it is not necessary for a website to meet the requirements of Level AAA for legal compliance purposes.
Level A, AA, and AAA are all measured by the meeting or exceeding four measurement standards of:
- Perceivable
- Operable
- Understandable
- Robust
Within each of these categories there exists Level A, AA, and AAA requirements for accessibility and compliance purposes. Again, Level AA is the minimum standard that should be sought.
In addition to the WCAG guidelines, regulation under Section 508 of the Rehabilitation Act also requires the elimination of access barriers in websites of any federal agency and must be removed. This law also applies to any private entity that is receiving federal funds or is under any contract with the federal government.
This is an additional ADA compliance required aside from that required the Americans with Disabilities Act.
It should be noted that regardless whether a website complies with Level A, AA, or AAA that does not automatically prevent a website owner from having a complaint lodged or lawsuit filed. In the hostile environment of lawsuit litigation for ADA noncompliance, a may be filed by anyway.
However, in the rare case when a lawsuit is filed where website compliance is at least at Level AA or Level AAA such a lawsuit can be easily defended against and in likelihood would be dismissed quickly.
What Does ADA Compliance Mean?
The intent behind the ADA scheme is to provide a means to ensure the dignity, respect, decency, and fairness that should be afforded people as a matter of moral conscience. This is the baseline intent behind the concept of civil rights.
It sets the standards for how people should be treated regardless of a physical or mental condition that keeps them from enjoying and having access to all goods and services offered to persons who are not physically or mentally challenged.
The ADA establishes a minimum standard that any building, entity, business, equipment use, employer, or other offering made to people must meet to avoid the possibility of government enforcement or private enforcement by a person that is adversely affected because of noncompliance.
Minimum compliance means meeting the physical and other requirements that any of the five titles under the ADA require to be met to avoid or successfully defend against a complaint made by an enforcement agency or a private individual.
It means that any access barrier that ADA law requires to be removed has been removed or otherwise is exempted from having to be removed under the various exemptions and exceptions under the ADA law scheme of rules and regulations.
There is a difference between the concept of accessibility and compliance. Just because a physical building or website is accessible does not automatically mean it is in compliance.
For example, a restaurant may be accessible to a person in a wheelchair because the person can actually maneuver around and get into the restaurant and may even be able to roll the wheelchair under a table to use the table for service and eating.
However, if there was no van accessible parking stall within the parking lot to accommodate that person or any other disabled person using a vehicle to park and get into the restaurant or while inside eating and then attempting to use the bathroom and finding no grab bars were inside to assist in using the bathroom, the restaurant would violate the law because there still exists access barriers to persons with disabilities within or on the premise.
Similarly, as outlined above, a website may be accessible but still found to be non-compliant.
Is ADA Compliance mandatory?
Compliance under the ADA is mandatory unless there are circumstances that exist that provide an exemption from its application.
A common misconception is that older buildings are grandfathered into compliance and not required to do anything toward removing access barriers and making businesses or entities ADA accessible. This is a myth. There is no such thing as a building or entity being “grandfathered into compliance.”
I have personally litigated hundreds of ADA lawsuits and the grandfathered compliance defense was presented on several occasions. It never worked. The courts did not recognize it as a legitimate argument then and they don't recognize it now.
Who enforces ADA Compliance?
Like the 1964 Civil Rights Act, the ADA is set up to allow enforcement by government agencies specifically designed to enforce it when complaints are made to that agency on behalf of a person with a disability or persons who are denied access because of their association or relationship with a disabled person.
The ADA can also be enforced by a disabled person or a class of disabled persons on their own and through the court system by filing a lawsuit and pursuing the claim through court by themselves or with the help of an attorney.
Government agencies like the U.S. Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC) are the government enforcement agencies. They are secondary sources of enforcement to the individual enforcement efforts available.
There are no ADA police agencies that seek out and determine which businesses or websites are in non-compliance. The main force of enforcement is through self-regulation through persons and businesses of goodwill.
Who is exempt from ADA compliance?
With few exceptions, any business that serves the public is required to comply with the ADA. Size does not matter. If the business is open to the public serving goods and providing services, that business must comply with ADA law.
Any building that was in existence at the time the ADA was enacted must still remove access barriers to persons with disabilities where such removal is readily achievable. [Can be done without excessive cost and not injurious to the continuous operation of the business].
Notable Exemptions from the ADA
Religious organizations and private clubs are not required to comply with ADA law. This exclusion includes activities that are controlled by these entities as well such as the operation of a daycare center or a school operated on the premise.
