What lessons can the Americans with Disabilities Act teach us, and what are its drawbacks?

By Lara Defterios

The Americans with Disabilities Act, or the ADA, was a ground-breaking disabilities civil rights law when it was signed by President George G.W. Bush on July 26, 1990. Its aim was, and is, to protect people with disabilities from discrimination to improve their education and employment. It also requires that public transport, buildings and workplaces be accessible, enabling them to participate fully in public life. There was a real sense of bipartisanship at the time of its passing; in the then-President’s words, “Today’s legislation brings us closer to that day when no Americans will ever again be deprived of their basic guarantee of life, liberty and the pursuit of happiness.” (Source) Today, we must continue to hold current legislation to a high standard in terms of human rights: what can the ADA still teach us in 2022, and where would it need reform?

It is worth understanding the progress that the ADA has made in a relatively short period of time. It was preceded by the rise in popularity of the ‘Independent Living’ movement, which in the 70s, rejected the institutionalisation of people with disabilities and worked for their rights. In 1973, Section 504 of the Rehabilitation Act prevented the exclusion of disabled individuals from federal funding programs (Source). This was the first time that the injustices faced by the community were actually labelled as discrimination, triggering important legal debate about how disability was defined and classified. In 1977, this culminated in a peaceful federal sit-in which lasted a record-breaking 28 days. Discrimination persisted however, and advocates concluded that without comprehensive civil rights legislation, people with disabilities would continue to struggle for their rights. This was the environment in which the ADA came into fruition, drafted by the National Council on Disability (NCD) in 1988. In 1989, it was introduced in the Senate by Tom Harkin, Ted Kennedy, David Durenberger, and former Senator Lowell Weicker, and in the House by Tony Coelho (Source). When it passed the Senate in 1990, Tom Harkin’s speech was made in American Sign Language (ASL), the first ever to be made on the floor (Source).

Significant progress towards disability rights has been made in the U.S. as a result, creating a legal framework for preventing discrimination. It is important to listen to those whose experiences have tangibly changed and improved in just the span of their lifetime. Judy Heumann for example, who served as the State Department’s first Special Advisor for International Disability rights from 2010-2017, was denied enrolment at several points in her education on account of her wheelchair being a ‘fire hazard’. As she told TIME about the ADA, “It’s totally different today… Under that transformative law, schools and workplaces are now required to have ramps, elevators, designated parking spots and curb cuts, and to provide accommodations for people with a range of disabilities, including those who are blind or deaf.” (Source) The Americans with Disabilities Act was also the world’s first declaration of equality for people with disabilities, providing a framework for advocates around the world. Indeed, according to the Disability Rights Education and Defense Fund, disability rights laws have been passed in 181 countries since the year 2000. In 2006, the United Nations’ Convention on the Rights of Persons with Disabilities was endorsed by 157 member states (Source), this global impact reflecting changing perceptions of the disabled community as a whole.

There is still, however, undeniably more work to be done in terms of disability rights, where the ADA falls short. In the words of Ari Ne’eman, then Co-Founder and President of the Autistic Self Advocacy Network, “The ADA is ultimately a promise that has been tremendously impactful in some areas and yet to be fulfilled in other areas.” (Source) The most significant gap is the employment access that it aimed to provide. The figures aren’t favourable here; approximately 61 million Americans, around 1 in 4, have a disability, but only around 19% are in the workforce (Source). Indeed, according to TIME, “Disabled people are still roughly twice as likely as nondisabled Americans to be unemployed and to live in poverty, and these numbers have persisted over time.” (Source) Susan Parish, then the inaugural Nancy Lurie Marks Endowed Professor of Disability Policy and Director of the Lurie Institute for Disability Policy at the Heller School for Social Policy and Management, at Brandeis University, points this out as well. She explained to BrandeisNow that the ADA is a “voluntary compliance law”, and that it “provides only injunctive relief and attorney fees to plaintiffs who successfully sue and win their cases.” (Source) Strengthening this area would therefore encourage employers to comply with the law, and disabled people to sue if their rights are violated.

This is, unfortunately, an unintentional consequence of the ADA, because it disincentivises employers from hiring people with disabilities at all. Findings by the National Bureau of Economic Research (NBER) show that this is rooted in compliance costs. Within the first decade of the law’s passing, for instance, employers paid over $174 million in settlements with the Equal Opportunity Employment Commission, excluding legal fees (Source). Employment rates for men and women “fell sharply after the ADA,” particularly with companies large enough to adhere to ADA requirements, but too small to “absorb compliance costs.” Additionally, the NBER reports, “in states with large numbers of ADA-related discrimination cases in previous years, fewer disabled people are hired afterwards.” (Source)

Discourse around employment rates among people with disabilities is connected to wider conversation about compromises between civil rights and business. As demonstrated earlier, the ADA currently exists in a way that employers can take cost-saving loopholes or avoid hiring disabled people at all. This is due, in part, to the efforts of Tom Harkin and Edward Kennedy, who in 1988 “narrowed the scope of the accommodations to be made so that the bill was more palatable to business and therefore more likely to become law,” according to the ADA Legacy Project (Source). While these changes were essential in securing bipartisan support for the legislation in the Senate, it also means that when it comes to the private sector especially, disabled people become a liability in terms of costs. This reality doesn’t negate the need for the ADA at all, but points to potential reform in order to incentivise employers to include disabled people in their workforce.

The Americans with Disabilities Act is, overall, a landmark piece of legislation that has paved the way for the civil rights of disabled people in the U.S. and abroad. It should also, however, continue to lead continuous work around employment, accessibility, and inclusion for the disabled community. The COVID-19 pandemic has also brought on more public debate around physical restrictions, and reliance on community and government support. The American Rescue Plan of 2021, for example, included $3bn for access to inclusive services for students with disabilities (Source). And now that the ADA has provided a basis for non-discrimination, a distinction should be made between human rights law and the reality of employment rates of people with disabilities. President Biden’s statement in the wake of the ADA’s 32nd anniversary this year is, appropriately, one of optimism: “The ADA… enshrines the idea- central to the spirit of our Nation- that all of us are deserving of equal dignity, respect, and opportunity,” (Source) reinstating the values that brought it about in the first place.