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in our midot. Nevertheless. regardless of the reasons for the historic attitudes and treatment of persons with disabilities. the remedies feature of the ADA focuses on the curo rather than the diagnosis. Tho Section 504 model used in the ADA ensures
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 acceptablo dosign standard. Just as it is unthinkable to dosign 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 structuro 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. 0.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 notod that "lilt would be a rare case indeed in which a hostile discriminatory purpose or subjective intent to discriminato 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 beliet 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 energios on remedies rather than fault. Under the Sonate compromise ADA bill. individual plaintiffs are only allowed to obtain injunctive relief. Consequently, oven more than in a private action for
Moreover, in addition to providing a means for renodying already extant accessibility problems, the regulatory process envisioned by the ADA will provide an offoctive means for educating the public about accommodating persons with disabilities. The regulations promulgated under the ADA will serve as an ettective encouragement with good working instructions for covered entities to provide an alternative to the all-too-common current practice of segregating or ignoring persone with disabilities.
This educational process is a critical step in any effort to integrato poroons 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 tho goneral public about their needs and capabilities. Consequently, the ADA regulations will serve an important social role that neither the marketplace nor Amorican 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 ontity is irrelevant to a determination of an appropriate remedy designed to integrate the person with a disability: it will be accommodation and not blamo or punishmont that will serve as tho substantivo focus for any private lawsuit brought under the public accommodations provisions of the ADA.
enormously important ultimate objectives of the ADA. logitimizes the logislation avon as against the sacrosanct ideal of unobtrudod treo entorprise. Whilo l. along with most good Republicans. view any effort to regulato 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.
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
Nevertheless. I was concerned that there was no safety valve
for the enormous cost pressures that might be imposed on small
businesses within somo circumstances contemplated by the bill. That concern has been more than vitiated by the Senate compromise
version of the bill that includes an "unduo burdon" relief
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 tho unleashing of the
• The small business exemptions in the ADA track the exemptions that exist in other civil rights law. Titlo 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 accomodation 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 onthusiasm of the millions of workingage Americans with disabilities who are isolated. segregatod. 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 diroct 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