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Lapses in Disability Legislation

By Jack Costa

Compliance ≠ Disability Justice

A byproduct of the Americans With Disabilities Act outlining a concrete set of standards by which businesses, government bodies, and other entities must treat the disability community is the emergence of a clear distinction between true social inclusion/justice for those with disabilities and mere compliance with ADA rules. Employers, for instance, are incentivized to align their practices with ADA restrictions, and proof of basic compliance serves as sufficient to avoid any further regulation from the government to ensure proper enforcement of disability rights. Therefore, employers often become more concerned with meeting compliance criteria to avoid penalty instead of actually providing true inclusion and accommodation to those in the disability community. Adequate disability justice would ideally involve a social and structural focus on inclusion for disabled populations, but the current landscape of legislation does not reward the adoption of a completely inclusive perspective, instead continuing to grant the majority of discretion regarding accommodation to employers/businesses under the condition that compliance is met. Oftentimes, this results in the ADA being framed as a regulatory or adversarial force against thriving businesses. Reinforcing this was a recent measure taken by the Justice Department of the United States to withdraw eleven pieces of guiding ADA documentation for businesses (which included guidance/requirements on issues like accessible features in retail stores and gathering input from disabled customers) under the assumption that compliance in these categories hurt businesses/employers financially.

Lack of Legal Incentive

Furthermore, lack of strict governmental oversight and enforcement of ADA policies frequently enables workplace/everyday discrimination against the disability community and withholding of accommodations. While a member of the disability community can file a lawsuit in light of being affected by ADA violation, Title III of the ADA (which addresses public accommodations) prevents monetary relief from being provided for plaintiffs in private lawsuits brought up in federal court. This disincentivizes those being discriminated against to fight for their legally-guaranteed rights (as the process of a lawsuit is very arduous and financially burdensome) while also discouraging businesses to financially invest in the ADA’s policies (since the risk of having to provide financial compensation in cases of violation is low). For this reason, many plaintiffs are bringing up lawsuits in state court, attaching ADA claims with accompanying state laws that permit them to receive a financial remedy in court. (If a plaintiff has to avoid bringing a violation of a federal statute to federal court due to its insufficient scope in providing its intended relief and inclusion, this suggests a larger problem with the law.)

Psychological Effect

The cumulative effect of continued discrimination and the continued need to fight for accommodation in a post-ADA world can result in a burden being placed on the disability community (both psychological and financial, in cases where lawsuits may be required). While disability legislation like the ADA aims to create a more inclusive society and prevent barriers for the disabled, those most affected are still required to assume the role of an advocate to ensure equal, legally-protected treatment. As such, managing the weight of this, while also navigating everyday life, can deeply affect the mental health of the disability community. True disability justice involves a society where legislation mandates accommodation for those in need, no longer placing the obligation of advocacy and fighting for accommodation on the disability community.

Areas of Improvement

Specifically, as it pertains to accommodations, the ADA is most lacking in its poor enforcement and the discretion it allows employers/businesses to maintain with discriminatory practices. Some potential legal reforms to address this include:
  • Establishment of an enforcement entity for the ADA (instead of having ADA compliance audits be voluntary or driven by an explicit complaint of discrimination, a government entity could audit businesses to assess their inclusionary practices
    • Also, an emphasis in these audits of the goal of true disability justice via accommodations could mitigate some perspectives held by businesses that value mere compliance over true inclusion)
  • Reform of Title III of the ADA to allow financial compensation for those who seek relief in federal court for ADA violations

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