Sharing the Dream: Is the ADA Accommodating All?
Findings and Recommendations
CHAPTER 1: THE ROAD TO THE ADA
Historically our nation’s disability policies were premised on a medical/charity model where disability was to be addressed by doctors and other professionals who were to cure or fix the individual with a disability; if he or she could not be “cured,” the individual may be entitled to some type of charitable benefit.
The Supreme Court has refused to find that individuals with disabilities are a suspect or even a quasi-suspect class, which would have required that laws affecting individuals with disabilities serve a compelling state interest or at least be substantially related to an important governmental interest.
In moving away from a medical/charity model and attempting to provide individuals with disabilities more meaningful access to all facets of community life, numerous laws were enacted to address specific issues confronting individuals with disabilities ranging from access to federal facilities, education, air travel, voting, housing, and federal employment.
With the passage of the Americans with Disabilities Act, our nation moved from the medical/charity model to a civil rights model that attempts to provide a level playing field for individuals with disabilities by affirmatively securing the right of access to, and independence in, all aspects of society.
The ADA, which was signed into law on July 26, 1990, is a comprehensive civil rights law seeking to ban discrimination against individuals with disabilities by ensuring equality of opportunity, full participation in government services and public accommodations, independent living, and economic self-sufficiency.
CHAPTER 2: THE EFFECTS OF THE ADA
Individuals with disabilities believe the ADA has made a great difference in their lives. The ADA has increased the level of participation in mainstream American society, including better access to buildings, greater access to transportation, and fuller inclusion in the community.
Since the passage of the ADA, the public is more sensitive to and aware of people with disabilities.
Individuals with disabilities continue to face discrimination and difficulty in overcoming barriers that prevent them from fully participating in mainstream American society, particularly in the areas of employment, access to medical benefits, and access to public transportation.
2.1 The Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DOJ) should continue their aggressive efforts in implementing and enforcing the mandates of the ADA.
2.2 The EEOC, the DOJ, and the Department of Transportation must become more proactive in their efforts in enforcing the ADA beyond the traditional areas of coverage and in educating the public on the requirements of and rights provided by the ADA.
General access to public accommodations and public services has improved for people with disabilities since the ADA.
There continues to be areas that need greater improvement such as access to medical facilities and public transportation.
2.3 The DOJ should play a more proactive role in enforcing the mandates of Titles II and III of the ADA, including:
implementing a more effective complaint investigation process;
adopting a procedure to actively seek out test cases in nontraditional areas of enforcement;
undertaking compliance reviews to monitor compliance; and
using testers as a means of monitoring compliance with the ADA.
2.4 The DOJ should be allocated additional funding to provide training, education, and technical assistance for mid-size to small businesses so that they have adequate access to information on the mandates of the ADA.
While the ADA has improved employment opportunities for individuals with disabilities, employment rates of individuals with disabilities continue to indicate that people with disabilities are less likely to be employed than people without disabilities. The available employment rate data make no distinction between disabilities. Therefore, it is difficult for the Commission to draw any substantive conclusions regarding the ADA’s impact on the overall employment rates and employment opportunities for individuals with disabilities.
2.5 The National Council on Disability and the National Institute on Disability and Rehabilitation Research should undertake comprehensive studies focusing on employment rates, employment trends, and types of employment for individuals with disabilities. These studies should also include different types and severities of disabilities to ensure that quantitative data exist to make real comparisons of employment rates and employment opportunities for individuals with disabilities.
While data tend to show general improvement in life for individuals with disabilities since the passage of the ADA, the data are based on studies and surveys with limited statistical and anecdotal information. There is no consistent hard empirical data to demonstrate the extent of the effectiveness of the ADA.
2.6 There should be continued efforts to study the overall effects of the ADA. The National Institute on Disability and Rehabilitation Research should undertake a comprehensive nationwide study of the effects of the ADA on individuals with disabilities and on businesses and employers who must comply with the ADA.
The ADA, like all civil rights laws aimed at remedying discrimination based upon unjustified stereotypical beliefs, has costs associated with protecting the civil rights of those it is intended to protect.
There are no significant costs in complying with the reasonable accommodation provisions of the ADA.
While there was testimony about concerns of costly litigation created by the ADA, no empirical evidence was presented either substantiating these concerns or showing a significant number of cases filed under the ADA were determined to be frivolous.
