Oregon State Bar Bulletin NOVEMBER 2014
National preparations are underway for the 25th anniversary of the Americans with Disabilities Act, including a legacy project that provides multiple forums for people to talk about the act’s history and its future.
Oregon attorneys who have worked with the ADA since its passage in 1990 say its impact has been overwhelmingly positive over the last quarter century. Its implementation got off to a rocky start, however, and while the public’s understanding of it has grown, there are several improvements that need to be made over the next 25 years.
Portland attorneys Dana Sullivan and Dennis Steinman have litigated a host of ADA-related cases over the years. They agree that the goals originally intended for the act were sorely misinterpreted, largely due to the U.S. Supreme Court’s early rulings. These rulings severely limited the act by focusing on what constituted a disability rather than how disabilities should be accommodated. Congress in 2008 effectively reversed the Supreme Court’s approach with the ADA Amendments Act, which significantly broadened the definition of disability and focused on legal interpretations of what constitutes reasonable accommodation for people with disabilities.
“From a litigation standpoint, defendants were winning summary judgments the majority of the time before the ADA Amendments Act. The amendments act shifted it the other way, and the vast majority of cases were in the employment arena,” says Steinman, a civil rights litigator with Kell, Alterman & Runstein and one of the state’s first lawyers to become fluent in American Sign Language.
“The amendments act alone, even if you disregard everything else in the ADA, has been a rollercoaster ride for disabled people in terms of employment and other aspects of their daily lives,” Steinman says. “It took a very long time for the public and private sectors to grasp what they were responsible for and what they had to pay for. There has been a shift not only in how accommodation is perceived, but also about who pays for the accommodation.”
Sullivan, a partner with Buchanan, Angeli, Altschul & Sullivan and president of the Multnomah Bar Association, says she also witnessed a sea change in the focus of litigation once the amendments act was passed.
“The fight is where it should be, which is over what is being done to accommodate people with disabilities,” she says.
Eric Fjelstad of Smith & Fjelstad in Gresham also began handling ADA cases shortly after the act’s passage and has seen a definite evolution. “The changes in our cases have directly reflected the amendments. It used to be a drag-out fight about whether the client was disabled,” he says, recalling a particular client who was diabetic and the ensuing argument about whether that qualified as a disability. “It was interesting because I had just been diagnosed as a diabetic and I learned a lot during that case.”
Fjelstad says the battle now wages about how to provide accommodations and who is responsible. As he sees it, there is a lot of gray area surrounding these issues.
“There are very liberal standards that need to be fleshed out through case law as far as who is responsible for the breakdown in the conversation about reasonable accommodations and how they should occur,” he says. “These are questions that are out there and need to be addressed in the relatively near future.”
Litigation Common Despite Clearer Rules
Bob Joondeph, executive director of Disability Rights Oregon, says a noticeable change regarding the ADA is the increased enforcement that has occurred under the Obama administration. This has generated more action and clarity for businesses and other private and public entities, which now face greater accountability after years of stagnation in meeting ADA requirements.
Among the ADA cases that have had a major impact, the 1999 Olmstead v. L.C. decision of the Supreme Court held that unjustified segregation, including institutionalization, of people with disabilities is discriminatory and violates Title II of the ADA. The court ruled that public entities must provide community-based services to people with disabilities when such services are appropriate and when community-based services can be reasonably accommodated.
“This wasn’t just a civil rights perspective, it was a matter of cost,” Joondeph says, noting most social services cost less when provided in a community setting. “That case resulted in a series of legal actions and policy changes at state and federal departments of human services, and it is still driving policy to this day.”
A few notable public services were exempt, though, and these included Amtrak and intercity public transit.
“Both did virtually nothing in the time they were given to become compliant, and they sought deadline extensions,” Joondeph says, adding the ADA’s passage generated numerous complaints within the business community. “Private and quasi-public entities didn’t want to make investments until they absolutely had to.”
Steinman laments the fact that while many public and private entities now embrace the ADA and its provisions, all too often it takes lawsuits to get them to that point. And that is frequently the case even after entities conduct self evaluations to determine how they can improve their ADA compliance.
He points to Cannon Beach as a highly visible example. In 2000, he filed a class action lawsuit that demanded the city make all of its public spaces accessible. “Now it is one of the most accessible cities in Oregon, but public entities are slow to make improvements without litigation,” Steinman says.
He also initiated a class action suit against Regal Cinemas to require the national chain to provide accommodations for hearing-impaired people. More recently, Steinman filed a claim against Oregon’s Department of Corrections that would require it to fairly accommodate inmates who are hearing impaired.
“Back in the ’90s the U.S. Supreme Court ruled that prisons are covered under the ADA, and here we are in 2014 and the state still isn’t complying with the rules,” he says. “The city of Portland is now conducting a self evaluation and I’m thrilled about that, but it is 25 years later now and there are still public places that are not accessible for people who need accommodations.”
Steinman says he believes the ADA’s first 25 years were mostly about education and public awareness, and that most employers now have a greater understanding of the act and its requirements.
“The cases I’m seeing today are more about public entities that are used to doing things a certain way and aren’t willing to make the necessary changes, even if they have the correct policies in place,” he says. “What is it that gets people to understand what it is they need to do? Unfortunately, a lot of times it’s litigation, and I’m not seeing my practice slow down at all.”
Joondeph concurs that change is slow to come when it comes to accommodating people with disabilities, though he points to several noticeable enhancements that have been made, including curb cuts and wheelchair ramps on buildings. In addition, Oregon’s laws regarding service animals have improved.
