in our midst.' Nevertheless, regardless of the reasons for the historic attitudes and treatment of persons with disabilities. the remedies feature of the ADA focuses on the cure rather than The Section 504 model used in the ADA ensures the diagnosis. that it is the actual effects of policies or practices of covered entities, rather than the reason for those policies or practices. that is addressed by the legislation." 'Architecturally inaccessible facilities are not natural occurrences. They are the product of human attitudes that consciously or not have accepted the notion that structural use limited to the able-bodied is an acceptable design standard. Just as it is unthinkable to design a building with a bathroom only for use by men, it ought to be just as unacceptable to design a building that can only be used by able-bodied persons. It is exclusive designs, and not any inevitable consequence of a disability that results in the isolation and segregation of persons with disabilities in our society. Our structures are a reflection of our social attitudes: every inaccessible structure represents at least one person whose conscious or unconscious attitude toward the disabled is based on the notion that segregation of the disabled is an acceptable practice. 'This point is consonant with the litigation experience under Section 504, whereunder the vast majority of cases brought are not for willful refusals to accommodate persons with disabilities. See, e.g.. Pushkin v. Regents of University of Colorado, 658 F.2d 1372. 1385 (10th Cir. 1981) (in rejecting University's assertion that "disparate treatment" test requiring some proof of motivation by intentional discrimination should be required in Section 504 cases, court noted that "[ilt would be a rare case indeed in which a hostile discriminatory purpose or subjective intent to discriminate solely on the basis of handicap could be shown. Discrimination on the basis of handicap usually results from more invidious causative elements and often occurs under the guise of extending a helping hand or a mistaken, restrictive belief as to the limitations of a handicapped person.") Most cases instead deal with whether an accommodation would be effective and whether it would pose an undue burden on the covered entity without focusing on the mental state of the entity being sued. This is a very pragmatic approach in dealing with problems related to disability in that it focuses energies on remedies rather than fault. Under the Senate compromise ADA bill, individual plaintiffs are only allowed to obtain injunctive relief. Consequently, even more than in a private action for Moreover, in addition to providing a means for remedying already extant accessibility problems, the regulatory process envisioned by the ADA will provide an effective means for educating the public about accommodating persons with disabilities. The regulations promulgated under the ADA will serve as an effective encouragement with good working instructions for covered entities to provide an alternative to the all-too-common current practice of segregating or ignoring persons with disabilities. This educational process is a critical step in any effort to integrate persons with disabilities into the mainstream of American society. It is precisely because of historic ignorance or oversight by ADA-covered entities that persons with disabilities are isolated. The common disability-related experience of isolation makes it extremely difficult for persons with disabilities to develop the resources and organization necessary to educate and persuade the general public about their needs and capabilities. Consequently, the ADA regulations will serve an important social role that neither the marketplace nor American culture has independently fulfilled. The fact that this social role has never been and is unlikely to be filled by any private initiative, along with the damages under Section 504, the state of mind of a covered entity is irrelevant to a determination of an appropriate remedy designed to integrate the person with a disability; it will be accommodation and not blame or punishment that will serve as the substantive focus for any private lawsuit brought under the public accommodations provisions of the ADA. enormously important ultimate objectives of the ADA. legitimizes the legislation even as against the sacrosanct ideal of unobtruded free enterprise. While I, along with most good Republicans, view any effort to regulate business with an extremely jaundiced eye. I can safely say that a reasoned analysis of the Senate compromise ADA renders inescapable the conclusion that it is essential, timely, and absolutely reasonable as presently crafted. My initial review of the original bill last year left me with some concern about its impact on small business. I was very understanding of the need to include small businesses within the scope of the substantive provisions of the ADA. If the public accommodations provisions in the ADA are to have any meaning, they must have broad application to small as well as larger businesses. Many restaurants where my client or firm business is conducted are small businesses. Many of the businesses in my neighborhood and community that I would like to patronize but cannot due to inaccessibility are small businesses. It is important that the public accommodations substantive provisions not differentiate among businesses of different sizes because it is access that is at stake. Any exemption based strictly on size and no other factor would effectively deny the very right of access to the types of businesses that this bill is designed to create. Nevertheless. I was concerned that there was no safety valve for the enormous cost pressures that might be imposed on small businesses within some circumstances contemplated by the bill. That concern has been more than vitiated by the Senate compromise version of the bill that includes an "undue burden" relief provision. I am now firmly convinced that all of America stands to gain from the passage and implementation of the ADA as it now exists. Aside from the human dignity benefits that will be reaped by Americans with disabilities. the most obvious benefit to the public at large will be realized from the unleashing of the The small business exemptions in the ADA track the exemptions that exist in other civil rights laws. Title VII of the Civil Rights Act of 1964. which prohibits discrimination in employment on the basis of race, sex, religion or national origin. exempts employers with 15 or fewer employees. The ADA adopts the same exemption. By contrast. Title II of the Civil Rights Act of 1964, which prohibits discrimination in public accommodations on the basis of race, religion or national origin, does not have a small business exemption. This differentiation is logical: the point of a public accommodations provision is to ensure that people with disabilities (or people of a certain race) can gain access into public places, such as restaurants. movie theaters and stores. The fact that such a business may have only five or ten employees is irrelevant to the issue of providing access. One related relevant consideration, however, would be whether the provision of access would create an undue burden for any particular business no matter what the size of the business. The ADA in fact takes this concern into account and provides a flexible measure of undue burden by considering the size of the business along with the cost of the accommodation in deciding whether the provision of the accommodation would create an "undue burden" on the business. Size alone doos not transform every form of accommodation into an "undue burden." Even though this flexible standard is necessary in order to reasonably address the vast number of different situations that are likely to arise under the ADA, the standard and practice for determining the existence of an "undue burden" under the ADA will be guided by fifteen years of experience using the same standard under Section 504. The factors outlined in the ADA are the same factors set forth in the Section 504 regulations (size of business, type of operation and cost of accommodation). talents, potential, and enthusiasm of the millions of workingage Americans with disabilities who are isolated, segregated, or unproductive simply by virtue of the inhospitable and inaccessible environments in which they live. There will also be a direct financial benefit to the federal government. In my case, when I finally was able to obtain permanent employment I no longer had to collect my monthly Social Security disability payment. Medicare benefits or vocational rehabilitation funding. Instead, I became a productive, taxpaying citizen able to support the domestic and medical bills I incurred through salary and benefits obtained on the job. Even though the federal benefits that I was receiving before I became employed were minuscule compared to those received by most persons with severe disabilities, only four years after going to work I now estimate that the net direct and positive financial impact on the federal government due to my employment is approximately $40.000 to $50,000 per year. This benefit is reaped not just directly by the federal government, but also indirectly by all taxpayers including the covered entities that will incur the direct costs associated with the ADA. - The other direct beneficiaries in this process will be employers. In my case. Pettit & Martin now has a professional employee who is enormously grateful for the opportunity to work and live independently. The result, I believe, is that I exhibit on-the-job performance well above firm expectations, a level of dedication and commitment to the firm that is typically not found |