President’s Message: Looking at the ADA on Its 20th Anniversary

by Mitch Pomerantz
THE BRAILLE FORUM, Volume XLIX July 2010 No. 1
Posted to site July 5, 2010

In my May 2008 President’s Message, “ACB and the ADA Restoration Act,” I
discussed the Americans with Disabilities Act in the context of the
then-proposed ADA Amendments Act. At the time I expressed serious concern
over opening up the ADA to amendments, either positive or negative, given
the existing political climate. Fortunately, it turned out that my concern
was unfounded since the legislation passed without any narrowing of its
scope.

Many have argued, however, that the ADA hasn’t been particularly
useful to blind and visually impaired people from the standpoint of
obtaining employment, participating in government programs and services, or
accessing most commercial web sites. Thus, it is certainly timely and
appropriate to consider what impact the ADA has had on our lives as July
26th marks the 20th anniversary of its signing by President George H.W.
Bush. Before sharing
some thoughts on the ADA’s impact (or lack thereof) on us, I need to offer a
couple of observations or cautions, based on my nearly 14 years working in
the ADA arena.

Bear in mind the background provided in that 2008 column. I
indicated that most advocates, when the ADA was being conceived, expected
the law’s primary beneficiaries would be people with severe disabilities.
The ADA was drafted to encompass the broadest range of disabilities and
medical conditions in order to minimize the likelihood of opposition from an
otherwise excluded disability group. I pointed out that while there was
some criticism over this strategy, the ADA became law through the simple
expedient of including anyone and everyone who could possibly be considered
to have a disability. The result is that today, people with what are
classified as “visible” disabilities (including blindness) represent far
fewer than half the overall disability population as defined under the ADA.

My second observation concerns a serious lack of basic ADA
knowledge within our own community. The biggest misconception about the law
is that it is an affirmative action, or preferential treatment, statute. It
is not, and was never intended as such. The ADA was envisioned as an equal
opportunity/accessibility
statute. It was meant to level the playing field, not to give someone with
a disability a leg up. Many would argue — and make a pretty strong case —
that it hasn’t done even that much. The ADA won’t give us a job, and
shouldn’t be used to let us go to the head of the line at the local theater.

The intent of the ADA is to focus on “functional limitations,”
what a person can’t do, not on the disability itself. The ADA certainly
appears to emphasize physical accessibility, especially access for
individuals with mobility limitations (wheelchair ramps, wide doorways and
such). Throughout the four major titles or sections of the statute, there
are countless examples of barriers to physical access and far fewer examples
of barriers to access for people with visual disabilities. Nowhere in the
ADA is there any recognition that for those of us who utilize public
transportation, locating a government office far from a bus route means that
the facility is essentially inaccessible.

Two areas of direct relevance to us are not covered under the
ADA. The first involves the lack of any reference to audio description.
Title IV ­ Telecommunications — of the ADA includes provisions for
captioning for people who are deaf or hearing impaired. Audio description,
however, is not mandated in Title IV or anywhere else in the law. That
oversight is partly the result of the lack of concerted advocacy by ACB at
the time, but also because
the NFB argued against its inclusion.

The second area of importance to blind people which is not
addressed in the ADA is access to the web. The reason for this is, of
course, that the Internet was not in common use 20 years ago. It was then
the province of scholars, scientists and the military. Hence, no thought
was given to requiring web accessibility.

Let me turn for a moment to the issue of the employment, or
perhaps the unemployment, of blind and visually impaired people. It is
widely believed by the so-called disability experts that the overall
unemployment rate for people with disabilities — including the blind — of
working age (16 to 64) has actually gone up since 1990. The obvious
question to ask is why?

Briefly, the thinking of those who drafted the ADA was that once
it became law, people with disabilities who had hitherto been excluded from
the workplace would have the legal ammunition necessary to open the door to
the employment office. In point of fact, what has occurred is that the vast
majority of lawsuits — filed with the Equal Employment Opportunity
Commission — were initiated by people with disabilities against their
current or former
employers. Beyond this, most such suits are brought by people with hidden
or “non-visible” disabilities, not by those with mobility or vision
limitations. Clearly, the ADA has been something of a disappointment to
those who expected that it would greatly expand job opportunities for blind
and disabled individuals.

In assessing the impact of the Americans with Disabilities Act
on the lives of blind and visually impaired people over the last 20 years, I
have to say that quite possibly, we ourselves haven’t taken full advantage
of its provisions. In the years I worked for the city of Los Angeles, I
received just a handful of requests for materials in braille or large print,
and only a single request for a document on audiocassette. This was
extremely perplexing and disappointing. So, while the ADA has obvious
limitations for us, I’m not sure we’ve taken full advantage of what it does
offer.

I am absolutely convinced that we are better off as a result of
enactment of the Americans with Disabilities Act. However, I urge everyone
to become far better informed as to what the ADA does and does not do. It
is entirely up to us to be strong and knowledgeable advocates in promoting
the rights of blind and visually impaired people. And if you are so
inclined, give a tip of the cap to the ADA: our own civil rights statute,
warts and all.