|
Implementation of the Americans with Disabilities Act: Challenges, Best Practices, and New Opportunities for Success
Letter of Transmittal
July 26, 2007
The President
The White House
Washington
,
DC
20500
Dear Mr. President:
The National Council on Disability (NCD) is charged with
gathering information about the implementation,
effectiveness, and impact of the Americans with Disabilities Act (ADA). In
keeping with this requirement, I submit this new report, entitled Implementation of the
ADA
: Challenges, Best Practices, and New
Opportunities for Success. This report reflects the experiences and ideas
of
ADA
stakeholders from around the
country, including small and large businesses, employers, judges and legal
professionals, governmental entities, and individuals with disabilities,
concerning
ADA
implementation.
Through this extensive stakeholder input, NCD learned of the many strategies
for
ADA
implementation that have
been successful, as well as obstacles that are preventing
ADA
implementation.
One important finding is that meaningful
ADA
implementation is both possible and practicable. Some effective
ADA
implementation practices were identified that can serve as models and that
illustrate how diverse covered entities are going about making the promise of
the
ADA
a reality. However, in many
areas, the
ADA
remains
unimplemented, and gaps in information, knowledge, and interest in complying
with the
ADA
still exist.
Therefore, this study also focused on understanding why certain sectors of our
society have made little progress in
ADA
implementation and on developing recommendations to address those
implementation gaps.
The ADA implementation report contains extensive
recommendations for improving ADA implementation, and NCD remains committed to
working with the Administration, Congress, and the public to achieve the
promise of the ADA for all Americans—the elimination of disability-based
discrimination in all aspects of society.
Sincerely,
John R. Vaughn
Chairperson
National Council on Disability Members and Staff
Members
John R. Vaughn
,
Chairperson
Patricia Pound
, First
Vice Chairperson
Glenn Anderson, Ph.D., Second Vice Chairperson
Milton Aponte, J.D.
Victoria Ray Carlson
Chad
Colley
Robert R. Davila
, Ph.D.
Graham Hill Young Woo Kang, Ph.D.
Kathleen Martinez Lisa Mattheiss Anne M. Rader Marco Rodriguez
Cynthia Wainscott Linda Wetters
Staff
Michael C. Collins, Executive Director
Martin Gould, Ed.D., Director of Research and Technology
Mark S. Quigley, Director of Communications
Julie Carroll, Senior Attorney Advisor
Joan M. Durocher, Senior Attorney Advisor
Geraldine Drake Hawkins, Ph.D., Senior Program Analyst
Mark Seifarth, Congressional Liaison
Pamela O’Leary, Sign Language Interpreter
Brenda Bratton, Executive Assistant
Stacey S. Brown, Staff Assistant
Carla Nelson, Secretary
Acknowledgments
The National Council on Disability wishes to express its appreciation to Susan Henderson, Managing Director, Mary Lou Breslin, Senior Policy Advisor, Silvia Yee, Staff Attorney, and Marilyn Golden, Policy Analyst, Disability Rights Education and Defense Fund (DREDF), Linda Toms Barker, Principal Research Analyst and Kathleen P. Magill, Senior Analyst, Berkeley Policy Associates, and Karen Peltz Strauss, KPS Consulting, for conducting the ADA Implementation Study and for drafting this report.
Table of Contents
Executive
Summary.
7
Introduction
19
I. Background.
19
II. Purpose and Scope of the Report
22
III. Report Structure.
24
PART 1. Stakeholder Observations and
Effective ADA Implementation Practices.
25
Introduction.
25
I. Stakeholder Observations.
26
A. Employment (Title I)
26
1. Key Implementation Issues and Discussion.
26
2. Key Stakeholder Recommendations.
36
3. Topics for Further Research.
45
B. Public and Private Transportation (Title
II and III)
46
1. Key Implementation Issues and Discussion.
46
2. Key Stakeholder Recommendations.
57
3. Topics for Further Research.
61
C. Public Accommodations (Title III)
62
1. Key Implementation Issues and Discussion.
62
2. Key Stakeholder Recommendations.
73
3. Topics for Further Research.
85
D. Telecommunications (Title IV)
90
1. Key Implementation Issues and Discussion.
94
2. Key Stakeholder Recommendations.
99
3. Topics for Further Research.
110
E. Disability Community.
111
1. Key Implementation Issues and Discussion.
111
2. Key Stakeholder Recommendations.
118
F. Observations by Stakeholders from
Diverse Cultures.
120
1. Key Implementation Issues and Discussion.
120
2. Key Stakeholder Recommendations.
122
G. Judicial Stakeholders.
124
1. Participants.
124
2. Discussion.
125
3. Conclusions.
132
II. Effective ADA Implementation Practices.
132
A. ADA Implementation Best Practices.
134
B. ADA Implementation Notable Practices.
140
1. Employment—Title I
140
2. Public Accommodations—Title III
145
3. Public and Private Transportation—Title
II and III
151
4. Telecommunications—Title IV..
155
5. Federal Government Agencies.
157
PART 2. Legal and Enforcement Tools.
157
Introduction.
157
I. Private Right of Action.
157
A. Introduction.
157
B. Title III and Voluntary Compliance.
157
C. Reasons for Widespread Noncompliance with
Title III
157
D. Title III and Serial Litigation.
157
E. Conclusion and Recommendations.
157
II. Class Actions and Settlements.
157
A. Introduction.
157
B. Problematic
Class Action Cases.
157
C. ADA Class
Action Education and Alternatives.
157
D. Other ADA
Class Action Cases.
157
E. Recommendations
for Further Research and Conclusion.
157
PART 3. Strategies
for Improving Public Awareness.
157
Introduction.
157
I. Rationale and Implementation Strategy
for the Easy Access Prototype.
157
II. The Easy Access Prototype.
157
Conclusion.
157
Endnotes....................................................................................................................................... 310
Appendices
Appendix A – Sample
Structured Negotiations Agreement A-
157
Appendix B – Stakeholder
Dialogue Participants. B-
157
Appendix C – Attorneys
Interviewed for Part 2 – Legal and Enforcement Tools. C-
157
Appendix D – Judicial
Stakeholder Focus Group Methodology. D-
157
Appendix E – Public Awareness
Research Methods and Findings. E-
157
Appendix
F – Summary of ADA Implementation Recommendations
by Targeted
Audience. F-
157
Appendix G – Mission of the
National Council on Disability. G-
157
Executive Summary
Introduction
The Americans with Disabilities Act (ADA) has been a catalyst
for significant progress in bringing about equality of opportunity for people with
disabilities. It has spurred increased architectural accessibility,
particularly in newly constructed buildings and facilities, an increase in
accessible fixed-route public transportation in most locales, and readily
available telecommunications services for people who are deaf or hard of
hearing. Some effective responses to certain implementation issues can be
considered best practices and can serve as models.
The other side of the picture depicts areas where it has been
very difficult to bring about full or even partial implementation of the law by
covered entities, and where a gap in expectations between people with
disabilities and covered entities remains or has even widened. These
intractable pockets of resistance to implementation exist under various titles
of the
ADA
and can be either
specific or broad in their scope. One example in the area of transportation is
that stop announcements on public fixed-route bus systems remain inconsistent.
A broader example under Title III is the ongoing widespread lack of
implementation among such small businesses as restaurants, hotels, medical
offices, and retail establishments.
Without minimizing the successes that have been achieved since
the
ADA
’s enactment in 1990, it is
evident that progress cannot continue without addressing the underlying reasons
some areas remain intractable and where the law has been implemented either
sporadically or not at all. On one level, underlying factors such as a lack of
appropriate and consistently available information and education about the
ADA
,
cost concerns, and limited enforcement underlie virtually all the problem
areas. On a deeper level, however, intractability in any given area or on any
given issue seems to occur when these factors interact with one another and
augment the already powerful stereotype that people with disabilities are
fundamentally and deeply incapable and, of necessity, live lives that are
separate from the rest of the population.
This is exemplified by indifferent voluntary compliance by
smaller Title III entities with narrower profit margins when their concern
about the potential cost of access combines with a perceived lack of
information, uncertainty about achieving technical
ADA
compliance, and inadequate Federal Government enforcement. The prevalence of
businesses operating in inaccessible buildings and not accommodating patrons
makes it difficult for people with disabilities to go out and about, and
participate and function in their communities. This, in turn, fuels widespread
lack of awareness about disability in general and fosters a lack of knowledge
about the extent to which disability is pervasive in the communities that
businesses and other entities serve. Such lack of awareness perpetuates the
view that people with disabilities do not represent a potential customer or
client base and the attitude that “I don’t have customers who need
accommodation.”
The same deeply embedded stereotype arguably is behind
limitations placed on the law by decisions handed down by the U.S. Supreme
Court. The
ADA
has produced mixed
results in employment, in part because the Court has narrowed the definition of
disability, thus denying civil rights protections to some people with
disabilities who encounter workplace discrimination or who could increase their
work performance with an accommodation. These cases, in combination with
another Supreme Court decision that has placed limits on the circumstances
under which attorneys can recover fees when they represent clients in
discrimination cases under Title III of the ADA, has made it more difficult for
people with disabilities to obtain representation, curtailing a major
enforcement tool of the law.
While the recommendations that ultimately arose out of a
national
ADA
stakeholder dialogue,
research, and identified best practices might differ in detail and in target
audience, they all seek to or actually do redress one or more of the underlying
factors impeding implementation of the law. Taken together, the recommendations
advocate for increasing the ready availability of
ADA
information, education, and technical assistance to all covered entities and
people with disabilities; creating financial incentives and developing
cost-sharing measures; or strengthening federal and private enforcement
measures.
Disability community stakeholders recognized the need to break
the cycle created by false assumptions and gaps in information, perceived
implementation costs, and weak enforcement that perpetuates areas that have
been intractable to implementation. The
ADA
’s
goal of promoting full community participation cannot be achieved without
eliminating the perception that people with disabilities are a wholly separate
group that exists functionally, practically, and conceptually apart from the
rest of the population. The great attraction of the paradigm, referred to by
some as universality and closely
aligned with the movement for universal design, is that it envisions a
physical, social, and economic environment that is designed for the entire
range of human function, and this ideal transcends virtually every aspect of
ADA
implementation.
Many stakeholders recognized the active interface between the
media and public perception, especially when stereotypes are involved.
Moreover, public perception of the
ADA
has been greatly influenced by negative media portrayals that generally
misrepresent the intent of the law and that recently have focused on the
motives of individuals who bring multiple access lawsuits, rather than on the
impact of successful
ADA
implementation. The disability community and other stakeholders recognized that
this longstanding problem calls for a robust and creative strategy that will
change the direction of reporting on the
ADA
and will use the media to correct rather than perpetuate stereotypes.
Key
ADA
Implementation Issues
Title I – Employment
In addition to the negative impact of the U.S. Supreme Court
rulings that narrowed the definition of disability, the right to reasonable
accommodation in the workplace has not been consistently understood or honored
by either employers or the courts. Providing reasonable accommodations for
applicants and employees with disabilities should become a standard and
ordinary cost of doing business. Decisions about accommodations should not rest
with a departmental level manager who is concerned about cost overruns. Rather,
businesses should adopt an accommodation policy that sets forth the steps
required to request an accommodation and establishes an entity-wide fund that
can be used to pay for accommodations and related costs.
A crucial, unmet need related to ADA Title I implementation is
ongoing, targeted training for employers on all aspects of Title I of the
ADA
,
as well as disability awareness for employers at all levels. People with
disabilities require similar training in order to know their employment rights
and to advocate successfully for themselves.
The movement for flexibility in the workplace brings people
with disabilities to the center of the discussion in which the workplace needs
of all employees are taken into account. The
ADA
establishes the principle of reasonable accommodation, which can serve as both
a guide and the moral authority for developing methods to support the needs of
workers with and without disabilities.
The Internal Revenue Service (IRS) and other federal agencies
concerned with implementation of the
ADA
should launch a new educational campaign that informs businesses about the
financial incentives and tax credits associated with hiring individuals with
disabilities. This information should be widely disseminated in tax filing
information and through other channels.
Titles II and III – Public and Private
Transportation
While public transportation has achieved significant levels of
accessibility, ongoing implementation issues include lack of sufficient
resources for
ADA
transportation
enforcement and lack of funding and resources for
ADA
implementation at the local level. A systemic organizational challenge is the
need for ongoing transit staff training on
ADA
requirements for all modalities, and a focus on good customer service. To
achieve meaningful implementation, disability access must be integrated into
all the components of large transit organizations.
Increasing demands for ADA paratransit is creating new
implementation challenges, including concerns that strict eligibility
assessments may be inadvertently discouraging riders from trying the
fixed-route system for fear of losing paratransit eligibility. Other problems
include poor access to transportation in rural areas, lack of accessibility to
privately operated over-the-road buses, accommodating oversized wheelchairs,
stop announcements on fixed-route bus systems, ensuring
that the gap between the train car and the platform does not exceed ADA
specifications, elevator maintenance, and the need for adequate
securement devices.
Title III – Public Accommodations
Significant problems remain in achieving meaningful
implementation of the
ADA
by small
businesses. The Department of Justice (DOJ) and others have created and
disseminated extensive technical assistance materials designed to help
businesses comply with the law, yet businesses indicate that they do not know
where to go for reliable information about the
ADA
.
Businesses express frustration that they cannot know with certainty what the
ADA
requires of them, and they resent
that they might be sued without being informed beforehand about accessibility
and other
ADA
problems.
Furthermore, many have difficulty equating access with discrimination. On the
other hand, people with disabilities think that widespread and ongoing lack of
access to many small businesses is indefensible 16 years after enactment of the
law. They interpret the lack of compliance to mean that businesses do not
recognize or value people with disabilities as bona fide customers or clients.
Poor implementation stems in part from the limited federal
enforcement role established in the
ADA
.
DOJ is not required to enforce every
Title III complaint it receives; thus, as a practical matter, people with
disabilities have only two methods available to them to achieve Title III
compliance by small businesses: They can file a private lawsuit or request that
the business voluntarily take steps that are readily achievable to make its
facility accessible.
While businesses indicate that they would comply with the
ADA
if they were informed about access and other problems, the experience of many
people with disabilities is that their initial requests for barrier removal are
met with misunderstanding, condescension, or hostility, or are simply ignored.
Organized efforts by the disability and small business community to educate
businesses and request voluntary compliance have also been met with
indifference. For example, 18 months after such a collaborative effort began in
San Francisco
, less than 3 percent
of 2,200 businesses that were offered information and assistance responded, and
less than 0.02 percent requested grants that were offered by the group for
accessibility surveys or modification planning. The group was forced to
conclude that litigation achieved greater compliance with state and federal law
and greater accessibility than a nonlitigious collaborative approach.
Practically speaking, however, many people with disabilities
do not have the resources to file private lawsuits. Most private attorneys lack
adequate knowledge about the
ADA
,
and the U.S. Supreme Court has created strong disincentives by limiting the
circumstances under which attorney fees can be recovered in
ADA
cases. As a result, Title III is overwhelmingly underenforced in most of the country. During 2005, 1,383 disability
rights cases were filed in federal courts, including cases brought under Titles
II, III, and IV of the
ADA
, as well
as cases brought under the Individuals with Disabilities Education Act (IDEA).
This is hardly a national “flood” of litigation, as the media suggest,
especially in the face of acknowledged widespread noncompliance with the
readily achievable barrier-removal provisions of the
ADA
.
Class action lawsuits against larger entities such as retail
department store chains have been among the more successful cases of Title III
litigation since the class action tool inherently tends to spread risk and
potential relief among an entire class of plaintiffs. Unfortunately, the past
few years also have brought problems in Title III class action lawsuits through
the use of an overly expansive class definition of affected people with
disabilities who were not adequately represented; the overbroad release of
access claims under both federal and state laws, which foreclosed future
litigation for years; and the binding of class members to architectural access
standards that were below the undisputed minimum standards established in the
ADA Accessibility Guidelines (ADAAG). These problems highlight the need for
greater education and training for disability rights attorneys working in Title
III, and for developing efficient ways to monitor against potential abuse and
collusion in the use of national and regional Title III class actions.
Widespread Title III compliance cannot be achieved without
business and public outreach, a visible and efficient administrative
enforcement procedure, the wide availability of qualified accessibility
expertise, and economic incentives such as tax and other credits.