“The world of technology has changed things as well. I can read the computer and make the print larger for my aging eyes,” he says, adding technological advancements include voice synthesizers for reading materials and closed captioning that help people who are visually or hearing impaired.
As America’s population ages and more war veterans return home, a growing number of people require accommodations and increase mainstream awareness of the need, Joondeph notes.
“I think many people realize features like automatic doors are also helpful for people who don’t have a disability,” he says. “Few people are perfect and everyone needs some kind of accommodation at some point in their lives, so my hope is that the principles of the ADA will become universal.”
Cathy Rhodes, statewide ADA coordinator for the Oregon Judicial Department, said the most common accommodations provided for court proceedings include assistive listening devices for people who are hearing impaired and American Sign Language interpreters. Technology improvements now allow these interpreters to appear via video, giving rural areas greater access to resources more typically based in urban cities.
Rhodes says it is increasingly common to receive requests for some kind of accommodation during court proceedings. “Our whole population is getting older and we’re living longer, so this is what we’re seeing,” she says.
Among the aging members of the population are veterans who initiated the very first accessibility laws in the 1960s, says Denise Spielman, ADA technical assistance specialist at the Northwest ADA & Information Technology Center.
“Thanks to our veterans, I think the largest gains that have been made relate to access to the built environment,” says Spielman, noting veterans successfully advocated for the Architectural Barrier Act of 1968 and the Rehabilitation Act of 1973. Today’s generation of veterans will continue to advance the state of the art in accessibility within the built environment, she says.
‘Hidden Disabilities’ Lead ADA’s Future
For the next generation of those dedicated to using the ADA as a foundation for improving life for people with disabilities, the disabilities that are not visible represent the new frontier.
When Joondeph speaks before an audience, he often asks the audience to raise their hands if they are taking prescription medication for some kind of mental health issue. No one raises their hands, even though an estimated one in four Americans is on medication for some type of psychological treatment.
“There continues to be discrimination against certain types of disabilities and a stigma against certain types of disabilities, particularly in the mental health arena,” Joondeph says.
Sullivan, who says people with bipolar disorder make up a good portion of her client pool, sees chronic fatigue syndrome, depression and other mental health issuesas top priorities in continuing to improve the ADA.
“There is still a stigma around mental health disabilities, and people with those disabilities are reluctant to ask employers for help because they are afraid of potential repercussions,” she says.
Another hurdle continues to be proactive conversations about reasonable accommodations, which in the best cases involve an exchange of helpful information but, unfortunately, many times devolve into posturing and worries about litigation, Sullivan says.
“I always encourage people to give their employers the benefit of a doubt and go at it with an expectation that the employer wants to do the right thing,” she says. “If that dialogue is successful, it’s really a valuable process.”
Spielman says she can relate to those who have disabilities that can’t be seen. After she began her ADA advocacy work, she was diagnosed with “hidden” disabilities that include fibromyalgia. “If you look at me you can’t see anything wrong with me at all, and that’s the way it is for so many people with disabilities,” she says.
For those with visible disabilities, however, there are plenty of obstacles yet to overcome. Among them, America’s obesity epidemic means wheelchairs are going to get bigger and, therefore, ADA standards for door widths will need to adapt.
And, despite years of increasing public awareness about people with disabilities, social acceptance remains a problem. Spielman shares a story from a friend in a wheelchair who jests that she has the superpower of invisibility because people walking down the street won’t make eye contact with her.
Employment discrimination continues to be problem as well, Spielman says, adding people with disabilities are far less likely to be employed compared to the rest of the population.
“There’s a dearth of willingness to look at a person’s abilities rather than their disability. Business owners are loathe to hire a person with a disability because they think, ‘Oh, I’ll have to provide reasonable accommodations and it’s too expensive,’ ” she says, adding many business owners are not aware of the tax credits and deductions available for providing reasonable accommodations.
Veterans, despite the social gains they have achieved for people with disabilities over the years, also face obstacles as they try to reintegrate into society with injuries received in combat.
“We have not really addressed traumatic brain injuries and post traumatic stress disorder. There’s such a crying need for mental health professionals who can help these veterans,” Spielman says.
Bruce Harrell, a trial lawyer based in Jackson County, says another good starting point for the next 25 years of improvement to the ADA is within Oregon’s legal system itself. Harrell, who is blind, has experienced the legal system’s strengths and shortcomings firsthand, starting with his first job interview out of UCLA’s law school
“I interviewed at a firm and he came right out and told me, ‘I’m not going to hire you because you’re blind.’ There was no law against it then and now there is, so I would say that’s a big difference,” he says.
Harrell went on to work for a more forward-thinking California firm and then moved to Oregon, where he found a mixed bag of accommodations for people with disabilities.
“Until recently, I’ve had very few issues at all. Court personnel and judges have been very patient and understanding, and blindness has not really been an issue for me as an attorney,” he says.
Websites and other electronic communications are oftentimes difficult for Harrell to negotiate, however. He has worked extensively with the bar and state agencies to improve their accessibility.
“Ecourt is still mostly inaccessible and that is a concern that I have, not for me because I’m retiring at the end of the year, but for other blind lawyers who come along after me,” he says.
ABOUT THE AUTHOR
Melody Finnemore is a Portland-area freelance writer and frequent contibutor to the Bulletin.
© 2014 Melody Finnemore