Oregon State Bar Bulletin — JUNE 2010

Butch Pribbanow knows what it’s like to be hampered by transit that is not accessible to those with disabilities. A spinal injury from a dune buggy accident put him in a wheelchair 35 years ago.

The Willamette University law school grad now oversees accessibility issues for TriMet as eligibility coordinator for the transit agency. Pribbanow joined TriMet’s legal department in 1991 — a year after the Americans with Disabilities Act was enacted, and he has seen many changes come about because of it.

“It’s been night and day. I remember going to college during the ’80s and even up to ’91 and ’92 when I came to TriMet, there were only certain lines that were accessible and certain buses that were accessible,” Pribbanow says.

Back then, TriMet would alternate buses on a line so that every other one or so was wheelchair accessible. A blue logo let disabled riders know which buses those were.

“When I came on, TriMet was slowly expanding its accommodations for disabilities, and in ’96 it became one of the first transit agencies in the nation to become 100 percent accessible,” Pribbanow says.

Among the accommodations TriMet has made because of the ADA, passengers in wheelchairs now are allowed to board the lift platform either forward or backward. They no longer have to transfer from their wheelchair to a seat. And TriMet was one of the first transit agencies in the nation to include power ramps that allow wheelchairs to cross the space from a light-rail platform to the railcar.

About six years ago, Pribbanow left TriMet’s legal department and joined its Lift Program, which provides door-to-door transportation for people with disabilities. He also leads the agency’s disability sensitivity training for transit operators.

“Some of the old-timers thought it took too much time to allow people to board by lift and they would certainly try to frustrate the intentions of the (ADA) by saying, ‘Sorry, my lift isn’t operating and you’ll have to take the next bus,’” Pribbanow says.

TriMet now requires all operators to take part in the sensitivity training and the agency’s workforce is better educated in how to accommodate disabled passengers, he notes.

“There are still a few bad apples who make things difficult for people with disabilities, but Portland has a pretty tough disability community and they represent their constituencies well,” Pribbanow says. “I’m glad to say TriMet has tried to address those problems, and I’m proud of TriMet for taking a leadership role in making the system accessible.”

Pribbanow credits the ADA with making it possible for him and others with disabilities to join the workforce without fear of the discriminatory practices that held them back in the past. Once Congress passed the law allowing disabled people to go to work, lawmakers recognized those people needed a way to get to their jobs, and transit accessibility became the second prong of the ADA.

Changes to transit accessibility that came about through the ADA have impacted Pribbanow personally as well as professionally.

“I can now travel anyplace that has a public transit system and I can, as a general rule, find a vehicle that is accessible for me and know that I can get from point A to point B,” he says, adding that curb cuts, electronic doors and other public accommodations for those in wheelchairs also have made a major difference in his daily life.

“I’ve broken toes trying to open doors that slammed shut on me because there was no automatic door opener, so adding those types of things has greatly helped me,” he says.

Pribbanow is among the millions of Americans with disabilities who have benefited from the ADA’s passage 20 years ago — and who help define how the law could improve people’s lives even more. The ADA’s evolution over the last two decades spans from its basic goal of protecting the disabled from discrimination to its recent inclusion of myriad mental and physical challenges.

Landmark Legislation Becomes Law in 1990
Signed into law by the first President Bush, the ADA’s original intent was to level the playing field in the job market for those with disabilities. However, legal wrangling over the definition of “disabled” muddied the issue to the extent that many seeking workplace accommodations because of mental or physical challenges became embroiled in proving their disability.

“It’s taken a long time for the law to develop,” says Bob Joondeph, executive director of Disability Rights Oregon (DRO). “So many people who had very high hopes when the law was signed have been disappointed in how long it’s taken to affect society in the way it was anticipated to do.

“Part of that is just changing paradigms, and part of it is that funding is required to implement various aspects of the law. In fact, the law is designed to be implemented over time,” he adds.

For example, when Congress passed the ADA, cash-strapped Amtrak was given 20 years to come into compliance with the law. The rail company recently requested an additional five years because of the expense involved.

While it’s been slow going on some fronts, the ADA has succeeded in bringing about many significant changes over the last two decades. Among them, people with physical and mental disabilities now have more options about where — and how independently — they want to live.

Just 50 years ago, parents of children with developmental disabilities such as Down’s syndrome or autism were expected to put their children in state institutions. Today, those with developmental disabilities not only have the support they need to live at home, but many are able to work, use public transportation and take part in other social opportunities, Joondeph says.

As an aging society, a greater segment of the population needs accommodations in order to remain active and independent. ADA amenities such as curb cuts and designated parking spaces make a big difference to those who use walkers, canes or other methods of mobility assistance.

“These changes are a big deal not only for disabled people, but also for their families,” Joondeph points out. “The disabled person can be more independent and have greater access to stores, movie theaters, public transportation and recreational opportunities, which makes things easier for their families as well.”