To the extent businesses have concerns over frivolous litigation being filed under the ADA, there are already mechanisms in place, such as through Rule 11 of the Federal Rules of Civil Procedure, which are intended to deter and remedy the filing of frivolous lawsuits or those without substantial justification.
2.7 Congress should provide businesses and employers that incur costs in complying with the accessibility and reasonable accommodation provisions of the ADA tax credits and other tax incentives that correlate directly with the costs incurred by them up to the actual costs incurred.
2.8 The EEOC, the DOJ, and other federal agencies charged with implementing the ADA should increase educational efforts aimed at advocacy groups and potential ADA claimants in an attempt to ensure that these groups and individuals have a clear understanding of the level and type of evidence needed to successfully maintain an ADA claim.
The Social Security Administration (SSA) does not take into consideration the ADA’s requirement of reasonable accommodation in determining continuing eligibility for disability benefits, which can discourage individuals with disabilities from re-entering the work force.
2.9 In an effort to further provide incentives for returning to employment, the amount of cash disability benefits should be tailored to an applicant’s ability to work with a reasonable accommodation or to be rehabilitated and returned to work. After a meaningful phase-in period, the benefits could be reduced or eliminated depending upon the individual’s ability to work, with the proper work supports or accommodations.
Generally, federal disability beneficiaries are not made aware of the Social Security work incentives, which are intended to encourage them to return to work.
2.10 The SSA should educate its staff on the available work incentives and provide training to staff on how to explain these work incentives so that applicants understand them.
2.11 At the time of application, the SSA should ensure that all beneficiaries are informed about the work incentive initiatives.
The employment rate of individuals with disabilities correlates with the growth rate of Social Security Income (SSI) and Social Security Disability Insurance (SSDI). When access to benefits is expanded the employment rate of individuals with disabilities drops, and when access to benefits is tightened the employment rate increases.
On average, once beneficiaries begin to receive federal disability benefits, they remain on the disability benefits program for most of their lives.
Once individuals with disabilities receive federal disability benefits, the SSA work incentive initiatives have only a modest effect in returning beneficiaries to the work force.
Once a beneficiary with a disability starts to work, SSDI cash benefits are generally terminated after one year. These benefits are extended if a beneficiary’s average monthly earnings do not exceed the substantial gainful activity (SGA) level of $700.
Once a beneficiary with a disability starts to work, SSI cash benefits are terminated when earnings plus other income exceed the income and resource requirements.
2.12 The SSA should do comprehensive research on the factors that cause individuals with disabilities to remain on the Social Security rolls. This research should distinguish between individuals who cannot work and those who may be able to work with reasonable accommodation or appropriate rehabilitation.
2.13 The SSA work incentive initiatives should extend the length of time that cash benefits are offered while the person is re-entering the work force. These benefits should be offered until the beneficiary can become reasonably self-sufficient, which is a concept the SSA should define with input from all affected stakeholders.
2.14 The SGA level should be raised. The amount should be higher than the annual salary of someone earning minimum wages. In effect, once a person’s earnings exceed the SGA level, he or she should be able to live off earnings alone.
2.15 The SSI income and resource requirements should be restructured so that once a person’s earnings exceed the SGA level, he or she is able to be financially self-sufficient, which is a concept the SSA should define with input from all affected stakeholders.
Adults with disabilities often have a disincentive to work because of the high cost of personal attendant services or technologies required for employment.
Congress recently approved a proposal by President Clinton to provide a $1,000 tax credit to cover certain work-related expenses, such as special transportation and technology.
2.16 Congress should provide immediate incentives to people with disabilities that offset work expenses related to disability as these expenses are incurred rather than requiring individuals with disabilities to wait until the end of the year to receive a tax benefit.
2.17 Congress should increase tax benefits through enhanced tax credits, which adequately cover work expenses related to a person’s disability.
Pursuant to Internal Revenue Code, Section 190, all businesses are allowed to deduct up to $15,000 a year for expenses incurred to remove physical, structural, and transportation barriers for persons with disabilities at the workplace.
2.18 Congress should provide more incentive for businesses to meet the ADA’s access requirements by increasing the amount of tax credit available.
CHAPTER 3: JUDICIAL TRENDS IN ADA ENFORCEMENT
The Supreme Court decisions in Sutton, Murphy, and Albertsons, that the effects of any mitigating measures must be considered, obscured the congressional vision for the ADA.