Title IV – Telecommunications
Title IV has a financing mechanism that allows companies that
are charged with providing telecommunications relay services (TRS) to benefit
financially from the provision of these services. Since Title IV first went
into effect in July 1993, relay consumers and telephone companies have enjoyed
a cooperative relationship that has fostered innovative technologies and high
service standards. These innovations and improved standards have been
authorized by the Federal Communications Commission (FCC), the agency that
bears responsibility for implementing Title IV. Recently, increased competition
among companies entering the interstate relay business—many of which are not
traditional telephone companies—has provided added stimulus for improving and
enhancing relay products. Open rulemaking proceedings on every facet of relay
services have provided extensive and unparalleled opportunities for consumers
and providers to provide input on their needs and objectives, and have resulted
in rulings that have enabled relay services to evolve along with the rapid pace
of modern technologies.
Despite the considerable success of relay services, some
implementation issues remain in the areas of training and awareness, funding,
and service quality. Many potential relay users still are unaware of the
existence of relay services or have not received training on how to use them,
and there is a lack of knowledge about the availability and use of relay
services. Some businesses and governmental agencies refuse to use relay services
to exchange confidential information.
The traditional funding base is in jeopardy, as more services
are provided over the Internet and
there are no low-income subsidies for broadband access. Most state equipment
distribution programs do not provide funding for the devices required to use
high-tech relay services and there is no funding mechanism to reimburse
providers for the technical customer support needed to operate video equipment
used with Video Relay Service (VRS). Interpreter shortages in many communities
impede the effective provision of VRS.
No federal standards exist that assess the skills of
communication assistants (CAs) and interpreters who provide Internet-based text
and video relay services, and previous oversight mechanisms employed by the
states do not work for Internet-based relay services. New TRS delivery methods
that are Internet-based need the same level of oversight on the federal level
as exists for traditional TRS on the state level. Furthermore, state relay
services vary considerably in quality.
Examples of
ADA
Best Practices
Well-established
ADA
best practices illustrate that successful implementation is both possible and
practicable, and serve as models for other covered entities. The following
models also directly address at least one of the underlying issues or
stereotypes behind intractable implementation areas. They range from an
aggressive top-down commitment to recognizing people with disabilities as a
desirable market share, to a simple elimination of the pay discrepancy between
transportation employees who work with people with disabilities and employees who
work with the nondisabled population, to an intermediate agency that fills the
information/education and technical assistance gap between employees and
employers. The following examples meet specific structural and procedural
criteria, and the entities engaging in the practice collect and publish
quantitative outcome data that reveals the practical benefit for people with
disabilities.
·
Microtel Inns & Suites, the chain of newly
constructed budget/economy hotels, offers ADAAG-compliant sleeping rooms,
strong advertising, and significant staff training for franchise operators on
serving customers with disabilities. The company reported gains in its 2004
bookings for
ADA
room nights across
all distribution channels by nearly 275 percent over the previous year. In
addition, net revenues for
ADA
room
nights increased by more than 260 percent.
·
Resolving discrepancies in pay between
paratransit and fixed-route drivers resolves some of the chronic difficulties
that persist in paratransit service, such as high driver turnover. Tri-Delta
Transit in
Antioch
,
California
,
made this change in the late 1990s and lowered paratransit driver turnover by
50 percent. In
Wenatchee
,
Washington
,
Link Transit’s average operator has driven for 10 years, compared with most
paratransit systems, which have turnover of around 50 percent per year. This
longevity has resulted in skilled drivers who rarely get lost, know nearly all
their passengers, and operate at high productivity.
·
The Job Accommodation Network (JAN) is a service
of the Office of Disability Employment Policy (ODEP) of the U.S. Department of
Labor (DOL). JAN’s mission is to facilitate the employment and retention of
workers with disabilities by providing employers, employment providers, people
with disabilities, their family members, and other interested parties with
information on job accommodations, self-employment and small business
opportunities, and related subjects. In a recent evaluation, JAN customers
reported that implementation of worksite accommodations would significantly
reduce the individual’s level of limitation due to the disability. Further, JAN
customers reported having made highly effective accommodations at very little
or no cost.
Key Recommendations
A complete list of
ADA
implementation recommendations for specific audiences can be found in Appendix
F.
Recommendations for Congress
·
Congress must enact legislation that reverses
the Supreme Court decisions narrowing the definition of disability so
individuals with disabilities who were intended to be covered by the law are
again eligible to use it to challenge discrimination.
·
Congress must enact legislation that effects a
statutory repair of Buckhannon’s
condition of a “judicially sanctioned” change in the parties’ relationship for
the recovery of attorney fees under Title III, so that attorney fee-shifting
rules will apply if a Title III plaintiff or would-be plaintiff has been the
catalyst for a public accommodation’s coming into compliance with its Title III
obligations.
·
Congress must make compensatory damages
available under Title III.
·
Congress must establish a statutory minimum
damages amount for the denial of access rights under Title III.
·
Congress must provide specific funding and a
mandate to DOJ and all technical assistance organizations, such as the ADA &
IT Technical Assistance Centers, for outreach to chambers of commerce, Rotary
Clubs, and other small business organizations, especially those serving rural
areas and smaller towns. The assistance and cooperation of these business
associations, as well as any local disability advocacy groups that work with
small businesses, is needed to accurately inform businesses of their obligation
to comply with Title III, to disseminate technical resource information, and to
help lower the level of tension and fear in the business community.
·
Congress must provide additional resources for
enforcement of the
ADA
transportation provisions.
Recommendations for Federal Agencies
·
The Equal Employment Opportunity Commission
(EEOC), DOL, Small Business Administration (SBA), and other federal agencies
concerned with employment of people with disabilities should acknowledge the
substantial need for
ADA
training
by employers at all levels and should join forces to create a campaign that
responds to this need.
·
Key federal agencies that are charged with a
role in enforcement of the
ADA
should join in a collaborative effort to fund a substantial nationwide
ADA
training initiative for people with disabilities.
·
The EEOC, DOL, SBA, and other federal agencies
concerned with employment of people with disabilities; business trade and
membership organizations such as regional chambers of commerce and Society for
Human Resource Management (SHRM); and disability organizations should
collaborate on development and dissemination of model policies for establishing
entity-wide funding mechanisms that can be used by divisions, departments, and
cost centers to pay for accommodations.
·
Key federal agencies charged with a role in
enforcement of the
ADA
—for example,
EEOC, DOJ, and the Departments of Health and Human Services (HHS), DOED, and
Housing and Urban Development (HUD)—should establish a center of excellence
either within their agency or through a qualified contractor. Each center’s
mission would be to conduct research and collect information about effective
methods of
ADA
implementation
related to the agency’s sphere of concern, rigorously evaluate those methods to
determine their quantifiable impact on people with disabilities, and report and
widely disseminate results that can serve as models.
·
DOJ should devote substantially more resources
and time to investigation of Title III complaints, especially those regarding
small businesses, in light of widespread noncompliance by these covered
entities.
·
Key federal agencies charged with a role in
enforcement of the ADA, disability organizations, and other leaders and experts
in accessibility should partner with entities such as the
National Association of State Fire Marshals, city departments of health,
mortgage and construction lenders, and associations of city and county
government to identify legislative, regulatory, and other methods to embed ADA
information, incentives, and, where appropriate, penalties, in their
interactions with Title III covered entities.
·
ADA federal enforcement and allied agencies—for
example, the Access Board and the National Institute on Disability and
Rehabilitation Research (NIDRR)—should join forces to commission research
(e.g., focus groups, surveys, interviews) designed to elicit structured
responses from a variety of Title III entities about the extent to which
specific technical assistance and informational materials that are currently
available from DOJ and others provide the ADA implementation guidance they
seek, and, as appropriate, make specific recommendations for content, formats,
and distribution mechanisms that would meet their needs.
·
The FCC should accelerate approval for new relay
technologies and should establish clear guidelines to govern new technologies
at the time they are approved.
·
The FCC must include Internet-based providers
among the categories of companies that must contribute to state and interstate
relay support in order to ensure the viability of relay funding and to
distribute costs fairly among all subscribers of communication services.
Recommendations for Legal Advocates
·
Continue monitoring for litigation abuse, but
also explore strengthening the current system by creating the possibility of
recovering attorney fees for raising reasonable objections to national and
regional class action settlements.
·
Develop ways to link the disability class action
notice that is sent to state and federal officials to the actual notice that is
sent to cross-disability legal groups and to Protection and Advocacy agencies
in all affected states.
·
Educate the judiciary concerning the need for
vigilance on national
ADA
class
action settlements that would allow public accommodations to avoid or water
down ADAAG requirements and broadly bind an overinclusive class of people with
disabilities to a settlement that gives many of them inadequate or no relief.
Recommendation for Collaboration Among Businesses, the
Disability Community, and Professional Organizations and Associations
·
As a condition of ongoing licensing, everyone
involved in design, construction, engineering, landscape architecture,
architecture, and city planning should be required to take universal design
courses that include explanations of the ADAAG and access codes and standards,
and these courses should be offered through continuing education programs.
Sponsorship should be provided by state and national professional organizations
such as the Building Officials and Code Administrators International, Inc.,
known as the International Code Council (ICC), and the American Institute of
Architects (AIA).
Recommendation for Business Organizations and Associations
·
Leading business associations such as the U.S.
Chamber of Commerce and the Council of Better Business Bureaus should endorse
and support a new
ADA
education
project with their members. This would involve notifying members about the
ADA
through mailings, providing information on their respective Web sites and at
conferences and regional and national meetings, and informing them that the
organization has the capacity to distribute
ADA
implementation materials published by DOJ and other federal agencies.
Recommendation for Disability Community Organizations and
Advocates
·
The leaders of local independent living centers
and other disability organizations should seek out leaders in culturally
diverse neighborhoods to hold discussions on
ADA
implementation and to understand the needs of citizens and businesses. The
objective is to inform leaders about the benefits of the
ADA
and build partnerships that provide mutual benefit for the disability and
culturally diverse communities. The goals are for local leaders to demonstrate
that the
ADA
can be implemented in
a meaningful way in their communities, to promote implementation, and to serve
as a model for others.
Introduction
I. Background
This report
on implementation of the 1990 Americans with Disabilities Act (ADA), part of a
research and policy initiative of the National Council on Disability (NCD),
responds to the NCD statutory responsibility to foster effective enforcement
and implementation of the ADA. The report presents the
views and opinions of diverse stakeholders about
ADA implementation challenges and issues, and their recommendations for
improvement. It contains analyses of issues and concerns that have arisen in
recent years concerning ADA litigation—particularly as a tool for implementing
Title III, the provision of the law that applies to public accommodations and
commercial facilities—and the outcomes of judicial focus groups. The report
also presents examples of best ADA practices that illustrate methods some
covered entities are using to implement the law that have demonstrated lasting,
positive, and measurable results for people with disabilities. Finally, the
report offers an analysis of public education about the
ADA and
preliminary strategies for increasing public awareness about the ADA.
In 1984, Congress established NCD as an independent federal
agency and charged it with reviewing federal laws, regulations, programs, and
policies affecting people with disabilities and with making recommendations to
the President, Congress, officials of federal agencies, and other federal
entities regarding ways to better promote equal opportunity, economic
self-sufficiency, independent living, and integration into all aspects of
society for Americans with disabilities.
NCD first proposed a broad civil rights law for people with
disabilities and drafted the initial
ADA
legislation, which was published in the 1988 NCD report entitled On the
Threshold of Independence. In 1995, NCD issued a
report entitled Voices of Freedom:
America
Speaks Out on the
ADA
that presented testimony gathered from individuals with disabilities all across
the country. The report concluded that, although the
ADA
was relatively new and not yet fully implemented, it had begun to bring about
dramatic improvements in the lives of people with disabilities. In 2000, NCD
published Promises to Keep: A Decade of Federal Enforcement of the Americans with Disabilities Act,
which described a variety of weaknesses in the federal enforcement of the
ADA
and presented recommendations to correct
these deficiencies.
Since 2000, NCD has focused on identifying problems or gaps in
ADA
implementation and
understanding factors that either enhance or impede
ADA
implementation. The 2003–2004 NCD initiative, Righting the ADA, analyzed the effects of unfavorable U.S. Supreme
Court interpretations in
ADA
cases
and developed legislative recommendations for restoring the
ADA
to its original intent. As part of the initiative, NCD published a series of
policy briefs analyzing the Supreme Court’s
ADA
decisions, subsequent lower court rulings, and media coverage. In the final
report, entitled Righting the ADA, NCD summarized these analyses and made
recommendations for restoring the rights and protections the
ADA
was intended to provide.
In 2005, NCD undertook an ADA Impact Study that sought to
develop an understanding of the successes the
ADA
has achieved and the problems that remain, from the perspective of diverse
stakeholders. This study, taken together with previous research conducted by
NCD, revealed that much more needs to be done to achieve the full promise of
the
ADA
. People with disabilities
report ongoing problems obtaining accommodations in the workplace and a
reticence among businesses that are open to the public to comply voluntarily
with the law, thus perpetuating the exclusion of customers with disabilities.
Despite widespread dissemination of extensive technical assistance materials
that describe in detail the rights the
ADA
affords and methods for complying, many individuals and covered entities still
do not understand the requirements of the law. Many businesses report that they are unable to determine when they are in
compliance. Some businesses and programs covered by the
ADA
are unfamiliar with the relay service or how to use it, or the need to provide
information in accessible formats to ensure effective communication.
Furthermore, certain litigation issues are thought to have a
negative impact on
ADA
implementation. Some class action cases fail to protect adequately the
interests of the class at large. The defendants in a number of ADA Title III
lawsuits and administrative settlements have not followed through with
agreed-upon accessibility improvements. Moreover, the media have produced
numerous negative reports that perpetuate the perception that certain
individuals and their attorneys are making a career out of suing establishments
for
ADA
violations by filing
ADA
lawsuits over minor accessibility problems.
Against this backdrop, NCD initiated the ADA
Implementation Study to develop a deeper understanding of issues and problems
that impede implementation, and to identify solutions. Activities included the
following:
·
Bringing together diverse
ADA
stakeholders and engaging them in a dialogue that would result in
recommendations on how to improve the implementation of the
ADA
and how to make the goals of the
ADA
a reality for individuals with disabilities.
·
Identifying
ADA
implementation best practices that could serve as models to illustrate how some
entities are achieving effective implementation.
·
Studying the implementation benefits, outcomes,
and challenges that have derived from various
ADA
litigation activities, particularly as they relate to Title III of the
ADA
,
and making recommendations for addressing any identified problems.
·
Evaluating information and outreach methods used
to inform the public about the
ADA
from the viewpoint of diverse stakeholders, and developing strategies for
promoting awareness about the
ADA
,
including the development of a prototype public relations campaign.
II. Purpose and Scope of the
Report
The purpose of this report is to present the outcomes from the
following activities:
A. Stakeholder Dialogues
The report presents the outcomes of 10 stakeholder dialogues
conducted in various locations around the country. Two-hundred eighty-two
individuals with diverse interests and viewpoints participated in these
dialogues, meeting to discuss
ADA
implementation issues and challenges, recommend strategies to improve
implementation, suggest additional needed research, and identify methods to
increase and improve public awareness and public education about the
ADA
.
Stakeholders met in groups that focused on implementation
issues related to the specific subjects of the
ADA
.
Groups composed solely of disability community participants also met to discuss
implementation of the
ADA
as a
whole, with an emphasis on rural implementation issues and concerns, and perspectives
of stakeholders from diverse cultures.
B.
ADA
Best
Practices
Research was conducted to identify
ADA
best practices that illustrate how effective implementation can have a lasting
and measurable impact on individuals with disabilities, and could serve as
models. Practices were sought that relate to the requirements of the law,
educate people about those requirements, or enhance systems, infrastructures,
and technologies that bear directly on practical aspects of implementation (for
example, Internet and computer accessibility) as well as on the spirit of the
ADA
(practices that encompass, for example, universal design principles).
C. Legal Research
The impetus for the legal research component of the report
arose out of concerns brought by various
ADA
stakeholders about specific aspects of litigation under the
ADA
.
One major area of concern is problematic national class action settlements that
are characterized by extremely wide class definitions, an overly broad release
of plaintiff rights (including state law claims), physical accessibility
requirements that fall below the Americans with Disabilities Act Accessibility
Guidelines (ADAAG) standards, and insufficient monitoring. The other major area
of concern focuses on private individual plaintiffs and plaintiff attorneys who
bring successive lawsuits alleging the same or similar accessibility complaints
primarily against small businesses in existing buildings. The businesses tend
to settle for excessive attorney fees and ultimately fail to make the required
accessibility changes. It is important to note that both areas of concern arise
almost exclusively under Title III of the
ADA
,
and both are prompted primarily by concerns about the potential for abuse of
the private right of action available as an enforcement tool under Title III.