Heidi von Ravensberg, a graduate of the University of Oregon’s law school, is able to give her students both a firsthand and historical perspective on the ADA. An adjunct instructor who teaches the U.O.’s Disability Law Seminar, von Ravensberg has a degenerative eye disease that has allowed her to see only fuzzy light and shadows for the past decade.

“First and foremost, the ADA has afforded me access to programs and services, and I’ve noticed huge changes in the areas of education, employment and private and government services. I can go into a restaurant and they will actually have a Braille menu,” she says.

In her class, von Ravensberg introduces her students to the ways in which disability rights have evolved since World War II and the major social shifts in the definition of “disability” that came about with the disability rights movement.

“With that we began to understand that ‘disability’ is a regular human condition that will always be with us, and we need to give people the right to be included in society because it will always exist. That is reflected in the ADA,” she says.

Inclusion was at the core of professional golfer Casey Martin’s 2001 legal battle to use a golf cart during PGA Tour competitions. Martha Walters, now an Oregon Supreme Court Justice, represented Martin in the victorious case that went all the way to the Supreme Court of the United States.

“I think the most important thing the ADA has to offer is the way it has led us to look at people as individuals,” Walters says. “All of us want to be judged as individuals and not as members of a group, and I think that’s why people were understanding of Casey’s situation. We had an individual who was a fabulous golfer and he was not allowed to use his talent because he was categorized…and because he needed something different than other people needed.”

The principles from Martin’s case have now been applied in several others involving athletes with special needs, including Rachael Scdoris, a professional sled dog racer from Bend who was the first legally blind woman to complete the Iditarod.

“We need to look at the individual and see if there is a way the individual can be allowed to participate in these important aspects of life in a way that doesn’t make it unfair for other individuals,” Walters says.

As the ADA has evolved over the last 20 years, she adds, its application has become much broader than most people ever expected.

Disability Law Meets Employment Law
Certainly most employers didn’t anticipate it. After several years of winning the majority of disability cases because of the narrow definition of what constituted a disability, employers faced a sea change with the 2008 passage of the ADA Amendments Act (ADAAA).

“Now we’re at the other end of the spectrum, because overnight, the ADA has become a very plaintiff-friendly statute,” says Rich Meneghello, managing partner with Fisher & Phillips’ Portland office and a member of the Oregon State Bar’s Labor & Employment Law section.

Oregon in January 2009 implemented its own set of expanded disability laws intended to align with the federal amendments. Both the federal and state laws are designed to provide broader coverage for people with disabilities by expanding the definition of disability.

The difference between the federal and state laws is that the federal act applies to employers with 15 or more employees, and the Oregon statute includes any business with six or more workers.

Along with broadening the disability definition, the ADAAA requires employers to engage in an “interactive process” with disabled employees to determine how best to accommodate their mental or physical impairment. The process generally begins with a conversation about how best to accommodate the disability in a way that works for both parties.

Meneghello said the term “reasonable accommodation” often brings to mind the installation of a wheelchair ramp or widening doors and remodeling bathrooms to provide improved access for a wheelchair-bound employee. However, it often is much less involved than that.

“By and large, the majority of accommodation doesn’t cost a thing or costs very little because the accommodations that work out best involve simple modifications to policies, such as altering workplace practices to allow somebody a little more flexibility,” he said.

For example, if someone’s disability is depression and their medication makes it difficult to wake up in the morning, the accommodation may be letting them come in and leave a little later if their job allows for a flexible work schedule. Or, if someone has carpal tunnel syndrome, the accommodation may be to let them rest their arms periodically throughout the day, Meneghello said.

Amendments Act Reclaims ADA’s Intent
Lana Traynor, a Portland sole practitioner who chairs the OSB’s Disability Law Section, also has personal experience she brings to her law practice. Each of her three teenage sons has experienced learning challenges, and Traynor has multiple sclerosis.

Traynor commonly sees the ADA at work in her education law practice, 90 percent of which involves disability law.

“One of the coolest things is the use of ‘people first’ language.1 To me it showed a global acceptance of disability and the recognition that we are all individuals,” she says.

Congressional passage of the ADAAA also was a watershed moment in disability rights, because it very clearly and deliberately reclaimed the original intention of the ADA. By approving the Amendments Act, Congress attempted to broaden the narrow scope the U.S. Supreme Court crafted through its rulings, Traynor says.

“Rarely do lawyers get to see the U.S. Supreme Court overturned, and for Congress to get together and unanimously agree on anything is pretty amazing,” she says.

Among other things, the ADAAA established that a person still qualifies as disabled even if they are in remission from a particular disease or their medication controls their disability.

“It makes common sense not to punish a person for what he or she can do to live a better life,” Traynor says.

However, though Congress passed the ADAAA in 2008, the Equal Employment Opportunity Commission has yet to provide implementing regulations, she adds.