It should be pointed out that this exemption applies under federal law. Numerous states also have laws that require access barrier removal and compliance for persons with disabilities. If any state law is more protective than the ADA and not in direct conflict with the federal regulations then that state law will be enforced. State laws for persons with disabilities are often more strict than federal law.
Therefore, state laws should always be reviewed, besides federal laws to determine whether a premise or a website is in ADA compliance or not.
Historic buildings
Often there is confusion whether a building designated as historical is exempted from compliance with the ADA.
Historical properties are not exempt from the ADA. Such properties are required to remove access barriers to persons with disabilities like any other premise wherever reasonable and readily achievable. However, if the removal of access barriers diminish or defeat the historical value of the property, there may an exemption applied to preserve the historical significance of the property.
Even then, any access barriers that can be removed must be removed. A consultative process is provided within the ADA regulations to allow for an assessment of whether a historic building is exempt from compliance. Usually, the consultation must be between the owners of the historic property, members of disability organizations, and local governmental historical preservation officers as defined by local authorities.
Why Compliance with the ADA Is Important?
Unfortunately, there is still a long way to go to get compliance with the ADA to a point where persons with disabilities are somewhat on par with equal access the same as persons who don’t have physical or mental limitations.
However, aside from the ADA being the law of the land and must be followed, the first reason compliance with the ADA should be important is it’s just the right thing to do. Treating people fairly and equitably is a fundamental principle that should be followed with or without a law. Period.
Also, society as a whole misses out on so much when segments of populations are excluded on any basis that has nothing to do with their worth or value. Embracing the worth and value-added to the productivity, innovation, and increase in the overall standard of living for everyone should always the the mindset.
Persons with disabilities contribute greatly to our society. They have families, they are gifted and qualified employees, and they produce goods and services as part of the diverse supplier chain that adds to our economic growth.
One of the most overlooked or ignored facts about persons with disabilities is their enormous buying power. They are 64 million strong with a dollar buying power of 490 billion annually of discretionary income. Each day people are added to that number through an unfortunate accident, downturns in health, and any number of other reasons people become disabled.
Governmental bodies and especially businesses selling goods and services are remiss if they do not take into account this huge market and find ways and means to tap into that market for marketing, branding, and profitable sales. ADA compliance is a giant step in the right direction toward that goal.
The Cost and Consequence of Non-compliance with the ADA
Lack of complying with ADA Law is costly. Since the passage of the ADA in 1990 thousands of lawsuits have been filed by governmental agencies enforcing the laws and assessing penalties and fines and millions of dollars have been paid out by the government and private enterprises to disabled persons and their lawyers who filed lawsuits to enforce the ADA regulations to remove access barriers.
The average cost of a lawsuit for even the smallest business is usually $25,000 or more. This can be avoided through the removal of access barriers and a welcoming of the disabled community as part of the prospects and customers of any business the same as is done for persons without a disability.
Another cost burden that has generated millions of dollars in attorney’s fees, costs, fines, and penalties is within the confines of employment of persons with a disability. The law requires any company with 15 or more employees to make reasonable accommodations to allow a person with a disability to perform the job they have to perform.
If an accommodation can be done by making adjustments that aren’t too expensive and don't adversely affect the safety of the business or other employees, the law requires that accommodation be made.
Unfortunately, many employers don't comply with this requirement and the result has been individual and class action lawsuits filed by disabled employees, often resulting in huge damage awards.
These huge damage awards have repercussions and consequences beyond just the monetary amounts. They also affect the brand name and reputation of the companies which can ultimately affect a company’s standing within the community and lessen the motivation to patronize that business in the future.
A reputation for discrimination and denial of access also can have a rippling effect. It can discourage or motivate friends and families of disabled persons from expending their dollars at a place that is identified as denying access to individuals that are disabled.
There are substantial more reasons a business or government agency should be motivated to become ADA compliant than to resist it. Bottom-line, ADA compliance is good business practice.
Assistance With ADA Compliance and Accessibility
The federal government recognizes that making ADA compliance a legal duty can impose an economic hardship on a small business's cash flow and even its profitability.
To account for such a reality IRS rules have been put into place that reimburses dollar for dollar monies expended to bring a physical facility or a website into ADA access compliance.
Through IRS Code Section 44, Disabled Access Credit, your small business can qualify for a tax credit for increasing website accessibility and making other accommodations to make your business accessible to persons with disabilities.