The parameters of each area of concern were identified and the
underlying issues analyzed to determine what created the potential for abuse.
Some of these underlying issues are inherent in any private right of action,
which of necessity relies to some extent on the professional integrity of both
plaintiff and defendant attorneys, but fundamental aspects of how Title III
compliance has or has not been achieved and enforced over the past sixteen
years may also raise significant issues. The research in this section looked at
how allegations of abuse and the underlying issues have had an impact within
the disability community and on wider public perceptions of the
ADA
. Finally,
this section includes a brief discussion of potential legal solutions for
dealing with the underlying causes and the potential for abuse.
D. Judicial Focus Groups
The dearth of research into the judiciary’s knowledge of,
experience with, and attitudes concerning litigation brought under the
ADA
prompted us to convene judicial focus groups. Judges play a significant role in
ADA
enforcement and constitute a
key stakeholder group for achieving compliance with the law. While the
attorneys in any particular case bear primary responsibility for bringing
correct law and jurisprudence before the court, the judiciary’s acceptance of
the
ADA
as a broad civil rights law
and its willingness to connect that right to the details of physical
accessibility requirements is critical. As a federal law, the
ADA
is primarily understood to be within the compass of federal courts, but state
judges may also encounter
ADA
claims when they are joined with, for instance, state disability law claims.
This project therefore sought out the opinions of judges concerning not only
ADA
litigation but also
ADA
enforcement, compliance, and overall goals.
E. Public Awareness and Public Education
The report presents the outcomes of a comprehensive assessment
of the state of the art in public information campaigns and analyzes existing
awareness of the
ADA
and the
ADA
“information environment.” A prototype for an
ADA
public relations campaign is presented in Part 3.
III. Report Structure
The report begins with an Executive
Summary, which presents findings and recommendations, followed by this
section, the Introduction, which
provides background, and the purpose, scope, and structure of the report. Part 1 presents key outcomes from
stakeholder dialogues on employment, public and private transportation, public
accommodations, and telecommunications, as well as from dialogues that were
conducted with members of the disability community. These outcomes include key
ADA
issues and concerns that stakeholders identified as well as recommendations for
improving implementation. Part 1 also presents the outcomes of judicial focus
groups conducted with state court judges, topics for further research
identified by stakeholders, and effective
ADA
implementation practices. Part 2 presents a detailed analysis of legal and enforcement tools. Part 3 presents a prototype public
information campaign aimed at increasing small business awareness of Title III
of the
ADA
.
The Conclusion follows Part 3. The report also contains appendices that include the names of
attorneys who participated in discussions related to legal enforcement of the
ADA
,
a list of stakeholder dialogue participants, the judicial focus group
methodology, a sample structured negotiations settlement agreement, a table
listing existing
ADA
public
awareness and information materials, and a summary of
ADA
implementation recommendations for specific audiences.
PART 1. Stakeholder Observations and Effective
ADA
Implementation Practices
Introduction
In the years since its enactment, the extent to which people
with disabilities perceive that the 1990 Americans with Disabilities Act has
been effective in challenging discrimination and eliminating architectural,
communication, and policy barriers reflects the combined impact of federal
enforcement, private litigation, and disability community advocacy and
education.
However, persistent problems in
ADA
implementation remain for people with disabilities. Among these are ongoing
difficulty obtaining accommodations in the workplace and poor voluntary
implementation by small businesses that are open to the public, which has perpetuated
the exclusion of customers with disabilities. Despite widespread dissemination
of extensive technical assistance materials by the U.S. Department of Justice
(DOJ) and others—materials that describe in detail the rights afforded by the
ADA and methods for complying—many individuals and covered entities still do
not understand the requirements of the law.
Against this backdrop, the National Council on Disability
(NCD) initiated an
ADA
implementation study to develop a deeper understanding of implementation issues
and problems, and identify solutions.
Part 1 presents the outcomes of 10 stakeholder dialogues
conducted in various locations around the country. Two-hundred eighty-two
individuals with diverse interests and viewpoints participated in these dialogues.
Stakeholders met in groups that focused on implementation issues related to
specific sections of the
ADA
.
Groups composed solely of disability community participants also met to discuss
implementation of the
ADA
as a
whole, with an emphasis on rural implementation issues and concerns, and
perspectives of stakeholders from diverse cultures. Also presented are the
outcomes of judicial focus groups conducted with state court judges who met to
discuss their awareness of disability rights laws and to identify potential
learning opportunities.
Part 1 also presents outcomes from research to identify
ADA
best practices that illustrate how effective implementation can have a lasting
and measurable impact on individuals with disabilities, and can serve as models.
I. Stakeholder Observations
A. Employment (Title I)
[1]
1. Key Implementation Issues and
Discussion
Stakeholders who participated in discussions related to ADA
Title I implementation acknowledged that issues related to employment of people
with disabilities are complex and can include, for example, the extent to which
employees with disabilities have equal educational opportunities, access to transportation,
health care, appropriate assistive technology, adequate support services such
as personal assistance services, sign language interpreters, volunteer
employment opportunities, and job internships.
Stakeholder observations, insights, and recommendations
reflect various perspectives about how these issues interrelate and their
combined impact on employment opportunities and outcomes for people with
disabilities. These observations also reflect stakeholder perceptions about the
continued prevalence and impact of disability stigma and misinformation, and
the lack of
ADA
information. Their
recommendations identify methods for improving implementation of the
ADA
and for advancing the broader goals of employment, equal opportunity, and
community integration that are the purposes of the law.
Legal Issues
Disability community, advocacy, and attorney stakeholders
pointed to the narrowing of the definition of disability in the courts as a
central ADA Title I implementation problem. They noted that some employers are
applying the restrictive definition of disability when an employee requests an
accommodation; thus, some people are not eligible to request the accommodation
under the law even though they have an impairment that substantially limits a
major life activity. Attorney stakeholders specifically noted that the narrowed
definition limits use of the administrative and judicial remedies available to
people with disabilities who think they have experienced employment
discrimination.
Several employer stakeholders said that the “regarded as”
prong of the
ADA
disability
definition presented some problems from the employer standpoint because it
unfairly protects job seekers. Specifically, their concern centered on the fact
that individuals with past records of certain disabilities, including
psychiatric disabilities and substance abuse, could not be excluded from employment
on the basis of the employer’s past negative experience with an employee who
had one of these disabilities. Others noted that they thought it difficult to
establish that discrimination has taken place when an individual’s employment
status is “at will”—that is, when an employee can be fired with or without
cause—even though employers are barred from terminating an employee on the
basis of protected factors such as race, sex, national origin, or disability.
Several disability community stakeholders observed that, from
their perspective, some employers craft job descriptions specifically to
eliminate people with certain disabilities from consideration and to avoid
potential workers’ compensation liability.
Many employer stakeholders mentioned the overlap and
interrelationship between the
ADA
and the Family Medical Leave Act (FMLA). For example, some reported that it can
be difficult to determine when leave days should be counted as a reasonable
accommodation under the
ADA
or as
leave under FMLA, and they noted that it can be both complex and time-consuming
to determine the correct answer.
Employer stakeholders said they think the EEOC should provide
specific answers concerning their legal liability so they know where they
stand.
Limits of the Diversity Model
Several attorney stakeholders commented that they think the
traditional civil rights model—which embodies the principle of
nondiscrimination based on race, religion, national origin, and sex—does not
adequately embrace the reasonable accommodation model in the workplace. They
stated that they think it is more important to have an overarching policy and
process that helps all employees work efficiently and fit in rather than a
model that requires people with disabilities to identify themselves as having a
disability in order to secure the help and support they need to work and
function effectively. This approach, which is the procedure set forth in the
ADA
to determine whether an individual is entitled to request a reasonable
accommodation, can lead employers to “count” people who do not necessarily have
significant impairments in order to show that the company employs people with
disabilities. They noted that, in their experience, the reasonable
accommodation model does not necessarily lead to hiring people with more
significant disabilities.
Flexible Workplace Culture
Diverse stakeholders discussed the need to envision different
ways work can be accomplished. Some noted that this shift is especially
important because many workplaces blur the traditional eight-hour workday,
tacitly or explicitly requiring that employees be either readily available or
on call. Attorneys and representatives of state and local governments and
organizations that serve people with disabilities discussed the importance of advocating
for and promoting a flexible workplace culture that acknowledges that all
employees have personal and family needs that require a certain amount of
flexibility. Providing methods to accommodate all workers encourages employee
loyalty, employment satisfaction, and higher performance. Some referred to this
flexibility as “naturalizing” accommodation.
Attorney stakeholders mentioned that laws in several states
contain definitions of disability that are more expansive than the definition
found in the ADA, even before judicial decisions restricted who is considered
to have a disability under the statute. They said that in these states a trend
is developing among some employers who are emphasizing meeting an employee’s
accommodation needs first, rather than spending time and effort to determine
whether the person meets the strict definition of disability. Several suggested
that this approach recognizes the value and positive impact of workplace
flexibility, and can and should be a starting place for the creation of
policies that could lead to best practices.
Attitudes and Perceptions
Diverse disability community stakeholders discussed
extensively the prevalence of disability stereotyping and paternalism,
especially when it comes to hiring for entry-level jobs. In particular, people
with psychiatric disabilities, they said, face profound problems gaining entry
to the workforce. Several disability community participants said they thought
some employers think that people with disabilities are “damaged goods” but they
have to hire them anyway.
Many disability community stakeholders mentioned that they
think employers still fear the
ADA
and the potential for the “floodgates effect”; that is, that once they have
accommodated one employee with a disability, other employees will also request
accommodation. They mentioned that smaller employers, in particular, continue
to think that they cannot fire a person with a disability once the person has
been hired.
Several attorneys and people from disability service organizations
mentioned that the culture of an organization can dictate the extent to which
the
ADA
is implemented
successfully. When organizations allow a certain amount of flexibility as a
general rule, accommodating workers with disabilities appears to be easier and
more successful. Organizations that have more rigid cultures—such as law firms,
for example—find it much harder to accommodate employees, especially if the
accommodations require flexible work schedules or time off. They also observed
that they think it is difficult for employers to expend the time and effort
required to identify and acquire appropriate accommodations for people with
disabilities when the workforce as a whole is working longer and harder than in
the past.
Diverse stakeholders engaged in significant discussion about
their perception that some people with disabilities do not have adequate
communication and negotiation skills and, therefore, cannot advocate
successfully for themselves when they require an accommodation or need to find a
different way to do a particular job. Several employers and service providers
stated that they think it is the responsibility of the applicant with a
disability to demonstrate how he or she will fit in with the culture of the
workplace and dispel employer fears about the perceived burden of providing an
accommodation.
Diverse stakeholders discussed their perception that people
with disabilities have poor motivation and expectations related to work. Some
observed that probably the most important reason people with disabilities think
they cannot strive for employment is that they fear they will lose certain
essential government benefits, such as income support, health care coverage,
personal assistance services, and affordable housing. This fear is a powerful disincentive
to employment for people with disabilities, even though the Ticket to Work and
Work Incentives Improvement Act of 1999 and its Ticket to Work Program were
created to address some of these problems. The perceived and real impact of the
loss of these benefits—and the difficulty people encounter when they attempt to
reinstate them when a job ends—represents a survival risk and a central reason
some people with disabilities do not seek employment.
Employer-sponsored health insurance can present significant
cost and coverage concerns for both employers and people with disabilities.
Some insurance plans cap payments for durable medical equipment, which includes
items such as wheelchairs, crutches, braces, and ventilators; in effect, making
coverage for these items unavailable. Mental health services are limited by
most policies, and frequently only prescription drugs that are included on an
approved list are covered by a plan. Several disability community stakeholders
pointed out that under these conditions, many working people with disabilities
do not have access even to partial help to pay for life-sustaining assistive
devices and prescription drugs, while limited mental health services can result
in crises leading to job loss for people with psychiatric disabilities.
Some employers also noted that employer health care premiums
can rise significantly when a covered employee requires expensive care for a
serious injury or illness.
Some employers and service providers suggested that it is
important to recognize the need for a “fit” between the employee and the work
environment. They noted that people with certain disabilities might not be a
match with certain work cultures because of their disability. Some stakeholders
observed that this is a reality of the world of work and should be openly
acknowledged so that employment matches are more likely to succeed. They said
that those involved in job training, placement, and employment advocacy for
people with disabilities should attempt to determine when a match is likely to
be appropriate and when it is likely to fail. Other community stakeholders
suggested that while cultural fit is, indeed, an employment factor for many
workplaces, it should not be used to justify disability-based discrimination.
Various employer and community stakeholders noted that
disability stigma prevents some people from identifying themselves as having a
disability even when they might require an accommodation. Such people fear that
identifying themselves as having a disability will trigger a negative response
from an employer. They are willing to risk performing poorly on the job because
they lack a needed accommodation rather than risk negative retaliation if they
disclose their disability. Older workers who are reentering the workforce are
especially likely to engage in this behavior.
Several advocacy and service provider stakeholders observed
that, from their perspective, some companies that recruit candidates for
certain jobs on behalf of employers simply do not treat an individual with a
disability as a bona fide prospect, regardless of the person’s qualifications.
It appears that these companies often do not pass on the applicant’s résumé or
promote the individual with their clients. Several disability community
participants noted that they thought this practice was fairly common because
employers fundamentally do not want to hire someone with a disability for a
position at the level at which professional recruiters become involved.
Information, Education, and Training
Significant discussion took place about the need to increase
ADA
training at all levels of business and management. Diverse stakeholders
observed that smaller businesses simply do not know how the
ADA
’s
employment provisions apply to them. In larger companies, human resources
personnel (who generally understand the intent of the
ADA
)
require ongoing training to stay up to date, and require information about how
to manage the overlap between
ADA
,
FMLA, and state workers’ compensation programs.
Some advocacy and service provider stakeholders reported that
they had been successful in persuading employers to hire people with
disabilities by combining basic
ADA
education with disability awareness, which they think helps dispel employer
fear and uncertainty, and affords an opportunity to demonstrate that certain
benefits can be derived from hiring individuals with disabilities. Some
community stakeholders said that such nonthreatening intermediaries helped pave
the way by providing an opportunity for prospective employers to express their
fears and concerns, and to obtain information in a safe environment. Others
noted that the need for intermediaries to assist people with disabilities
attain employment demonstrates the extent to which myths and fears about
disability are still prevalent among some employers.
Many diverse stakeholders mentioned that youth with
disabilities are not adequately prepared to enter the workforce. They noted
that preparation goes beyond an adequate formal education to include real-world
opportunities for internships and volunteer positions that will expose young
people to the expectations and practices of the workplace. Youth also require
intensive job preparedness training that includes interviewing and
résumé-preparation skills, knowledge of
ADA
rights and responsibilities, awareness of workplace culture, and methods to
solve practical problems such as transportation and acquisition of assistive
technology. Mentoring opportunities were cited as particularly important for
youth with disabilities, and various stakeholders suggested that more effort is
required to ensure that people with disabilities have opportunities to
participate in job and career mentoring programs.
Similarly, employer and service provider stakeholders noted
that some people with disabilities find it especially difficult to find work
because they are seeking entry-level work, which is in short supply.
Furthermore, people with disabilities who are seeking entry-level jobs find
that it is even more difficult to secure those positions if they require
expensive accommodations.
Others mentioned that while they think it is effective to
demonstrate the consequences when an employer fails to provide an
accommodation, employers also need to perceive a benefit to the operation of
their organization when they comply with the
ADA
.
In addition to the value of a qualified employee joining or remaining in their
workforce, employers need to be informed about practical incentives such as tax
credits and other financial incentives that are available when they hire and
accommodate a worker with a disability. Service providers and community
stakeholders observed that employers are still unaware of the various
incentives available, or think that the process of taking advantage of the
incentive is too time-consuming and complex.
Another theme that emerged from stakeholder discussions is the
importance of conveying the message to employers that people with disabilities
can fill jobs when there are labor shortages. This point was made by diverse
stakeholders who think that people with disabilities represent an untapped
labor pool and that employers should be educated about this underutilized
resource.
Accommodation Issues
Much discussion focused on the perception of some disability
community and service providers that some employers continue to deny
accommodations because the cost is not covered in their departmental or
cost-center budget allocation, suggesting that the company or entity as a whole
does not provide funds for accommodation that are available organization-wide.