The Supreme Court decisions in Sutton, Murphy, and Albertsons restricted the coverage of individuals intended to be protected by the ADA and will cause continued litigation over who is entitled to coverage by the ADA.
The Supreme Court in Sutton, Murphy, Albertsons, and Olmstead have invited continued litigation over the validity and deference due the regulatory and interpretive guidance issued by the federal agencies on what constitutes a disability.
3.1 To accomplish the expressed intent of Congress, the ADA should be amended to provide that the effects of mitigating measures should not be taken into account in determining whether an individual has an impairment under the ADA.
The Supreme Court decision in Cleveland, holding that a person is not automatically barred from suing under the ADA even though he or she has claimed an inability to work in an application for disability benefits, recognized the conflict in purposes between the ADA and the Social Security Act, and the fact that the Social Security Act does not require a determination of whether a person could work with a reasonable accommodation while the ADA mandates this assessment.
While recognizing the difference in purpose between the ADA and the Social Security Act, the Cleveland decision still allows employers to demand an explanation of why an individual made a claim for disability benefits.
The Cleveland decision invites continued litigation over this issue.
3.2 To avoid continued litigation, Congress should consider harmonizing the ADA and the SSA, or Congress should amend the ADA to provide that the application for, or receipt of, disability-based benefits should have no relevance to an individual’s pursuit of his or her rights under the ADA.
3.3 The SSA and other federal and state agencies providing disability-based benefits based upon a certification of disability should make it clear on all forms and applications for benefits that all such certifications are for the sole purpose of determining disability under that agency’s applicable laws, do not address the ADA’s reasonable accommodation requirement, and are in no way a representation of limitation for the purposes of the ADA.
The Supreme Court in Olmstead, recognized that “unjustified isolation” of individuals with disabilities in institutions is unlawful discrimination.
3.4 The appropriate federal agencies should adopt policies and programs aimed at helping states and local governments to fully implement the Supreme Court’s Olmstead ruling as addressed more specifically in Findings and Recommendations for chapter 5 of this report.
The Supreme Court in recent decisions has consistently ruled that as a general matter the 11th Amendment to the U.S. Constitution prohibits states from being sued in federal court by individuals for violations of federal statutes. Therefore, the provisions of these laws allowing individuals to pursue remedies in federal court were found unconstitutional.
The Supreme Court will now hear arguments to consider whether the ADA provisions that allow private individuals to sue states in federal court are constitutional.
3.5 The DOJ should develop a contingent plan for active monitoring and enforcement of the provisions prohibiting discrimination by state entities in anticipation of the Supreme Court’s decision. The plan should be ready for implementation in the event the Supreme Court, consistent with recent decisions, invalidates ADA provisions allowing individuals to file suit against states in federal court.
Chapter 4: Substance Abuse under the ADA
The social and economic costs of substance abuse in America are staggering. It is estimated that the cost of alcohol and drug abuse for 1995 was $276.4 billion, of which $166.5 billion was for alcohol abuse and $109.8 billion for drug abuse.
The ADA currently does not mandate that private industry offer programs, such as Employee Assistance Programs (EAPs), to assist workers with substance abuse problems.
EAPs seem to play a role in helping workers obtain the treatment they need, return to work, and receive the follow-up treatment necessary to remain safe, productive, substance-free employees for the firm or company.
4.1 Information should be made available to employers by the EEOC and the DOJ on the economic benefits derived from establishing EAPs or similar programs.
4.2 Congress should provide appropriate tax incentives for the establishment of EAPs and similar programs within private industry.
4.3 The EEOC should form a task force, which includes stakeholders, to develop a “Handbook of Best Practices” that would illustrate successful approaches that employers in various industries have taken to comply with ADA provisions pertaining to substance abuse.
The ADA, court decisions, and EEOC’s interpretive guidelines have made it clear that:
An employer may prohibit the illegal use of drugs and the use of alcohol at the workplace.
It is not a violation of the ADA for an employer to give tests for the illegal use of drugs.
An employer may discharge or deny employment to persons who currently engage in the illegal use of drugs.
Employers may require employees who use drugs or alcohol to meet the same standards of performance and conduct that are set for other employees—even when the unsatisfactory performance or behavior is related to drug use or alcoholism.
Employees may be required to follow the Drug-Free Workplace Act of 1988 and rules set by federal agencies pertaining to drug and alcohol use in the workplace.