This particular IRS code provides for a tax credit of up to $5000. This means for every dollar expended to bring your business into compliance you are credited with a dollar off your annual tax bill.
Under IRS Code Section 190 a small business can take up to a $15,000 tax deduction for ADA access compliance. Combined, these two IRS code sections provide for $20,000 of tax relief to a small business from the burden and costs of bringing its facility and website into website compliance with the ADA.
These tax incentives help take the burden off of business for ADA access compliance. It makes good dollars and business sense.
In most small business situations, compliance with the ADA can be accomplished for less than $10,000. Using the tax credit and tax deduction benefits can often be done on a cost-free basis taking into account the reimbursement factors.
In addition to the monetary assistance, help is provided through the guidance of governmental bodies that have been put into place specifically to assist in the removal of access barriers and making accessibility as easy as possible.
There are U.S. Department of Justice (DOJ) guidelines that provide information and technical assistance and the ADA Access Guidelines, commonly referred to as ADAAG, which provide for the standards to be met when removing access barriers for persons with disabilities
Battling Stereotypes and Prejudices in the ADA Arena
Like other cultures and segments of people in our society, persons with disabilities have had to suffer insults, disrespect, and challenges when it comes to gaining access to goods and services. The language used by many reflects the disrespect and ignorance of many who view someone with a disability as “different” and not worthy of being treated the same as what is considered “normal” people if there is such a thing.
One of the offensive terms that are commonly used to describe disabled people is the word “handicapped.” In 1915, the term “handicapped” was applied to disabled children. By 1958, the word was used to describe all disabled persons—adults and children with physical or mental disabilities.
In general, it is a negative term that should not be used when describing a person with a disability. Indeed, in many circles, it is regarded as having the same offensive tone and effect as calling a Black person a “nigger.”
Other terms like “crippled”, “invalid” “deaf and dumb” or deaf-mute are used. These labels perpetuate stereotypes and prejudices that do nothing to help bridge the gap between persons with disabilities and those that aren’t.
Corporate Social Responsibility and ADA Compliance
Corporations are one of the greatest power sources in America that can orchestrate change in a significant way.
While it has long since been a legal requirement for companies and businesses with 15 or more employees to provide fair and equal treatment of employment opportunities to persons with disabilities, there is still much to do to eliminate discrimination and upward mobility for disabled persons within the workplace.
Corporations readily recognize and promote the benefits of a diverse corporate culture, which should include persons with disabilities. However, history shows that such has only been talking points and in many instances the action behind the talk is non-existent.
Most corporations have as part of their overall business strategy a corporate social responsibility policy that, on paper, lays out its commitment to be inclusive with employment practices, sales of goods and services and being a responsible citizen within the communities they exist on matters of community involvement, environmental impact, and other social issues.
These policies will make significant change for the better if implemented as part of corporate culture.
A corporation’s power to effect change is extremely important for accomplishing ADA compliance. Corporations that adopt and implement a policy of inclusion, diversity, and equality with an emphasis on persons with disabilities will help to create the reality that persons with disabilities are part of the fabric of America and without them the cloth holding the country together will never be as strong as it could be.
The Future Outlook for Americans with Disabilities
The future of ADA compliance should reflect a mindset of acceptance, inclusion, and equality for persons with disabilities.
One of the reasons such a mindset should be created and sustained is because at any given moment anyone can become disabled. It is truly a phenomenon that does not discriminate. A non-disabled person can become a disabled person in a moment, the blink of an eye.
According to the Social Security Administration, the average 20-year-old has more than a 1-in-4 chance of becoming disabled before reaching retirement age.
During a person’s working years it is more likely they will face a disability than die. In fact, at no age is the risk of death greater than the risk of becoming disabled. For a male, age 35, the odds are nearly 2 to 1; for a female, age 35, almost 3 to 1.
Given these facts there should be a mindset of persons without disabilities that persons with disabilities should always be treated with the utmost respect and treated with dignity and every effort should be made to make sure that accessibility and accommodation become commonplace to persons with disabilities period. It’s just the right thing to do.
What’s Your Mindset to Make a Difference?
America is in the spotlight for its divisiveness. There is no vaccine for discrimination, racism, sexism, or exclusion based on a person’s disability.
None of the ills of “isms” will ever be eradicated through legislation, although rules and regulations are a necessary part of the plan to address them.
What is required is a “change of heart.”