Some larger public and private employer stakeholders noted that their
organizations have established entity-wide accommodation funds, which help
departmental supervisors provide needed accommodations while relieving their
concern about budget shortfalls that could be caused in part by the cost of an
accommodation. Most stakeholders acknowledged that this approach calls for
significant upper echelon commitment and leadership; however, when implemented,
it can be the most effective method to address funding concerns for many medium
to large businesses and other entities.
Employer stakeholders mentioned that they thought one of the
more difficult accommodation problems they face concerns employees with
disabilities who are frequently absent from work. While certain employees are
permitted to use paid leave as an accommodation, their absence from the
workplace sometimes creates problems for other employees and can impede
production. These stakeholders observed and discussed the conflict between their
ADA
obligations and their desire to
help a valued worker, and the need to accomplish specific tasks in a timely
manner.
Service providers and disability community stakeholders noted
that some employers agree to provide certain accommodations, such as sign
language interpreters, but fail to follow through. This failure puts deaf and
hard-of-hearing employees at a significant disadvantage when they need to
participate in meetings or other job-related activities, where effective
communication is essential and the inability to participate fully threatens
their job performance.
Various employer stakeholders expressed concern about the time
it takes to determine which accommodation might be effective for an employee
with a disability and the effort required to acquire the accommodation and
arrange for payment. From the perspective of these stakeholders, this
expenditure of their time represents a nonreimbursable cost and, therefore,
lost revenue.
Several community stakeholders mentioned some creative ways in
which revenue is being generated by local governments to pay for
accommodations. In one example, parking fines levied when a driver parks
illegally in a space designated for drivers with disabilities go into an
accommodation pool that departments of city government can draw from.
Various service providers and community stakeholders discussed
specific employment concerns related to people with some psychiatric
disabilities. Some said they think it is very difficult for people with
psychiatric disabilities to find work if they disclose their disability in
order to request an accommodation. Others noted that accommodating people with
such disabilities in the workplace can sometimes present significant
challenges. Several people mentioned that employees who acquire physical
disabilities while on the job can be reassigned relatively easily to other jobs
upon their return to work, especially if they work for a large entity. On the
other hand, they observed that there appears to be significantly less such
flexibility when people who experience a mental disability while on the job
attempt to return to work.
Lack of Collaboration
From the viewpoint of various diverse stakeholders, state and
federal agencies do not collaborate effectively to promote employment of people
with disabilities. Similarly, many stakeholders observed that they think there
are many opportunities for collaboration among nonprofit organizations, state
and local governments, and representatives from the private sector, yet
insufficient collaboration takes place. Furthermore, when models of
collaboration are developed, they are difficult to sustain, according to some.
In particular, service provider and community stakeholders
noted that there appears to be little or no collaboration and model project
development among local, state, and Federal Government agencies and departments
concerned with employment of people with disabilities, organizations of people
with disabilities, and Internet job boards such as Monster, HotJobs, and others
of similar size and scope. Many stakeholders think that significant potential
exists to increase employer awareness about the
ADA
as well as to broaden employment opportunities for people with disabilities
through creative collaborations with these entities.
Several employer stakeholders observed that in larger
organizations communication between human resources and legal departments tends
to be minimal. Others observed that communication among human resources, line
supervisors, and upper level supervisors and directors can also be weak. While
human resources staff likely will be aware of the key requirements of the
ADA
as it relates to employees within their organization, the details of the
ADA
often do not necessarily reach managers and others who direct hiring, firing, and
other decisions concerning employee benefits, accommodations, work assignments,
and workplace flexibility.
2. Key Stakeholder Recommendations
Implementation Issue: The
U.S.
Supreme Court has narrowed the definition of disability, thus barring many people
with disabilities from being eligible to use the
ADA
when they encounter employment discrimination.
Recommendation: Congress
should enact legislation that reverses the Supreme Court decisions narrowing
the definition of disability so individuals with disabilities who were intended
to be covered by the law are again eligible to use it to challenge
discrimination.
Implementation Issue: Finding ways to use the
principle of job accommodation as a method to promote the concept of a flexible
workplace.
Diverse stakeholders observed that a more flexible workplace
brings people with disabilities to the center of the discussion in which the
workplace needs of all employees are taken into
account. Because of the increased demands on most workers and the blurring of the lines that have traditionally defined work, workplace flexibility is
gaining attention and currency. The
ADA
establishes the principle of reasonable accommodation, which can serve as both
a guide and the moral authority for developing methods to support the needs of
workers with and without disabilities. Stakeholders also observed a
relationship between workplace flexibility and principles of universal design,
which encourages the creation of systems that foster ease of participation by
as many people as possible, thus strengthening the case for work environments
that meet the needs of many. The following recommendations derive from an
extensive discussion among diverse stakeholders about the benefits of
flexibility to workers with disabilities and others.
Recommendation: Accreditation
bodies such as the Association to Advance Collegiate Schools of Business should
require as a condition for accreditation of management and business programs, course
content or courses that explore the principle of workplace flexibility—and the
reason such flexibility is beneficial to employers and employees alike—and that
introduce the concept of reasonable accommodation for people with disabilities
as a template for workplace flexibility.
Recommendation: Workplace Flexibility 2010—an initiative of Georgetown University Law Center
that supports the development of a comprehensive national policy on workplace
flexibility at the federal, state, and local levels—should increase attention
to the concerns facing workers with disabilities.
One goal of the initiative is to identify ways in which the
workplace can be restructured to meet the needs of an increasingly diverse
workforce. While the campaign recognizes that the reasonable accommodation
provisions of the
ADA
establish methods
for workplace flexibility and that issues of concern to people with
disabilities must be included in the dialogue, the initiative thus far has
emphasized the changing needs of families and older workers. At this critical
juncture, as the initiative gathers momentum, it is critical that issues of
concern to people with disabilities be fully included. The initiative holds the
potential to integrate job accommodations in the workplace as an accepted and
routine practice and also to demonstrate that such flexibility can benefit all
workers and employers.
Implementation Issue: People with disabilities
do not know their rights under the
ADA
and, therefore, cannot advocate successfully for these rights in all aspects of
the employment process.
Various stakeholders observed that job seekers with
disabilities require training and orientation on topics such as job
preparedness, interviewing skills development, résumé preparation, and tools
for conducting prospective employer research. They also noted that in addition
to these more traditional areas of training, it is equally important for job
seekers and employees with disabilities alike to be aware of and understand
their employment rights under the
ADA
so they can advocate successfully for themselves during the job search process
and in the workplace. The following recommendations respond to this identified
need.
Recommendation: The
Equal Employment Opportunity Commission (EEOC) should develop partnerships with
public agencies such as
Employment Development Departments
,
U.S.
Department of Labor
(DOL) One-Stop Career Centers, state departments of rehabilitation, and
national, state, and local disability organizations to develop training modules
and deliver targeted training to job seekers and employees with disabilities.
Modules should be developed that recognize and respond to the specific and
unique needs of subgroups of people with disabilities, such as youth, workers
seeking entry-level employment, reentering workers, older workers, and
individuals who are changing careers. Training should enable people with
disabilities to understand their
ADA
employment rights and should promote skills and methods whereby they can use
this information to advocate for themselves successfully during all aspects of
the job search, as well as in the workplace. Training should be offered as an
ongoing service of the collaborating agencies and organizations.
Recommendation: The
Office of Disability Employment Policy (ODEP) of DOL should collaborate with
leaders in the field of mentoring—such as the National Mentoring Partnership
and Netmentors—to identify methods to ensure that youth with disabilities are
fully included and accommodated in all mentoring programs and that mentoring
program staff receive appropriate ADA training and information to ensure that
they have the capacity to meet the needs of youth with disabilities.
[2]
Implementation Issue: There is a lack of
ongoing
ADA
training and education,
and disability awareness, for employers at all levels.
From the perspective of diverse stakeholders, the greatest
needs related to ADA Title I implementation are ongoing, targeted training for
employers on all aspects of Title I of the ADA, as well as disability awareness
for employers at all levels. The stakeholders acknowledged the efforts by
federal, state, and local government and by business volunteers to improve
employment opportunities for people with disabilities, but think that these
efforts have fallen short by not including ongoing
ADA
training for employers.
Specifically, various stakeholders said that business
associations and membership organizations must become involved in ongoing
ADA
training and education because employers, especially business owners, prefer to
obtain information from organizations that they perceive represent their
interests. The stakeholders also suggested that the Federal Government should
step up its efforts to create and disseminate training materials aimed at
specific industries and businesses, and strengthen relationships with business
leaders to foster commitments that ensure that training is ongoing and embedded
in their respective operations. Likewise, the Federal Government should step up
its efforts to provide technical assistance to employers using the highly
effective Job Accommodation Network as a model.
Stakeholders identified specific ideas and methods for
creating training opportunities and delivering training; these are presented in
the following recommendations.
Recommendation: The
EEOC, DOL, Small Business Administration (SBA), and other federal agencies
concerned with employment of people with disabilities should acknowledge the
substantial need for
ADA
training
by employers at all levels and should join forces to create a campaign that
responds to this need. Such an initiative must have adequate financial
resources and the commitment of key federal agency, business, and industry
leaders, associations, and trade unions. The goal would be to foster commitment
to systematic, nationwide, annual
ADA
and disability awareness training for boards of directors, management and human
resources staff, union stewards and representatives, and others involved in the
hiring and retention of workers. The initiative could be launched in concert
with an existing public awareness campaign focused on promoting workplace
diversity that includes employees with disabilities.
The initiative should develop training modules
that
·
are targeted to specific industries (for
example, health care, hospitality, manufacturing);
·
contain a complete package of substantive
ADA
information and materials, handouts, and multimedia resources;
·
contain materials and recommendations for
presenting updates throughout the year that can be delivered by e-mail, Web
site referral, and newsletters, and that can be integrated with other ongoing
training provided by the employer or union;
·
are easily obtained from a Web site; and
·
are available in alternative formats.
Recommendation: The
U.S. Chamber of Commerce, state and local chambers, fraternal organizations
such as Rotary International and Lions Clubs, and national trade and membership
associations such as the Society for Human Resource Management (SHRM) should
proactively disseminate information to their members and partners about the ADA
and employment generally, and specifically should announce, promote, and
disseminate training modules developed in response to the annual ADA training
initiative previously discussed.
Recommendation: Trade union leaders should proactively
disseminate information to representatives and
stewards about the
ADA
and
employment generally, and specifically should announce, promote, and
disseminate training modules developed in response to the annual
ADA
training initiative previously discussed. Unions should be encouraged to
promote training at worksites where they represent workers in order to build
capacity to solve problems and prevent them from escalating.
Recommendation: The
U.S. Chamber of Commerce, regional and local chambers, and national trade and
membership associations such as SHRM should proactively include people with
disabilities as members of the diversity community in all informational and
promotional materials, including podcasts, listservs, and other relevant online
discussions of topics with broad interest to the business community.
Recommendation: The
SBA should establish partnerships with disability organizations and
institutions of higher education to develop and add an ADA Title I training
course to its roster of free online courses for small businesses. The SBA
should sponsor local and regional ADA Title I trainings as an ongoing element
of its national training seminars for small businesses.
Recommendation: The
SBA should identify methods to ensure that participants in the SCORE
project—retired executives who advise small businesses—possess adequate
knowledge of the employment provisions of the ADA and incorporate this
knowledge and information when they consult with small business owners and
executives.
Recommendation: Accreditation bodies such as the Association to Advance Collegiate Schools of
Business should require as a condition for accreditation that a disability
curriculum module be incorporated in professional training programs related to
business administration, leadership, and management. The module should contain
elements on the requirements of Title I of the
ADA
,
disability awareness, and the inclusion of people with disabilities in
discussions of workplace diversity.
Recommendation: ODEP should identify methods to promote the message that people with
disabilities represent a significant pool of available labor that can be drawn
upon to fill jobs when there are labor shortages.
Recommendation: ODEP
should consider new ways to expand advertising and promotion of the services of
the Job Accommodation Network (JAN) and to educate employers about the
availability of the service. ODEP also should ensure that funding for JAN meets
the demand for its services.
Recommendation: The
Government Accountability Office (GAO) should update its 2002 tax credit study
(which was based on 1999 business tax returns) to determine whether businesses
have increased their use of the tax credits and other incentives related to
hiring individuals with disabilities. On the basis of the study results, the
Internal Revenue Service (IRS)—in consultation with relevant federal agencies,
businesses, and disability community representatives—should make
recommendations to NCD and Congress for changes in the tax credit system, which
could include increasing the credits as an incentive to improve employment
opportunities for people with disabilities.
Recommendation: The
IRS and other federal agencies concerned with implementation of the
ADA
should launch an educational campaign that informs businesses about the
financial incentives and tax credits associated with hiring individuals with
disabilities. This information should be widely disseminated in tax filing
information and through other channels to small and large business networks,
the U.S. Chamber of Commerce, local and regional chambers, online sources,
unions, and disability organizations.
Recommendation: The
National Conference of State Legislators should work with national disability
organizations and employers to develop and adopt a position that urges members
to propose state legislation that would require anyone who either receives a
promotion or accepts a job requiring supervision of others to undergo mandatory
training on the ADA, just as certain states currently require such training on
sexual harassment.
[3]
Recommendation: When
businesses apply for a new license, or renewal of an existing business license,
they should receive basic information about the
ADA
and where to obtain additional information.
Recommendation: The
EEOC should step up its efforts to ensure that business partners in the Youth
at Work program proactively identify, reach out to, and include youth with
disabilities in all their activities.
Implementation Issue: Providing job
accommodations is not perceived as a standard and ordinary cost of doing
business.
Stakeholders discussed the need for employers to perceive that
providing reasonable accommodations for applicants and employees with
disabilities is a standard and ordinary cost of doing business. Decisions about
whether an accommodation will be provided should not rest with a departmental-level
manager who is concerned about cost overruns. Rather, businesses should adopt
an accommodation policy that sets forth the steps required to request an
accommodation and establish an entity-wide fund that can be used to pay for
accommodations and related costs. Title II entity representatives also
suggested methods to generate funds for accommodation. The following
recommendations summarize these suggestions.
Recommendation: The
EEOC, DOL, SBA, and other federal agencies concerned with employment of people
with disabilities; business trade and membership organizations such as regional
chambers of commerce and SHRM; and disability organizations should collaborate
to develop and disseminate model policies for establishing entity-wide funding
mechanisms that can be used by divisions, departments, and cost centers to pay
for accommodations. These models should include provisions for compensating
managers for the time they spend identifying and acquiring accommodations, so
that time allocations for these tasks can be calculated accurately and factored
into long-range financial planning. These models should promote the principle
that providing accommodations is a standard and ordinary cost of doing
business.
Recommendation: Cities and counties should consider placing into an accommodation pool the funds
from fines collected when people park illegally in spaces designated for
drivers with disabilities.
·
Collaboration
Stakeholders discussed methods to broaden employment
opportunities for people with disabilities through creative collaboration with
Internet job boards such as Monster and HotJobs. At least one large Internet
board already includes disability in its diversity and inclusion postings,
message boards, and resource listings, and several representatives from the
disability community serve as advisors. While these steps acknowledge that the
board recognizes that people with disabilities are bona fide members of the
diversity community, stakeholders think that the resources and information
available to both employers and job seekers should be strengthened and
expanded. The following recommendation presents suggested methods to accomplish
this goal.
Recommendation: The EEOC, SBA, DOL, IRS, Social Security Administration (SSA), and other
federal agencies concerned with enforcement of the ADA and employment of people
with disabilities should collaborate with large Internet job boards such as
Monster, HotJobs, and others of similar size and scope to determine methods to
increase awareness of the ADA by employers and methods to encourage increased
outreach to and hiring of people with disabilities. Areas for collaboration
could include the following:
·
Development of an online column featuring information of interest to employers and job
seekers alike (e.g., examples of effective accommodation, hiring and tax
incentives, Ticket to Work).
·
Adding informational resources for employers and
job seekers alike, such as the Job Accommodation Network, location and function
of the
One-Stop
Career
Centers
, and Frequently Asked Questions
(FAQs) about
ADA
rights and
responsibilities.
Recommendation: EEOC, DOL, and other federal agencies concerned with implementation of the
ADA
and employment of people with disabilities should foster methods whereby
employers such as those who participate in business leadership networks and
organizations such as SHRM and the National Association of Workforce Boards
(NAWB) can engage in peer-to-peer discussions about
ADA
implementation. The goal is for business leaders themselves to demonstrate that
the
ADA
can be implemented in a
meaningful way and to illustrate by example the beneficial outcomes of
implementation, which will serve as a model for others.