Some drug and alcohol policies may have the effect of deterring individuals from seeking treatment because they drive the problem “underground” as the employee does everything within his or her power to hide a substance abuse problem from an employer.
4.4 The EEOC should encourage employers to develop EAPs that provide incentives to employees to seek treatment for substance abuse problems.
Employers and courts struggle with ADA’s definition of “current” drug user, which is an important issue because “current” users are expressly excluded from ADA protection.
The EEOC’s Interpretive Guidance and discussion in its Technical Assistance Manual require a case-by-case analysis of “current” use. While helpful, the material does not set forth any definitive standards for which an employer can make this interpretation.
4.5 The EEOC, after consulting with stakeholders, should offer specific and detailed guidance in defining what is a “current” drug user.
The EEOC makes it clear in its Technical Assistance Manual that an applicant or employee who tests positive for an illegal drug cannot immediately enter a drug rehabilitation program to avoid the possibility of discipline or termination, claiming that he or she is no longer using drugs illegally.
Despite the clear language of the Technical Assistance Manual, some employees who test positive for illegal drugs still attempt to avail themselves of ADA protection. This can create “something of a disincentive to employers to offer rehabilitation and other services to employees before addressing any substantive performance problems.”
There is no definitive answer as to whether the employer must provide a leave of absence so the applicant or employee can obtain medical treatment for alcohol abuse. At least one federal district court has ruled that the employer must provide such a leave of absence as an accommodation under the ADA.
4.6 The EEOC, with input from stakeholders, should provide additional guidance on whether employers need to provide leaves of absences for drug or alcohol abuse.
In EEOC v. Exxon Corporation the court allowed the company, in an across-the-board fashion, to refuse employment to individuals for their past use of drugs and/or alcohol without requiring that the individuals posed a “direct threat.”
The ruling in Exxon allows employers to circumvent the EEOC’s requirement of an individualized assessment in direct threat situations by arguing that individualized analysis is impossible or impractical.
Exxon now allows employers to designate jobs as “safety sensitive,” potentially eliminating entire classes of individuals with disabilities from consideration.
4.7 The EEOC should continue to aggressively support its current regulations, which require the determination that an individual poses a direct threat to a company or to himself be based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job.
4.8 The EEOC should provide additional guidance in categorizing a job as “safety sensitive.”
Chapter 5: Psychiatric Disabilities and the ADA
Title I: Employment of Individuals with Psychiatric Disabilities
The ADA initially focused on accommodating individuals with physical disabilities; individuals with psychiatric disabilities were largely ignored until discrimination charges based on mental impairments became the largest source of ADA charges filed with the EEOC.
At the time of the Commission’s ADA hearing, the Psychiatric Enforcement Guidance had been recently issued and employers expressed frustration because the EEOC did not conduct formal notice and comment rulemaking on this guidance. These concerns were unfounded; in fact, employers were subject to almost similar disability requirements under the 1973 Rehabilitation Act.
The EEOC uses notice and comment rulemaking to issue substantive regulations. Before issuing interpretive policy guidance, it considers stakeholder opinions obtained in various ways, including interactions, letters, and phone calls from advocates and advocacy groups.
Although the EEOC is not required to conduct notice and comment rulemaking for interpretive policy guidance, its lack of formal process gives the appearance that stakeholders’ opinions are not considered.
EEOC’s Psychiatric Enforcement Guidance provides useful guidance and examples of how the ADA should work for employers confronting employment-related issues involving individuals with psychiatric disabilities.
The Psychiatric Enforcement Guidance’s broad definition of mental impairment, referencing the DSM-IV listing of psychiatric disorders as relevant in identifying mental impairments, is consistent with the intention of Congress to cover a wide spectrum of disabilities.
5.1 The EEOC should be given additional funding to provide technical assistance for employers to comply with the Psychiatric Enforcement Guidance. Education and training for employers should be provided by the EEOC.
5.2 The EEOC needs to develop a process for stakeholders to raise concerns and to participate in policy development before the issuing of policy guidance. The EEOC should consider circulating proposed policies, including publication on the Internet, to invite comments from stakeholders.
Title II: Public Entities
Psychiatric Disabilities and the Most Integrated Settings Standard in General
Title II of the ADA was broadly written with the goal of making public entities, namely state and local agencies, reconsider their treatment of persons with mental disabilities.