“I understand it takes time to draft and publish implementing regulations, but we need guidance yesterday. The process from passage to implementation of the regulations is extremely long — too long.”

More Legal Battles Ahead
Along with a few procedural glitches, there are plenty of larger issues that must be resolved now that the ADAAA has expanded the definition of what it means to be disabled and the accommodations that must be made for those who do fit within that definition.

TriMet’s Pribbanow says service animals present one of the more controversial issues the transit agency faces in accommodating its disabled passengers.

While guide dogs have long been accepted on mass transit, in the workplace and in retail stores, the title of “service animal” has been extended to some suspicious species of late, primarily in the name of emotional comfort. The U.S. Department of Justice is evaluating the matter and is likely to exclude reptiles, rodents and wild or exotic animals from retaining “service animal” status.

Also, Pribbanow adds, TriMet is examining its definition of what qualifies as a mobility device, from larger-than-average wheelchairs (a growing issue in light of the nation’s obesity problem) to Segways and three-wheel bicycles.

DRO’s Joondeph believes some of the biggest disability rights issues on the horizon relate to America’s aging population and the health-care reform that is under way.

“Right now, health care is very expensive, and we need to get ahead of the curve by changing our delivery system and controlling the cost,” he says. “In the delivery system, one of the key drivers is taking care of people with chronic health conditions.”

Such chronic conditions include diabetes and depression, two of the nation’s fastest-growing health problems, Joondeph notes.

Mark Williams, of counsel with Gaydos, Churnside & Balthrop in Eugene, specializes in elder law and has watched his practice area mature and evolve alongside the ADA.

Williams agrees that long-term care and other health-care issues facing the elderly are among the key considerations in the coming years. In fact, the tsunami of aging Baby Boomers means there will be an even greater merger between elder and disability law.

“The reality is that, at some level, people need assistance with their activities of daily living, from something as simple as meal preparation and house cleaning to medication management,” Williams says. “How we pay for that — whether it’s the elderly or the disabled — is becoming more of a pressing issue because many people don’t have the assets to pay indefinitely for long-term care.

“We’re living longer with more medical disabilities, and how we’re going to pay for that and keep quality of life as high as reasonably possible is a big question,” he says.

At the other end of the age spectrum, children diagnosed with physical and mental disabilities have a bigger impact on K-12 educators. The U.O.’s von Ravensberg says there is a joint effort between the university’s law school and its education department to give law students and teachers in training the opportunity to network and discuss some of the issues they will face together, particularly with the rise in children diagnosed with autism and learning disabilities.

“One of the important things the education students have learned is that the ADA also applies to K-12 education,” she says. “And one of the goals of my class is to give students a broad perspective of disability over a person’s life span.”

Justice Walters notes that the broad area of mental disability is quickly becoming a hot-button issue within disability law.

“People tend to be more sympathetic with people who have physical disabilities than those with mental disabilities,” she says, adding it’s often more difficult for employers to tell when someone with a mental disability is able to work or not.

“Disabilities can be very significant and yet people can be able to work, and trying to accommodate that in the right way can be difficult,” she says.

Meneghello, who advises and represents employers on disability rights matters, notes that post-traumatic stress disorder (PTSD) will be a huge issue for business owners as war veterans return from Iraq and Afghanistan and re-enter the workforce.

“They have to treat an employee with PTSD or bipolar disorder or any other mental health issue just as they would someone in a wheelchair,” he says.

However, such “hidden disabilities” sometimes incite inappropriate behavior on the job, so the dilemma facing employers is whether they have the right to discipline a disabled employee for such behavior.

Another burning issue, Meneghello says, surrounds the legal obligation employers face to reassign a disabled person to a vacant position — even if there are more qualified, able-bodied people who could do the job — before being legally within their right to fire the disabled employee.

“If it’s vacant and available, you have to put someone in that job if they meet the basic minimum requirements, even if someone else is better qualified to fill that position,” he explains, adding various jurisdictions interpret the obligation differently and the Supreme Court has yet to rule on it. Many, though, consider it merely another form of affirmative action.

With the ADA’s passage 20 years ago, few could have predicted the legal debates that would ensue. And, with passage of the ADA Amendments Act, further debate already is underway. What most do agree on, though, is that the disabled — and society as a whole — benefit greatly from this 20-year-old landmark legislation.

“We’ve made progress and there’s a lot more work to be done. I think people recognize that the ADA fosters social well-being,” Joondeph says.

 

Endnote

1. “People first” is defined as the practice of using person nouns, not disability nouns, to describe others. Thus, for example, preferred usage is “the person with schizophrenia,” not “the schizophrenic.” 


ABOUT THE AUTHOR
Melody Finnemore is a Portland-area freelance writer and a frequent contributor to the Bulletin. 

© 2010 Melody Finnemore


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