Recommendation: EEOC,
DOL, and other relevant federal agencies concerned with employment of people
with disabilities should explore the feasibility of establishing a national
alternative dispute resolution program, possibly in connection with existing
private mediation services, which would help employers and people with
disabilities resolve workplace disputes related to
ADA
rights and responsibilities. Financing could be secured from a combination of
public funding and private subscription fees from businesses.
·
Health
Insurance
While stakeholders recognized that recommendations for
systemic health care reform are beyond the scope of this report, they thought
that certain steps should be taken, nevertheless, that will raise awareness
about some specific concerns of people with disabilities who rely on
employer-sponsored health insurance and that hold some potential for future
reform. Such individuals increasingly face the possibility of leaving paid
employment in order to become eligible for public health insurance that will
pay for necessities that are becoming less available under private policies,
such as motorized wheelchairs and ventilators, mental health services, and
prescription drugs. The following recommendations identify specific steps.
Recommendation: The
federal agencies charged with improving employment opportunities for people
with disabilities should convene a working group of agency leaders, disability
leaders, insurance company representatives, and others to develop strategies to
address the impact on working people with disabilities of decreasing benefits
from employer-sponsored health care insurance. Subjects for discussion should
include the increasing prevalence of benefit caps on durable medical equipment
and restrictions on mental health services and prescription drugs.
Recommendation: Disability advocacy groups should
educate state legislators about the impact on working people with disabilities
of private health insurance coverage limitations, and advocate for legal and
policy reforms at the state level that prohibit coverage caps for durable
medical equipment and other necessary services.
3. Topics for Further Research
Various stakeholders pointed out that the lack of data on
accommodation requests, outcomes, employee satisfaction, and long-term
retention makes it difficult to evaluate the extent to which midsized and large
employers are successfully implementing the accommodation provisions of the
ADA
.
The reasonable accommodation practices of various large
employers (for example, the
University
of
California
,
San
Francisco
; Alaska Airlines; State of
Maryland
)
are profiled in books, articles, and reports. Yet, upon closer scrutiny, few of
these employers collect sufficient information to evaluate whether their
policies have produced measurable outcomes. In some cases, stakeholders pointed
out, the data that exist conflate
ADA
accommodations with return to work measures called for under a workers’
compensation agreement, thus further obscuring the impact of
ADA
implementation. Such data are critical because they serve as indicators that an
entity is engaging in an activity that could be promoted as a best practice.
Both employer and community stakeholders noted that leaders in
the field of education have established centers of excellence—sometimes called
communities of practice—as a strategy to collect and evaluate information about
effective educational practices that might have the potential to become best
practices, and to provide technical assistance to educational professionals and
researchers. Such centers are being used to evaluate numerous approaches to the
delivery of educational programming and the respective outcomes related to
their stated objectives. Using this example as a guide, the following
recommendation calls for establishing centers of excellence devoted to
effective
ADA
implementation.
Recommendation: Key
federal agencies charged with a role in enforcement of the ADA (for example,
EEOC and the Departments of Justice, Health and Human Services, and Education) should
establish a center of excellence either within the agency or through a
qualified contractor. Each center’s mission would be to conduct research and
collect information about effective methods of
ADA
implementation related to the agency’s sphere of concern, rigorously evaluate
those methods to determine their quantifiable impact on people with
disabilities, and report and widely disseminate results that will serve as
models.
Specifically, the centers established to evaluate Title I
implementation practices should build collaborative relationships with
businesses, which could include providing technical assistance and other
incentives to help them develop methods to collect relevant data, for example,
on the effectiveness of procedures for requesting job accommodations, the
number and type of requests, and outcomes.
B. Public and Private
Transportation (Title II and III)
[4]
1. Key Implementation Issues and
Discussion
Insufficient Resources for Implementation and Enforcement
The lack of sufficient resources for
ADA
enforcement in the area of transportation concerns advocates and Department of
Transportation (DOT) personnel. One staffer pointed out that the Federal
Transit Administration (FTA) receives four times as many disability complaints
as any other type of complaint. The situation with the
ADA
was compared to enforcement of the Air Carrier Access Act (ACAA), which, over a
period of time, came to be funded at a sharply higher level. Increased funding
has had a very real and positive impact on ACAA enforcement.
Paralleling DOT’s comments on insufficient resources, some
transit agencies mentioned lack of funding and resources available for
ADA
implementation.
A novel approach to monitoring compliance was raised by the
ADA
coordinator of a nationwide transportation company, who pointed out that his
company’s brochure about accessible services and the rights of riders with
disabilities is available in poster form, and it is company policy to display
the poster prominently at every station the company has nationwide. The
brochure and poster provide customers with the contact number and mailing
address for the ADA Compliance Department and advise customers with
disabilities to contact the Department if they believe their rights have been
violated. The
ADA
coordinator said
this is how he harnesses the power of riders with disabilities to be his eyes
and ears across the country where he cannot go on his own; he was proud of this
system, which alerts him to problematic drivers, staff, and other compliance
issues. The same company has a disability advisory committee that includes
riders who have made complaints. No other transportation providers represented
at the dialogue could cite a similar effort to identify their own organization’s
areas of noncompliance.
One group suggested that to increase provider knowledge,
information accompanying the licensing of a vehicle should explain the
ADA
requirements for that vehicle type, whether it is an over-the-road bus, a van
with a particular passenger load, or any other vehicle. Another group suggested
publications and training for undercover rider programs to link such programs
and share information about them.
Oversized Wheelchairs and Other Mobility Equipment
What transit agencies call “oversized wheelchairs” are a major
concern. One group reported that very heavy mobility devices are a real issue,
because lifts are not strong enough to withstand the weight of these devices.
Another transit provider pointed out that chairs with fiberglass shells do not
allow for securement, and that scooters require a lot of space. A government
regulator noted that the so-called “wheelchair envelope” in the Access Board
vehicle rule has been used improperly; it was intended to describe a
performance standard for vehicle manufacture, not to screen out particular
users of wheelchairs. Another government staffer said, “You need to be the
weight of a car to really break a lift, even though a lot of users are told, ‘You’re
too heavy; you broke the lift.’”
Information, Education, and Training
The systemic organizational challenge of training staff on
ADA
requirements and good customer service was a hot topic. Stakeholders agreed
that to achieve compliance, it is necessary for disability access to be
integrated into all the components of large transit organizations. All
personnel should consider access, not just staff assigned to
disability-specific issues. One transit agency staffer commented that when a
paratransit-related taxi program exists, the agency may thoroughly train its
paratransit drivers, but taxi drivers remain untrained.
Participants shared a number of strategies to improve
training. One group recommended involving people with disabilities more in the
training of drivers. Dialogue participants felt it was necessary to train
boards of directors, managers, and policymakers in their legal responsibilities
under the
ADA
. One transportation
provider shared his company’s efforts to achieve high training standards. All
his company’s staff, including management, receive an eight-hour sensitivity
training, both in the classroom and in hands-on in-service training that
includes testing. Training topics cover
ADA
requirements, good customer service, assisting customers with disabilities,
using lifts, and maintaining accessible equipment. The training program
includes computer-based continuing education for some staff and has received
union support, which adds to its strength and effectiveness.
Another group recommended training on
ADA
transportation rights and requirements at the onset of vocational
rehabilitation and in educational programs in which youth with disabilities
participate. It was recommended that DOT work with the Department of Education
(DOED) to make this training a part of the transition process from school to
work for youth with disabilities.
Fixed-Route Bus Service Issues
Several participants pointed out that stop announcements
remain a challenge. Some participants focused on the benefits of automatic
annunciators, but one transit agency reported achieving great success with stop
announcements without the use of this technology.
Effectively securing mobility devices in vehicles—including the
difficulty of securing certain mobility devices and, in some locations, uneven
driver performance in proper securement—is another significant challenge. One
provider began a lively discussion by declaring that scooters cannot be secured
and the
ADA
regulation that
requires that they be secured could be challenged legally as arbitrary and
capricious. A government technical assistance expert explained that scooters
could, in fact, be properly secured. One advocate lamented what he called “the
human side—getting 2,000 bus drivers in [his city] to follow the securement
rules.” He reported conducting a study on securement by drivers that resulted
in a highly disappointing 95 percent failure rate. One recommended strategy to
address this problem is the wide replication of programs begun by some transit
agencies that equip the wheelchairs of volunteer riders with securement straps
and markers showing proper securement points. One group reported that the
ANSI/RESNA WC-19 standard for four-point securements be promoted more
aggressively to device manufacturers.
ADA
Paratransit Issues
Much discussion centered on
ADA
paratransit. One general concern of transit agencies was expressed in several
different ways: Some called it the high cost of paratransit, and others viewed
it as too much paratransit demand by people with disabilities who, it was
suggested, could possibly use fixed-route transit instead. Participants
suggested a number of strategies to address this issue. One speaker mentioned
offering free rides on the fixed-route service for people who are
paratransit-eligible. He pointed out that many systems now allow self-selection
on a given day, and he chastised systems that do not trust riders but instead “worry
about a $2 loss and lose a $20 gain.” An advocate explained the Miami-Dade
system’s “frequent transit user” program, which provides benefits such as free
entry into the museums, the aquarium, and other local destinations. A transit
provider pointed out that her system awards prizes such as tickets and dinner
passes for customers with disabilities if they switch from the paratransit
system to the fixed-route system. Other transit agencies offered examples of
service models that provide cost efficiencies. For example,
Chicago
has a taxi voucher system on which paratransit riders can take subscription
trips. This public/private partnership results in a lower cost than providing
paratransit without the voucher system. One transit agency representative
pointed out that his system guarantees next-day service but accommodates
same-day service whenever possible; this system also uses accessible taxis,
which goes beyond the
ADA
’s
mandated minimums. Another participant mentioned that a Los Angeles consultant’s
study revealed what was perhaps an unexpected result: that a mixture of
same-day and next-day paratransit service, with at least 10 percent same-day
service, resulted in a lower total cost than 100 percent next-day service.
Discussion also focused on paratransit eligibility. One
transit agency representative expressed the challenge of in-person eligibility
assessments. Advocates viewed the increasing strictness of eligibility
assessments as a challenge and commented that riders may be inadvertently
discouraged from trying the fixed-route system for fear of losing paratransit
eligibility.
On-time performance in ADA sparatransit is a very real implementation challenge in many locales. Issues
include consideration of desired arrival or appointment times; protecting the
pick-up time negotiated between the agency and the rider; and establishing
limits on trip length. One government participant lamented that the ADA
regulation was never intended to allow a paratransit provider to respond to a
rider wanting a ride at 1:30 p.m. by providing a ride at 2:15 p.m. DOT’s
intention was to require a genuine negotiation with a one-hour deviation as the
maximum allowable time gap, but this ceiling has become a widespread de facto
practice.
Some
ADA
paratransit providers discussed what one termed “unreasonable requests”—for
example, to transport someone in a coma, or to provide personal care. Another
cited “demanding, aggressive customers who don’t understand the limitations of
the transit provider.”
There was a lively discussion of the origin-to-destination
service issue. Many transit agencies have based their paratransit systems on
what they view as a choice given to them in the DOT ADA regulation to establish
either door-to-door service or curb-to-curb service, but recent DOT policy
guidance clarifies the ADA requirement that even agencies with curb-to-curb
policies are sometimes required to provide additional service if necessitated
by an individual’s particular disability. DOT has proposed to add to its
ADA
regulation a requirement for reasonable modification of policies, practices, and
procedures when necessary to avoid discrimination, in the wake of a Fifth
Circuit Court decision stating that the DOJ regulation under Title II of the
ADA
does not cover public transit agencies.
[5]
Several transit
agency representatives felt that DOT has not provided adequate guidance on what
the new policy would require of their agencies. For example, when would it be
legitimate to make a finding of undue financial and administrative burdens,
fundamental alteration, or direct threat? Some were concerned about the
documentation requirement for such findings. Others felt that they provided
such accommodations already but were not sure if a requirement to do so would
impose additional burdens.
One advocate presented a concern with the lack of
ADA
paratransit subscription service in some communities, which makes regular trips
to work or school difficult. A transit agency representative pointed out that
many
ADA
paratransit providers are
not aware that they are allowed to exceed the DOT regulation limit of 50 percent
of capacity to be dedicated to subscription service if there are no denials or
other capacity constraints on the service. If properly understood, this
exception to capacity regulations could result in more subscription service in
many locations.
A number of comments at the dialogue centered on the goal of
attaining equity in wages and benefits between fixed-route and paratransit
operators (drivers), an idea that has been discussed increasingly in transit
circles because of its potential to benefit ADA paratransit implementation by
reducing driver turnover and increasing driver competence. Many transit
agencies appear to be implementing measures that lessen the discrepancies in
experience and training between the two groups of drivers. For example, one transit
agency representative reported that his fixed-route operators work at least two
hours with
ADA
paratransit during
their training. Another discussed the benefits his system has realized by
having fixed-route drivers go through what he called “the paratransit
experience,” because it gives them a closer familiarity with securement
procedures and tie-down devices, and makes working with people with
disabilities a routine and acceptable part of the job. He said he could see a
clear educational benefit to drivers as a result of having some paratransit
experience—he called it an opportunity “to mold their minds” on disability
access issues.
Several transit agency representatives discussed how
paratransit is viewed, in the words of one participant, as a “second-class
offspring” in their organizations and addressed the challenge of keeping
paratransit from being marginalized. Ensuring that
paratransit managers attain equity in pay, benefits, and status within their
organization is a related challenge. Some transit agencies discussed their
successes in resolving this problem, such as upgrading paratransit within a
transit agency. For example, if bus and rail divisions are managed at the vice
president level, the paratransit division should also be managed at that level.
Pay equity among these managers was an important strategy for improving the
skill level of ADA paratransit managers, seen as key to providing quality
service. One transit agency representative reported success in elevating
accessibility issues at the management level.
Contracting for Paratransit Services
Methods and approaches in paratransit contracting are a
much-discussed topic among
ADA
paratransit providers. Participants seemed to agree that many
ADA
paratransit implementation challenges stem from difficulties in contractor
management, monitoring, and quality. It was pointed out that some transit
agencies monitor their fixed-route service much more actively than they monitor
their paratransit service. One provider stated that there are an inadequate
number of qualified paratransit contractors. He felt that while it is easy to
state the need to hold the contractor’s feet to the fire, if other qualified
contractors are unavailable, the agency is without options. Regarding
strategies, one provider pointed out that most transit agencies use a low-bid
process but should use a value-based analysis of the bids they receive. He said
they should analyze what would be provided for a particular amount of money and
possibly accept a higher and more qualified bid. Another provider mentioned
providing bonuses to contractors who meet and exceed expectations.
One provider discussed a number of approaches his agency has
developed in the contracting process. For example, the agency awards the
contract based on best value, not lowest cost, by looking at factors such as
better driver wages, better staff benefits, and better employee training. Also,
the contract is structured to minimize risk for the contractor by paying a
monthly fixed cost and a monthly variable rate based on the number of revenue
hours the contractor operates. The fixed cost includes utilities, the lease
cost of the building, and salaries of key management staff. The contractor can
count on receiving the fixed-cost amount and is less apt to pad the charges.
The contractor must document every item in the variable rate, which includes
charges related to paratransit operations. The agency charges the contractor
liquidated damages in particular categories for events such as “no driver
available,” “no vehicle available,” “late to the first pick-up of the run,” “failure
in timely preventive maintenance,” “no field supervision,” and “vehicle
replacement.” The agency requires that a malfunctioning vehicle be replaced
within one hour, or it charges liquidated damages. This works because the
agency does its own dispatching. The vehicles have automatic vehicle locators
(AVLs) and mobile data terminals (MDTs), so the agency can track its vehicles.
Rail Issues
In the area of rail transit, a number of participants mentioned
DOT’s current proposal to require high-level boarding platforms for commuter
and intercity rail systems. Providers and government regulators alike regarded
level boarding as a challenge.
Access to rail stations was discussed as an important issue in
rail transit. One transit agency representative noted the challenge he faces in
providing access to 44 light rail stations. One nationwide transportation
provider lamented the challenge of an upcoming deadline by which it must
provide access to its many stations across the country. A government official
responded by pointing out that this provider waited too many years to begin
addressing this requirement, adding that it would have been easier with
thorough planning and gradual implementation from the time the requirement was
established in 1990. One advocate discussed how even ADA-compliant rail systems
could still be virtually inaccessible to people with disabilities, because the
law requires only key stations to be accessible.
Ensuring that the gap between the
train car and the platform does not exceed ADA specifications was mentioned as a challenge by several participants. One
suggested strategy is a “gap filler”—a rubber strip just under the door. This
two-inch gasket has helped at least one transit agency perform more
consistently within
ADA
specifications.