This goal of the ADA with respect to individuals with mental disabilities is best summarized by DOJ regulations mandating that public entities administer services, programs, and activities that place individuals with mental disabilities in the most integrated settings appropriate for their needs.
DOJ’s regulations were validated by the Supreme Court in Olmstead, which established standards by which public entities must provide for the integration of individuals with mental disabilities into community-based settings.
State and local agencies after Olmstead expressed an intent to work toward the integration of individuals with mental disabilities into society. Generally, state and local governments have not committed the personnel resources or the funds necessary to integrate individuals with mental disabilities or multiple disabilities, which include mental disabilities, into society in a manner that is truly meaningful and productive.
While the move to an integrated setting is an important goal, there remain many instances of neglect and abuse in community-based group homes.
5.3 The DOJ, the SSA, and other federal agencies should promulgate regulations that complement each other and in turn force public entities to establish written Title II policies that have clear, objective, and fair standards by which individuals with mental disabilities may be integrated into community-based settings that are most appropriate for their needs.
5.4 Stakeholders should play a significant role in the development of any and all Title II policies.
5.5 The DOJ, the SSA, and other federal agencies’ regulations and policies should provide funding incentives for states that improve the integration of individuals with mental disabilities into community settings.
5.6 The DOJ should develop mechanisms for identifying cases for litigation that involve discrimination against individuals with mental disabilities and that are aimed at defining and refining the protections of the ADA in this area.
5.7 The DOJ should perform compliance monitoring to ensure the proper treatment of individuals with mental disabilities in community-based settings and institutions.
Psychiatric Disabilities and the Most Integrated Settings Standard in the Specific: Olmstead
Olmstead still allows the states to reject the placement of individuals with mental disabilities in community-based programs or services based on the evaluations of their own administrators or based on their views of what would fundamentally alter the program.
5.8 State and local agency policies should allow individuals with mental disabilities, or those acting as their representatives, to challenge the findings of state and local administrators with respect to the “most integrated setting” for a particular individual. These policies should allow meaningful consideration of the mental health care providers’ opinions as to whether these individuals are best served in a community setting.
Individuals with Mental Disabilities and Law Enforcement
Law enforcement departments across the nation have taken strides toward improving the services provided to individuals with disabilities who are both the victims and suspects of crime.
Some law enforcement departments have worked toward complying with the ADA with respect to individuals with mental disabilities by providing training classes and training videotapes.
Problems remain in the interactions between police and individuals with mental disabilities.
5.9 Congress should provide additional funding to the DOJ to allow it to increase its technical assistance tools, including offering nationwide training of officers in how to interact with individuals with mental disabilities. This training should include how to recognize symptoms and how to approach and interact with individuals with mental disabilities and should include videos and simulations developed in conjunction with disability advocacy groups.
5.10 Law enforcement departments and local precincts should reach out to local community and advocacy groups and conduct classes with group homes and shelters so that both the police and individuals with mental disabilities are sensitive to each others’ needs and responsibilities.
5.11 Law enforcement departments should have timely access to mental health experts who are capable of assisting them in ensuring that victims and suspects with mental disabilities are adequately assisted.
5.12 Law enforcement departments should videotape encounters between police and individuals with mental disabilities when these individuals’ rights are in jeopardy. For example, when individuals with mental disabilities are detained or questioned, the police must ensure that these individuals understand the implications of any consent.
Title III: Public Accommodations
The DOJ has made almost no use of its authority to issue subregulatory guidance under the ADA.
Insurance plans and/or employers generally provide limited long-term benefit coverage for individuals with mental disabilities while providing lifetime coverage for individuals with physical disabilities.
5.13 The EEOC and the DOJ should issue subregulatory guidance that provides that differential treatment with regard to insurance benefits for individuals with mental disabilities is discriminatory and prohibited by the ADA. This should apply to life insurance, accident insurance, disability insurance, health insurance, and other types of insurance that are subject to coverage under the ADA.
Professional licensing boards continue to ask about the mental health background of persons seeking admission on the basis that they have the legitimate purpose of protecting the public and the professions.
5.14 The DOJ should issue subregulatory guidance providing a standard for licensing boards’ inquiries into mental health backgrounds of applicants. The guidance should make clear that the focus of the inquiry is on problematic behavior in areas of an applicant’s life, which are inconsistent with the duties of the licensee.