Elevator maintenance and the provision of information on
elevator outages are other issues of concern to rail providers and advocates.
In general, information on elevator outages should be communicated in a widely
accessible manner. Examples include a centralized phone system to report
out-of-service elevators, signage at each station to provide information on
elevator service throughout the system, and systemwide announcements made over
a public address system when an elevator goes into or out of service. One
transit agency has a system to send an e-mail to a list of interested riders if
a particular elevator is out of service.
One participant discussed a number of rail issues for people
who are deaf or hard of hearing, including visual announcements to complement
audible announcements. He suggested that DOT and the Access Board consider the
issue of visual announcements on both the rail platform and the train.
Private Companies Using Over-the-Road Buses
Several participants mentioned the problem of new companies
providing curbside over-the-road intercity bus service but ignoring the
ADA
requirements. One government official mentioned that the Federal Motor Carrier
Safety Administration of DOT is not yet very familiar with this challenge,
although it is the logical agency to address it. The representative from the
private bus company trade association explained that there are 4,000 companies
in the
United States
using over-the-road buses. He said that it is easy to become a licensed
company, yet there is no oversight of operations once a license has been
granted. Many of these companies are not aware of their
ADA
obligations. For example, charter bus companies often say, “We don’t have an
accessible bus, and we don’t know anyone who does.”
Rural Issues
The need for better transportation for people with
disabilities in rural areas was also a theme at this dialogue. There are few
transportation services in most small towns and rural areas, which adversely affects
a significant percentage of people with disabilities in the
United
States
. Rural advocates discussed the
challenges they face in bringing more transportation to rural areas. For
example, some advocates regard the proposed FTA rules for the New Freedom
Initiative, which could provide rural transportation, as inflexible because
they would preclude voucher and volunteer driver programs, even though these
models have been successful in rural areas. One rural advocate lamented, “There
is no
ADA
service in rural areas
because there is no fixed-route service. Rural areas get electricity and roads,
but no transportation.”
ADA
paratransit in
rural areas was a topic of discussion in one group. In smaller communities,
there is even more of a shortage of resources to fund
ADA
paratransit than in higher density urban areas. One suggested strategy is for rural
transportation providers in smaller communities to place priority on education,
employment and medical trips.
Additional Implementation Issues Identified
·
Maintenance of accessibility equipment remains
an issue, but the acquisition of low-floor ramp-equipped buses that are easier
to maintain than lift buses has significantly ameliorated this concern.
·
One advocate raised the concern that
jurisdictional boundaries create problems in an
ADA
paratransit context. On the fixed-route system, if one’s city or town borders
another city, nondisabled people can travel from one system to the next.
However, paratransit service frequently stops at the jurisdictional border.
Contiguous jurisdictions are encouraged to coordinate paratransit systems but
are not required to do so by the
ADA
.
These arbitrary barriers impose difficult limitations on paratransit riders if
there is no way to transfer from system to system.
·
One advocate raised the issue that the DOT ADA
regulation mandates next-day service in
ADA
paratransit, not same-day service, even though fixed-route riders always can avail
themselves of same-day transportation on bus and rail systems.
·
Capacity constraints in paratransit still
present challenges, according to some participants. Paratransit ride denials
and long telephone hold times were cited as challenges that remain in some
communities.
·
In some cities, lack
of full
ADA
implementation on the fixed-route system (for example, low
rates of stop announcements on the bus, or sizable gaps between the train car
and the platform) steers many riders with disabilities toward the paratransit
system.
·
ADA
paratransit providers sometimes find significant numbers
of rider no-shows to be costly. In some transit systems, advocates report that
riders are not informed of, or accorded, their right to contest that a
particular no-show was beyond their control, or their right to appeal no-show
suspensions imposed by the transit agency. Some transit agencies impose
penalties for fewer no-shows than FTA has suggested would constitute a
pattern or practice of missing scheduled trips.
·
Some transit agencies
have cut paratransit service back to minimum
ADA
requirements in order to limit costs. In the view of some riders and advocates,
some of these cuts have significant adverse effects on riders.
·
Some transit agencies have stated that when they
attempt to involve the disability community in decision making, it is
challenging to know how to attain good representation. Which organizations and
individuals should they involve? How much diversity among disability categories
do they need? Who represents the disability community?
·
Two other issues arose: difficulties in the use
of taxi service faced by people with disabilities who use service animals; and
barriers encountered by wheelchair users due to the lack of accessible vehicles
on the part of airport shuttle services, despite
ADA
requirements.
·
One government enforcer identified as a
challenge the lack of standardized data being reported from agency to agency,
and suggested building in financial incentives toward standardization of data.
Reflecting a similar concern, DOT recently published a Notice of Proposed
Rulemaking (still out for public comment at the time of this writing) that
asked whether it should require standardization in how
ADA
paratransit denials are counted.
·
One participant discussed the challenge of
emergency transportation and how it needs to include planning for people with
disabilities in a meaningful way. Most localities do not consider this aspect
of transportation, or pay it lip service at best.
Discussion of Successes
Participants discussed many successes and advances in
ADA
transportation. One included the successful use of AVLs and MDTs to track
vehicles and communicate with drivers.
The public involvement process counts as another significant
success reported by one transit agency representative. He described two
components. The first is an advisory group that met monthly for a number of
years. At this point, so many issues have been resolved that the group does not
need to meet monthly; now they meet quarterly instead. The second component is
quarterly public meetings. At one time, all the issues raised at these meetings
involved paratransit; today, they are mostly fixed-route issues. In earlier
times, strife and bitterness filled the meetings; now they are “more like
family reunions.” There is a public comment section at the beginning of each
meeting, and approximately 85 percent of the comments are complimentary. This
agency is committed to a public involvement process to discuss all issues, even
if there is not always agreement.
2. Key Stakeholder Recommendations
Implementation Issue: A lack of resources for
enforcement hampers
ADA
compliance
by transportation providers. DOT receives four times as many complaints related
to disability as any other issue.
Recommendation: Congress should provide additional resources for enforcement of the
ADA
transportation provisions. Additional staff to conduct complaint
investigations, additional funds for
ADA
compliance reviews, and funding for a complaint reporting mechanism could have
a significant impact on implementation.
Recommendation: Transit operators should provide brochures and posters that inform riders about
their rights and how to reach the provider’s
ADA
compliance office. This strategy would enlist riders with disabilities to
report information about
ADA
implementation and compliance problems with drivers, equipment, and service.
Implementation Issue: Some transportation
agencies and consumers lack information, education, and training on how the
ADA
applies to them.
Recommendation: Transit agencies should include
ADA
training for boards, managers, and policymakers as well as for frontline staff
who are delivering services.
Recommendation: DOT
should work with DOED to include training on riding public transportation as a
component in the Individualized Education Programs (IEPs) of students with
disabilities. Vocational rehabilitation clients also should receive training on
public transportation skills.
Recommendation: As
a condition of the program, contracts between transit agencies and taxis that
participate in an
ADA
paratransit
service using a voucher system or other arrangement must include mandatory
training on the
ADA
for the taxi
service provider.
Implementation Issue: Sporadic stop
announcements.
Recommendation: Transit
agencies should provide strong oversight of drivers and other staff responsible
for stop announcements.
Recommendation: Transit
agencies should use progressive discipline in cases of operator failure to
announce required stops.
Recommendation: Transit
agencies should institute secret rider programs to assess compliance with the
ADA
stop announcement provisions.
Recommendation: Transit
agencies should acquire equipment such as lapel and sleeve microphones to help
drivers announce stops.
Implementation Issue: Effectively securing
mobility devices in vehicles—including the difficulty of securing certain
mobility devices—and, in some locations, uneven driver performance in proper
securement.
Recommendation: To
improve securement of mobility equipment in transit vehicles, transit agencies
should institute voluntary programs to install securement straps, if needed, on
riders’ wheelchairs and to mark the wheelchair’s best securement points.
Implementation Issue: Transit agencies are
concerned with the impact on strained budgets caused by the high demand for
paratransit by people with disabilities who may be able to use fixed-route
transit.
Recommendation: Transit
agencies should encourage use of the fixed-route service by offering incentives
such as free or reduced-fare rides on the fixed-route system, discounts to
local venues for fixed-route riders, and symbolic awards such as tickets and
dinner passes for former paratransit riders who are now using the fixed-route
service.
Recommendation: Paratransit
programs should investigate whether offering same-day taxi voucher rides in
combination with next-day service leads to reduced costs.
Implementation Issue: The lack of
ADA
paratransit subscription service in some communities makes it very difficult to
arrange regular trips to work or school.
Recommendation: DOT
should distribute periodic announcements that the
ADA
allows paratransit providers to exceed the regulation limit of 50 percent of
capacity to be dedicated to their subscription service, if the demand is
present, as long as there are no capacity constraints on the service.
Implementation Issue: High turnover in
ADA
paratransit personnel jeopardizes compliance with the
ADA
.
Recommendation: Transit
agencies should equalize the salary and benefits of their fixed-route and
paratransit drivers as much as possible, and provide them with the same or
similar training components. If possible, operators should have experience
driving in both systems rather than only one.
Recommendation: Transit
agencies should recognize and compensate their paratransit managers at a level
equal to that of other management positions in the agencies.
Implementation Issue:
ADA
paratransit implementation challenges stem from difficulties in contractor
management, monitoring, and quality.
Recommendation: Transit
agencies should award contracts according to best value, not necessarily the
lowest bid.
Implementation Issue: Elevator outages and the
provision of information on elevator outages are barriers to riders of rail
transit systems.
Recommendation: Transit
operators should communicate
information on elevator outages using a variety of accessible methods. Examples
include a centralized phone system to report out-of-service elevators, signage
at each station to provide information on elevator service throughout the
system, system-wide announcements made over a public address system when an elevator
goes into or out of service, and sending an e-mail to a list of interested
riders if a particular elevator is out of service.
Implementation Issue: Barriers to equal access
to transportation remain for people who are deaf or hard of hearing.
Recommendation: The
Access Board should consider whether visual announcements should be required
when audible announcements are present on buses, in trains, and on train
platforms.
Implementation Issue: There is inconsistent
compliance among small, private over-the-road bus operators, vans with a
particular passenger load, and other types of passenger vehicles.
Recommendation: When an over-the-road vehicle is licensed, the licensing agency should include
information with the license that explains the
ADA
requirements for that type of vehicle.
Implementation Issue: There are few
transportation services in most small towns and rural areas, which adversely
affects a significant percentage of people with disabilities in the
United
States
.
Recommendation: Federal
Transit Administration rules for the New Freedom Initiative should not preclude
voucher and volunteer driver programs, which have been effective in bringing
additional transportation to rural areas.
3. Topics for Further Research
Stakeholders identified the following research
needs related to transportation:
·
Document the extensive unmet transportation needs
of people with disabilities.
·
Document the social and financial benefits of an
accessible, integrated society. For example, when transportation and other
services are not available, institutionalization can be the result, at a high
cost to the individual and society.
·
Document the hidden costs of the lack of
transportation for people with disabilities, or of the transportation systems
that are not in compliance with the
ADA
.
·
Research best practices in paratransit
contracting.
·
Research the reasons companies purchase
wheelchair-accessible taxis. Are there specific incentives, or other reasons
that motivate the purchase?
·
Document the link between stable transit agency
personnel and the quality of transit service.
C. Public Accommodations (Title
III)
[6]
1. Key Implementation Issues and
Discussion
[7]
Stakeholders discussed their perceptions about the difficulty
some businesses have knowing when they are in compliance with the
ADA
and the extent to which businesses have failed to implement the
ADA
.
They also discussed problems that flow from lack of awareness about disability,
the principle of “universality,” and the deep lack of training and knowledge in
the building and construction community. These overarching issues and other
implementation concerns are loosely grouped and summarized below.
Limited
ADA
Implementation
Stakeholders with disabilities consistently said that they
perceive that Title III entities—especially smaller businesses, medical
providers, and certain social service organizations—have done too little to
implement the law, with the consequence that people with disabilities do not
have full and free access to facilities, goods, and services.
They expressed the view that some businesses do little to
comply with the
ADA
, apparently in
part because of concern for cost but also because they do not perceive that
people with disabilities comprise a significant customer base. Many disability
community stakeholders observed that, in their experience, businesses are not
responsive even when specifically requested to remove an architectural barrier
or provide a particular accommodation. (See Chapter IV for a discussion of the
effectiveness of informal requests for compliance.) These stakeholders observed
that their frustration with the lack of implementation was further compounded
by the fact that there is no legal enforcement mechanism, other than
litigation, available to resolve most individual complaints of noncompliance by
Title III entities. (DOJ investigates charges of discrimination by Title III
entities when it has reason to believe that a covered entity is engaging in a
pattern or practice of discrimination, but DOJ does not investigate each
individual complaint.) Furthermore, according to disability community and
attorney stakeholders, the lack of monetary damages under Title III hinders the
development of case law that could help clarify what steps covered entities are
required to take to comply.
Difficulty Determining Compliance
Representatives of covered entities, especially smaller
businesses, strongly expressed the view that they find it difficult or
impossible to know when they are in compliance with the
ADA
and what constitutes compliance, particularly with respect to the
barrier-removal provisions of Title III as they apply to existing facilities.
They cited the lack of easily obtained, appropriate, industry-specific
information that could guide them in determining what actions are required and
how much money they must spend to meet the requirements. Some business
stakeholders said that regardless of how much effort they devote to becoming
accessible, they fear that minor construction problems will leave them
vulnerable to litigation. One person suggested that businesses do not know how
to calculate the fiscal benefits of compliance, so the cost to achieve
implementation is regarded as an unnecessary expense.
There was general agreement among stakeholders that small
businesses in particular either are not aware of or do not understand the “readily
achievable” barrier-removal requirements of Title III. Representative business
stakeholders indicated that they would prefer clear-cut guidelines rather than
the current flexible standard that represents, from their perspective, a
constantly moving target. Small business stakeholders mentioned that they think
some form of certification—such as that provided by health departments—would
verify that the steps they had taken to comply with the law, particularly those
concerning readily achievable barrier removal, had fulfilled their obligations.
Such certification would serve as an incentive to take action and would help
shield them from litigation.
Lack of Disability Awareness
The stakeholders as a group also acknowledged that one of the
greatest challenges to
ADA
implementation is widespread lack of awareness about disability; in particular
the extent to which disability is pervasive in the communities that businesses
and other entities serve. This lack of awareness perpetuates the view held by
some businesses that people with disabilities do not represent a potential
customer base. Inaccurate information and perceptions about disability also have
influenced the extent to which implementation has been carried out by some
entities. One access specialist stakeholder reported that some businesses still
say they think wheelchair users do not patronize their establishment, so they
do not have an incentive for complying with the architectural access
requirements of the
ADA
. Several
business stakeholders said they think accessibility features present in hotel
rooms and public transportation, for example, are underutilized; therefore,
implementation requirements should be more flexible so industries can determine
the best way to achieve access.
However, disability community members noted that if access,
auxiliary aids, and other accommodations are available, people will come; but
because access cannot always be predicted, people with disabilities do not want
to waste their time or money, or risk disappointment, so they tend to patronize
facilities they know will welcome them. Some suggested that there still is a
pervasive attitude among certain businesses that people with disabilities
should be grateful for whatever is provided for them, thus suggesting that
voluntary charitable responses to disability are still considered appropriate.
Others noted that many small businesses are owned and operated by people from
diverse cultural and linguistic backgrounds. Not all cultures use the same
rights framework, so the challenge is reaching these individuals with
understandable, culturally relevant, and meaningful information and training.
Market Share Should Motivate
ADA
Implementation
From the disability community perspective, there was significant
discussion about how people with disabilities who go out to restaurants,
movies, sporting events, and other entertainment, as well as those who travel
for business and recreation, are frequently accompanied by their friends,
family, and colleagues. An inaccessible business loses not only the patronage
of the individual with a disability but also that of his or her family and
friends. Therefore, market share should be a strong motivation for implementing
the
ADA
. One access specialist
mentioned that he had worked with numerous retail establishments over the years
and found that every one thought that accessibility was worth the cost after it
led to increased business.
Several community stakeholders observed that some businesses
call for both flexibility and specificity in implementing the ADA, suggesting
that their real issues might have less to do with what businesses are required
to do under the law and more to do with their perceptions about the importance
of accessibility and the extent to which people with disabilities are valued as
customers.
Principle of Universality
Diverse stakeholders discussed at some length and in various
contexts the idea that one overarching goal should be to eliminate the
perception that people with disabilities are a separate group that exists apart
from the rest of the populations that businesses and other covered entities
serve. This perception of separateness perpetuates negative stereotypes and
discourages
ADA
implementation
actions that some business stakeholders perceive meet the needs of only a
small, discrete group. While ways must be found to increase disability
awareness, a central tenet of methods to enhance
ADA
implementation must require strategies to ensure that disability is also
perceived as an ordinary, indeed common, aspect of human experience. This
strong message—referred to by many as “universality”—was linked to discussion
about the urgency of promoting principles of universal design at every
opportunity. Most stakeholders think that these principles blur the artificial
distinctions that currently exist between people who do and do not have
disabilities by focusing on the functional needs of the largest and most
diverse population possible, and identifying solutions that meet those needs.
Information, Education, and Training
Diverse stakeholders identified education and training at all
levels of business and among architecture, design, and construction
professionals and people with disabilities as critical and essential elements
of meaningful
ADA
implementation.
They pointed out many situations in which the lack of professional training has
a negative impact on implementation, the absence of ongoing training for
frontline staff undermines customer service, and people with disabilities are
unaware of their rights and what the
ADA
provides.
Many stakeholders acknowledged that poor
ADA
implementation by some Title III entities stems from widespread lack of
knowledge as well as misinformation about the requirements of the
ADA
and state accessibility codes and guidelines among design, construction, and
other building professionals. One accessibility expert reported that corporate
attorneys and others with whom he works incorrectly perceive that some
businesses are “grandfathered”; that is, that the
ADA
does not apply to their facilities and operations.
Stakeholders cited the shortage of qualified architects and
other design and construction professionals as a significant problem; it can
take up to three years of hands-on professional experience to acquire the
knowledge that is necessary to ensure accessibility in accordance with federal
and state accessibility guidelines. Stakeholders said that most design and
building professionals do not fully appreciate that the work is not only highly
detailed and contextual but also requires judgment, design creativity, and
well-honed technical skills. Even for those design professionals who work
primarily with
ADA
access issues,
disability community and allied stakeholders noted that few take into account
related programmatic access concerns in their own design work or while
reviewing the work of others. For example, few are likely to understand the
need to plan for additional space in an examination room in a medical office
building to accommodate a wheelchair user who requires the assistance of a
mechanical lift to get up on an examination table.
As a practical matter, this pervasive lack of adequate
training and experience has a direct impact on the work of building
professionals, including plan checkers, inspectors, code officials, and
architects who work in municipal building departments. Some local building
officials do not have sufficient training or experience to determine whether
architectural drawings submitted for approval meet accessibility requirements;
thus, incorrect or missing access features can be overlooked at the plan stage.
Various participants noted that, all too frequently, a significant difference
exists between structural details called for in a construction blueprint and
what is actually built. This problem demonstrates that onsite construction
inspections are conducted less frequently than they are needed or that some
inspectors have insufficient training on or experience with access features.
Thus, access construction mistakes go unnoticed and uncorrected.
Some stakeholders suggested that code officials and plan
checkers have received adequate training but simply do not apply it, either
because they think the level of detail in the current standards is unnecessary
or because they have forgotten what they were taught. Others said that these
individuals receive too little training and almost no explanation about the
practical impact of accessibility requirements on the ability of people with
disabilities to move about freely in their communities.
Lack of knowledge among design professionals was considered to
be so important that stakeholders devoted significant time discussing solutions
aimed at every level of the design and construction industry.
Poor Communication
Another problem is poor communication between covered entities
and local officials, particularly those charged with building plan approval,
which stakeholders noted can be slow and fraught with incorrect information. In
one example raised by several stakeholders, an entity that rents a facility
owned by a city government was unclear on who was responsible for implementing
the
ADA
in common areas and
experienced significant difficulty obtaining information from city officials.
Obligations of Lessors and Lessees
In general, Title III entity stakeholders also expressed
strong concern about the problems they have experienced trying to determine the
respective
ADA
obligations of
lessors and lessees. Some larger entities noted that they have developed model
leases that require the parties to spell out their respective obligations
before entering into a lease agreement. Others mentioned that the issue often
comes up after a lease has been negotiated, when the lessee wishes to make
accessibility modifications to its space but finds that the lessor either will
not permit the work or will not share the cost of removing barriers from shared
public space. Several small business operators mentioned that lack of
implementation of the
ADA
’s access
requirements by entities that lease temporary space—such as those sometimes
used as art galleries—poses an additional problem.
Add-Ons
Some stakeholders mentioned that when a business seeks
approval from building officials to modify its premises for accessibility,
additional building code requirements frequently are added on to the project,
making it either too costly or unfeasible to complete. Others expressed
frustration with the length of time it takes to obtain a building permit and
other approvals, which can serve as an additional deterrent to entities that want
to remove accessibility barriers or improve accessibility.
Include
ADA
Oversight in Existing Business Systems
Much discussion was devoted to identifying methods to include
ADA
oversight in existing business systems. Representatives from several locales mentioned
that they are in discussions with city officials about methods to expedite the
permit process when the purpose of the request is the removal of architectural
barriers.
Confusion about Programmatic Access
Many disability community stakeholders thought that businesses
do not yet understand the difference between architectural accessibility and
programmatic accessibility (for example, modification of policies and
practices, provision of materials and information in alternative formats, and
provision of auxiliary aids and services), or that these are civil rights issues for people with disabilities. For
example, several community stakeholders observed that, in their experience,
there is widespread lack of knowledge among covered entities about provisions
of the
ADA
that permit service
animals to enter most public accommodations. They noted that businesses think
of the ADA only as a building code when, in reality, it provides methods that
ensure that people with disabilities can participate fully in all aspects of
community life. Access is about enabling people with disabilities to interact with
and participate freely in all aspects of a business. Many businesses, moreover,
are not aware that they have ongoing obligations under the
ADA
.
Franchise Operations
Several stakeholders associated with franchise operations
noted that while they do not experience resistance from franchise owners to
following the
ADA
, they find that
they have to be very vigilant and aggressive about addressing the gap between
good will on the part of the owner and the actual realization of accessibility
in facilities and products. They also noted that they have experienced
difficulty maintaining accessibility awareness among building professionals and
even greater difficulty ensuring that contractors build ADA-compliant
facilities. They said that they must directly oversee the work of
subcontractors in the field because there is a dearth of competent general
contractors. One person noted that access construction errors can reach 30 percent.
Poor Implementation by Faith-Based Groups
Several people noted that the trend toward increased federal
funding for faith-based groups that provide social services has increased
access problems because these groups tend to think they are exempt from compliance
with the
ADA
.
Widespread Problems in Delivery of Health Care Services
Some stakeholders, including those representing Title III
health-service-related entities, noted that medical systems—including
state-funded health plans, clinics, hospitals, and the offices of health care
professionals—thus far have failed outright to recognize the depth and breadth
of the need for physical and programmatic access to health facilities and
services for people with disabilities. Consequently, very few have explored,
implemented, and evaluated solutions. While private health care providers have
their own independent ADA Title III obligations, several community stakeholders
expressed the opinion that health plans do not pay providers enough to help
cover the cost for certain accessibility features and to provide effective
communication, auxiliary aids, and other accommodations. Overall, there is
limited awareness of the issues and little interest or coordination among
states, health plans, providers, and others responsible for finding solutions.
Poor Implementation in Culturally Diverse Communities
Various disability community stakeholders observed that
implementation of the
ADA
’s Title
III requirements for architectural accessibility and barrier removal in
culturally diverse communities and economically disadvantaged communities is
particularly weak. Several people said that some of the One-Stop programs in
their communities (comprehensive federally funded one-stop career centers) are
inaccessible, as are other programs that provide essential support and services
to members of the community. They note that lack of access compounds the
difficulties people with disabilities face in these neighborhoods and
communities, and further limits their capacity to lead productive and
independent lives.
Relationships between Title II and Title III Entities
Stakeholders representing city governments noted that working
with city contractors that are Title III entities (for example, day care
centers, drug treatment programs, homeless shelters, health clinics) is
challenging because service providers with whom cities contract are frequently
unaware of the
ADA
or, if they are
aware of the law, they do not know how it applies to them. Even when an entity
is aware of the
ADA
and has taken
steps to ensure equal access and participation for people with disabilities,
high staff turnover in these organizations creates the problem of consistently
ensuring appropriate responses to people with disabilities who have contact
with the program.
Several stakeholders from city governments discussed methods
they use to improve
ADA
compliance
by organizations with whom they contract. One person noted that his office has
a small fund for auxiliary aids that a city contractor can use for limited
purposes, and that his department provides contractees with
ADA
technical assistance, community resources for obtaining alternative formats,
auxiliary aids, and other accommodations upon request.
High Staff Turnover
Many large entities noted that staff turnover in their
industries can be as high as 100 percent annually (for example, in large retail
establishments, stadiums, budget restaurants), so maintaining an informed
workforce equipped to provide high-quality customer service for people with
disabilities presents a tremendous challenge. Without training that is deeply
embedded and ongoing, the institutional memory loss created by such high
turnover inevitably leads to poor service and potential discrimination against
people with disabilities.
Perception of Lack of
ADA
Information
Some stakeholders observed that since the enactment of the ADA
in 1990, significant ADA technical assistance material has been created,
translated into many languages, and disseminated by various federal agencies,
disability organizations, public interest groups, trade associations,
membership groups, and others. Yet business stakeholders strongly indicated
that they did not know precisely where to obtain information about the law or
how to locate expertise that relates directly to their specific industry.
Most stakeholders representing covered entities said they
perceive a deep need for reliable, industry-specific information to help
businesses understand their obligations and enable them to know when they are
in compliance. One membership organization stakeholder said he would actively
disseminate such information to members if it were available. Many business
stakeholders said they would prefer to have the information delivered to them
through the conventional business channels they rely on for other information.
However, it was the view of several business stakeholders that some of their
peers either do not take advantage of existing informational and educational
resources or simply lack enough interest in the topic to investigate where information
might be available. Others noted that the
ADA
was a high priority when the law was first enacted but is no longer perceived
to be an important area of concern, so less effort is made to acquire
information.
Tax Credits
Some businesses indicated that they were unaware of the tax
credits available for access modifications, or thought the credits did not
offer enough benefit to bother with the paperwork. This view was echoed by
several disability community stakeholders, who said that research with which
they were familiar showed that the federal tax credit has not been a sufficient
incentive for businesses to initiate barrier removal. One person mentioned that
certain devices—such as height-adjustable examination tables used in the
offices of health care providers—might not qualify for a tax credit according
to the IRS because they would be used by all patients, not just people with
disabilities. Thus, the financial incentive for acquiring accessible equipment
might be removed for some entities.
Lack of Disability Community
ADA
Awareness
Diverse stakeholders observed that many people with
disabilities do not understand the
ADA
or what rights it affords. This knowledge gap has led some to hold unrealistic
expectations about what is required of businesses and other covered entities,
while others simply accept the lack of physical and programmatic access as an
inevitable consequence of disability. Lack of knowledge also leads people with
disabilities to provide inaccurate advice to businesses and other entities
about their
ADA
obligations.
Web Site Accessibility
Businesses that operate a Web site expressed confusion and
uncertainty about what is expected of them in terms of Web usability and
accessibility. Some were unaware that Web access is even an issue, while others
indicated that they do not understand the central tenets of Web accessibility,
what they are legally required to do to ensure usability under the ADA, and
where to obtain information and assistance.
Health and Safety Risks
Some disability community stakeholders observed that people
with disabilities are sometimes perceived as either a health or a safety risk,
whether or not they actually pose any risk, and are therefore refused service,
excluded from participation, or otherwise discriminated against by various
entities. This situation can occur when covered entities apply stereotypes
about people with disabilities in the absence of objective evidence. Examples
that stakeholders mentioned include wheelchair users who are incorrectly
perceived as posing a hazard to pedestrians, or individuals with psychiatric,
cognitive, or behavioral disabilities who are incorrectly perceived as
possessing aggressive or violent behaviors. Others noted that failure of
covered entities to maintain accessibility equipment can pose hazards to people
with disabilities.
2. Key Stakeholder Recommendations
Implementation Issue: Many Title III entities,
especially small businesses, have not complied with the barrier-removal
provisions of the
ADA
.
In order to change the current pattern of
ADA
noncompliance that stakeholders reported, especially on the part of smaller
businesses and other covered entities, new mechanisms for elevating and
imbedding
ADA
awareness, spurring
and rewarding implementation, and establishing penalties for failure to act
must be created. This observation led to recommendations that call for enhanced
federal enforcement and enlisting support from and establishing alliances with
many organizations and governing bodies that play diverse roles in state and
local government, and from fields such as health, safety, business development,
financing, design and construction, and insurance.
Recommendation: DOJ
should devote substantially more resources and time to investigating Title III
complaints, especially those regarding small businesses, in light of widespread
noncompliance by these covered entities.
Recommendation: Disability community, government, and other leaders and experts in
accessibility should partner with the following key
organizations to identify legislative, regulatory, and other methods to embed
ADA
information, incentives, and, where appropriate, penalties in interactions they
have with Title III covered entities:
·
National Association of State Fire Marshals:
Marshals tend to be responsible for fire safety code adoption and enforcement,
fire and arson investigation, fire incident data reporting and analysis, public
education, and advising governors and state legislatures on fire protection.
Methods should be identified and implemented that empower fire marshals, when
they conduct routine fire and safety inspections, to inspect businesses and
facilities for ADA-related accessible exits and paths of travel, evacuation
plans, and any other ADA oversight that is relevant to fire safety for people with
disabilities, and to inform the business about any problems.
·
City health departments: Department staff
enforce laws and regulations that protect health and ensure safety. Methods
should be identified and implemented that would empower health department
officials to determine whether sanitary facilities also meet
ADA
accessibility requirements when they conduct routine inspections of businesses
and facilities, and inform the entity about any identified problems.
·
Mortgage and construction lenders: If mortgage
and construction lenders conduct plan reviews or undertake other compliance
oversight as a routine part of processing a loan application for entities that
would be covered by Title III, methods should be identified and implemented
that would require lenders to require compliance with all applicable ADA
requirements as a condition of loan approval for businesses and other covered
entities. Lenders who do not otherwise conduct plan reviews or undertake other
compliance oversight should provide information to prospective Title III
borrowers about the
ADA
. State
mortgage lender associations should adopt model policies on
ADA
compliance oversight and information dissemination that could help guide the
practices of member lenders.
·
Associations of city and county government:
Associations of city and county government—such as the League of Cities,
National Association of Cities, and National Association of Counties—should
provide leadership on the recommended initiatives related to state and local
government by convening meetings with key experts, developing model policies,
supporting any required legislative or regulatory initiatives, and
disseminating information to members.
Recommendation: When
businesses apply for a new license, or renewal of an existing business license,
they should receive information about complying with the
ADA
and where to obtain additional information.
Recommendation: When health care professionals apply for a new license, or renewal of an
existing business license, they should receive specific information about
complying with provisions of the
ADA
that relate to health professionals.
Recommendation: Cities
should make incentives available to small and medium-sized businesses that want
to remove architectural barriers in existing buildings and facilities by
expediting the building permit and approval process when the purpose of the
project is solely to achieve accessibility. Locales routinely provide various
incentives to businesses to attract them to a particular neighborhood or prevent
them from leaving; thus, precedent exists for expediting the permit and
approval process.
Recommendation: The Building Officials and Code
Administrators International Inc. (BOCA), known as the International Code
Council (ICC), should amend ICC International Codes to bar the addition of
non-barrier-removal items by building officials when an entity seeks a permit
solely for the purpose of removing an architectural barrier that prevents the
full enjoyment and participation of individuals with disabilities.
California
has embedded such a requirement in the state access code, which serves as a
model and a precedent.
Recommendation: States
should consider creating a credentialed access specialist program as
Texas
has done and
California
is in the
process of doing. The program must have rigorous qualification and training
standards, and methods to conduct ongoing evaluation of specialist knowledge
and expertise. Specialists should be required to review and approve
construction drawings when building permits are required, and should be trained
to conduct site inspections and to advise businesses about barriers that can be
removed in a readily achievable manner.
Recommendation: When
a business seeks a permit to undertake a general renovation, the request should
trigger an
ADA
compliance review so
the owner will know which, if any, aspects of
ADA
accessibility are required. For example, the City of
Chicago
now requires every business to pay a fee for an accessibility review each time
an application is made for a building permit.
Recommendation: Key
federal agencies and private community development organizations should convene
an experts meeting to explore
methods for using various sources of community development funding—such as the
community investment tax, small business administration loans, Federal
Emergency Management Agency (FEMA) disaster relief funding, and community
development block grants—to help bring about
ADA
compliance changes. This could be accomplished by requiring
ADA
compliance as a term and condition of funding, which would be supported with
some financial help from the funding agency toward achieving the required
accessibility features and by dedicating specific amounts of money from
development funds to accomplish high-priority barrier-removal projects in the
target communities.
Recommendation: SBA,
in collaboration with participating lenders, should require
ADA
compliance as a term and condition of eligibility for small business loans. In
concert with this requirement, SBA should provide additional low-interest loan
assistance to businesses to help them provide the required accessibility
features.
Recommendation: Local
partnerships made up of community disability groups and various business
associations should regularly recognize entities that have been especially
successful at achieving architectural and programmatic access by publishing
information about them on industry and community Web sites and in publications,
and by honoring them at public events attended by their peers.
Implementation Issue: It is difficult to ensure
ADA
compliance by chain businesses
that are set up as franchise operations.
Several business franchisor stakeholders expressed the view
that it is essential for the various communities that are concerned about
ADA
implementation to work collaboratively with franchisors, franchisees, and their
member organizations to promote compliance. They indicated that they thought
key member franchise organizations would be eager to participate in a
collaboration that could potentially produce results for both parties. These
organizations provide an array of educational and support services to both
franchisees and franchisors. Stakeholders noted that it is the role of
franchisors to provide accurate information to franchisees, including information
on legislative or regulatory changes that affect franchisee operations. A
franchisor can be held liable by a franchisee that has not been informed that
it is violating either federal or state law. Similarly, a franchisee can be
charged liquidated damages by a franchisor if it fails to comply with laws and
regulations of which it is aware, according to stakeholders. Stakeholders made
the following recommendation:
Recommendation: Organizations such as the American Association of Franchisees and Dealers
(AAFD), a national nonprofit trade association that defines and promotes
quality in franchising practices, and the International Franchise Association
(IFA), which works to increase the knowledge and professional standards of the
franchising community, should work with the disability community, DOJ, and
representative businesses—
·
To include
ADA
implementation obligations in the Fair Franchising Standards created by AAFD
and the Franchise Association Code of Ethics, which is intended to establish a
framework for the implementation of best practices in the IFA’s relationship
with its members. The Fair Franchising Standards provide the basis for
objective accreditation of franchising companies seeking the endorsement of and
membership in AAFD. The Fair Franchising Seal is conferred by AAFD on
franchisors who demonstrate that they meet certain standards.
·
To ensure that all franchisors require that
franchisees with whom they contract meet all applicable
ADA
implementation obligations. These should be spelled out to the extent possible,
and any necessary technical assistance or informational materials—including
facility plans that include
ADA
access features—should be made available when the contract is finalized.
·
To ensure that the annual monitoring carried out
by the franchisor includes a review of
ADA
obligations to verify that the facility is fulfilling its architectural
accessibility requirements and that it is capable of meeting the needs of
customers with communication, alternative format, and other needs.
·
To ensure that a business owner who sells a
franchise or chain company be required to
show in the sales contract that the facility meets all applicable
ADA
accessibility requirements.
Implementation Issue: Building officials and
practitioners in the fields of design, construction, engineering, landscape
architecture, architecture, and city planning lack adequate and ongoing
training on accessibility guidelines and universal design principles, and this
lack contributes significantly to
ADA
implementation problems.
Several stakeholders said that from their experience and
perspective it has been very difficult to instill a lasting commitment to
principles of access and universal design in schools of architecture and in the
architecture profession as a whole. While architecture schools are required to
include accessibility in their curriculums, few explain and discuss the human
factors that underlie principles of universal design and accessibility or
monitor whether accessibility is being included as a design factor in studio
courses. Change, they said, depends on leadership in these institutions, where
the culture must be shifted so the need for accessibility is no longer
perceived as an unwanted problem but rather as a creative challenge. Many
stakeholders agreed that promoting universal design principles is the best
approach from a design perspective, while accessibility standards and codes
should be subsumed and explained as legal requirements.
In light of these observations, stakeholders made the
following recommendations to address specific aspects of training and education
for practitioners in the fields of design, construction, engineering, landscape
architecture, architecture, and city planning.
Recommendation: As
a condition of ongoing licensing, everyone involved in design, construction,
engineering, landscape architecture, architecture, and city planning should be
required to take universal design courses that include explanations of access
codes and standards, and these courses should be offered through continuing
education programs. Sponsorship should be provided by state and national trade
and member organizations such as the ICC and the American Institute of
Architects (AIA).
Recommendation: The
AIA should establish a task force empowered to make recommendations about
activities the AIA should undertake to promote universal design and ensure that
members and others become educated on the subject, and have access to
appropriate and effective resources.
Recommendation: The
National Architectural Accrediting Board (NAAB), American Society of Landscape
Architects (ASLA), National Association of Schools of Art and Design (NASAD),
and other accreditation bodies should require that schools they accredit teach
a required course on universal design that includes a component that focuses on
accessibility codes and guidelines. A model for this requirement is the current
trend toward requiring environmentally friendly (“green”) architecture courses
as a condition of accreditation.
Recommendation: Decision makers from key federal agencies charged with implementing the
ADA
should convene to explore methods to advance the principles of universal design
beyond what is currently being supported by the National Institute on
Disability and Rehabilitation Research (NIDRR).
Implementation Issue: Health care systems and
practitioners have failed to implement the
ADA
in many aspects of patient care.
Stakeholders pointed out that
ADA
implementation is poor in the health care delivery sector. In addition to the
recommendation that NCD undertake a separate initiative on this issue, they
identified the following recommendations related to accreditation.
Recommendation: The
Association of American Medical Colleges (AAMC) and the Liaison Committee on
Medical Education (LCME) should require that, in order to gain accreditation,
medical schools increase disability knowledge and programmatic access awareness
among prospective health care professionals by incorporating disability and
ADA
implementation issues and methods into curricula. The AAMC works to ensure that
the structure, content, and conduct of medical education meet the highest
standards, and accreditation by the LCME is required for schools to receive
federal grants for medical education and to participate in federal loan programs.
Recommendation: The
Institute
of
Medicine
of the National Academies should call for the AAMC and the LCME to require that
disability knowledge and
ADA
programmatic access awareness be included in curricula for prospective health
care professionals as a qualification for accreditation.
Implementation Issue: Title III entities lack
information, education, and training on how the
ADA
applies to them and how to take steps to comply.
Recommendation: Leading
business associations such as the U.S. Chamber of Commerce, the Council of
Better Business Bureaus, the National Federation of Independent Businesses, and
the National Restaurant Association should explore initiating an
ADA
education project with their members. This would involve notifying members about
the
ADA
through mailings; providing
information on their respective Web sites and at conferences and regional and
national meetings; and informing them that the organization can distribute
ADA
implementation materials published by DOJ and other federal agencies upon
request.
Recommendation: The
Small Business Council of the U.S. Chamber of Commerce should endorse and
support the dissemination of information related to
ADA
implementation to Chamber members and to identify the most effective ways both
the Council and the Chamber can engage in member education that comports with
its mission and capacity.
Recommendation: SBA
should establish partnerships with disability organizations and institutions of
higher education to develop and add an ADA Title III training course to its
roster of free online courses for small businesses. SBA also should be urged to
sponsor local and regional ADA Title III training as an ongoing element of its
national training seminars for small businesses.
Recommendation: SBA
should identify methods to ensure that participants in the SCORE
project—retired executives who advise small businesses—are provided information
about the Title III public accommodation provisions of the
ADA
,
and incorporate this information when they consult with small business owners
and executives.
Implementation Issue: Many people with
disabilities do not understand the basic provisions of the
ADA
and, therefore, cannot advocate effectively for themselves or provide accurate
ADA
advice to covered entities.
In light of the fact that robust
ADA
training for the disability community nationwide has not been undertaken since
shortly after the law’s enactment in 1990, stakeholders observed that a new
training initiative is overdue.
Recommendation: The federal agencies that have
ADA
implementation and enforcement roles should join in a collaborative effort to
fund a substantial nationwide
ADA
training initiative for people with disabilities. Training should accomplish
the following:
·
Increase
ADA
awareness in low-income communities.
·
Raise awareness among people from diverse racial
and ethnic backgrounds.
·
Develop advocacy capacity among youth.
·
Increase awareness of the
ADA
’s
potential to increase independence and community participation among seniors.
·
Promote leadership development.
·
Target specific areas in which
ADA
implementation has lagged behind (for example, health care and small
businesses).
Implementation Issue: Widespread use of the
Internet has developed since the enactment of the
ADA
,
yet many Title III entities have not taken steps to ensure that their Web sites
are accessible.
Stakeholders think that the Internet holds significant promise
for social change and regard the issue of Web access as cutting edge. To the
extent that businesses and other covered entities do business or provide
information or services using the Internet, they think it is becoming
increasingly important to find ways to promote the fact that people with
disabilities represent a substantial part of their customer and service base
and, therefore, should have full and free access to the goods and services
entities offer. Stakeholders made the following recommendations to advance
accessibility.
Recommendation: Entities
that register domain names should provide Web access information to applicants
and a link to World Wide Web Consortium (W3C) information about Web site
accessibility.
Recommendation: Entities that register domain names should require assurances that sites that
plan to sell goods and services online will be accessible as a condition of
acquiring the domain.
Recommendation: Federal tax credits available for architectural barrier removal also should be
available to make existing Web sites accessible.
Recommendation: Accreditation programs and industry associations (for example, the American
Association of Museums) should require Web accessibility as a criterion for
membership.
Recommendation: Entities
that contract for services (e.g., states and cities) should require that
entities with which they contract have accessible Web sites as a requirement to
receive contracts.
Recommendation: Accreditation organizations should require educational institutions that offer
information technology (IT) programs to include disability and Web site
accessibility courses as curriculum requirements.
Implementation Issue: Misperception of health
or safety risks sometimes results in exclusion from participation of people
with disabilities.
Significant discussion took place about how people
with disabilities are excluded from activities and programs based on
misperception of health or safety risk. Stakeholders crafted specific
recommendations regarding this problem, but they indicated that all
recommendations must be built on the following guiding principles:
·
Avoid making assumptions about all individuals
in a disability group on the basis of the behavior or conduct of one person in
that group.
·
Exclusion is permitted only when bona fide
evidence is available showing that the individual with a disability or others
might be exposed to a legitimate risk.
·
Exclusion is a last and final resort after all
other avenues have been exhausted (for example, providing accommodations,
modifying policies).
Recommendation: Key
organizations concerned with ensuring that civil rights for individuals with
disabilities are protected (for example, DOJ, American Diabetes Association, The
ARC, National Disability Rights Network, and mental health consumer
organizations) should collaborate with certain businesses (e.g., theaters,
stadiums, performance centers, amusement parks) to create training and
informational materials that provide practical, realistic information and
guidance for businesses and entities, dispel stereotypes, and recommend
policies the entities should adopt to guide their conduct if a bona fide safety
risk arises. Policy guidelines must acknowledge that standards for behavior and
conduct will differ according to the context and the situation, but a process
must be set forth for determining whether a risk exists and whether an
accommodation can be provided that will mitigate the risk.
Implementation Issue: There is a lack of
successful implementation models and examples of
ADA
best practices that can demonstrate effective methods for complying with the
law.
Stakeholders noted that leaders in the field of education have
established centers of excellence as a strategy to collect and evaluate
information about effective educational practices that might have the potential
to become best practices. These centers evaluate numerous approaches to the
delivery of educational programming and the respective outcomes related to
their stated objectives. Using this example as a guide, the following
recommendation calls for establishing centers of excellence devoted to
identifying and promoting effective
ADA
implementation.
Recommendation: Each
key federal agency charged with a role in enforcing the ADA (for example, the
Departments of Justice, Health and Human Services, Education, Labor, and
Transportation) should establish a center of excellence, either within the
agency or through a qualified contractor. Each center’s mission would be to
conduct research and collect information about effective methods of ADA
implementation related to the agency’s sphere of concern; rigorously evaluate
the methods to determine their quantifiable impact on people with disabilities;
support activities that will enhance covered entities’ capacity to collect and
report data on implementation activities that have the potential to become best
practice models; and report and widely disseminate results. (The EEOC’s study
of nine states’ implementation of the
ADA
’s
employment requirements is an example of preliminary work of the type such
centers would undertake.)
Implementation Issue: Some businesses that are
required to comply with the
ADA
want a certification or seal of approval indicating that the business has met
its
ADA
barrier-removal obligations
for existing buildings and facilities.
Stakeholders discussed at length the benefits and
disadvantages of some form of certification or seal of approval that would
indicate that a business has met its
ADA
barrier-removal obligations for existing buildings and facilities. Many thought
that a certification program was imperative, because it would shield against
liability and indicate a good faith effort to comply with the
ADA
.
Others thought that time and effort would be better spent helping businesses
learn about the
ADA
and about
methods to provide access, because doing so would actually attract customers
with disabilities and their families and friends. The following recommendation
is presented in light of these divergent views.
Recommendation: To explore the feasibility of creating a certification or seal of approval
program that would indicate that a business has met its ADA barrier-removal
obligations for existing buildings and facilities, the Council of Better
Business Bureaus (CBBB) should convene a working group of stakeholder
representatives, such as neighborhood business networks, individual small
businesses, and representatives from the disability community. CBBB should
invite representatives from DOJ and the Access Board, as well as architects and
other technical and policy experts familiar with barrier-removal issues in
existing facilities, to serve as advisors. The group should be charged with
determining the need, benefit to stakeholders, and feasibility of such a
program. If it is determined that the concept should go forward, the group
should recommend possible mechanisms for testing one or more program ideas in
several pilot studies that include methods for evaluating outcomes. The
following questions could serve as a starting point:
·
What is the purpose of the program (for example,
promoting customer service, attracting customers with disabilities, avoiding
liability)?
·
What are the criteria for participation?
·
What is the process for determining whether a
business is eligible to participate?
·
Who would administer the program?
·
What are the qualifications of those who
determine eligibility?
·
What is the frequency and process for renewal?
·
What is the cost of the program, and who pays?
3. Topics for Further Research
Creating Incentives for
ADA
Compliance
Stakeholders discussed numerous ways
ADA
implementation could be enhanced by embedding rewards and incentives in
existing business systems and points of contact for routine matters. These
include the purchase of various types of insurance coverage and the sale of
commercial property.
In theory, mechanisms could be adopted whereby businesses that
have taken steps to comply with Title III of the
ADA
can be acknowledged and rewarded through a reduced insurance rate structure.
Some insurers already offer reduced premiums for certain
coverages, including workplace safety, disaster preparation, and human resource
intervention if certain requirements are followed; thus, there is a potential
model for this strategy. Furthermore, since insurance companies
frequently are required to pay for costs related to
ADA
barrier-removal litigation, taking steps that could reduce their liability
holds potential financial benefit for their own operations while furthering the
goal of enhancing
ADA
implementation.
Certain insurance trade associations—such as the National
Association of Insurance Commissioners (NAIC), the Insurance Information
Institute, and the Insurance Institute of America—could serve as points of
contact. Discussions should also include identifying methods and procedures
whereby insurance companies can routinely provide information to prospective
Title III entities about their responsibilities under the
ADA
and where they can find additional information when they apply for coverage.
Another method to build
ADA
implementation into commonplace business interactions is to require that when
commercial property is sold, the seller must disclose all known areas of
ADA
noncompliance. Under this scheme, the buyer has received notice about
ADA
violations, thus initiating the first step in a voluntary process of
compliance.
The following specific research recommendations are intended
to build on these implementation strategies:
Recommendation: An
independent insurance research body should conduct a feasibility study to
determine to what extent the insurance industry could offer reduced premiums on
certain products (for example, property insurance, business interruption, and liability) as a result of
the reduced risk of liability when entities implement the ADA. Such research
should determine how the strategy to offer reduced insurance premiums can be
implemented and whether amendments would be required to state insurance laws
and regulations, and document the actions necessary to achieve this approach.
Research results should be widely disseminated through industry publications,
on the Internet, and to DOJ.
Recommendation: A
nonpartisan real estate research body should
commission or undertake research on
selected state laws and regulations governing the sale of commercial property
to determine to what extent they would permit a requirement that those who are
selling commercial property disclose all known areas of
ADA
noncompliance, and should make recommendations
for achieving this requirement. Research results should be widely disseminated
through industry publications, on the Internet, and to DOJ.
Improving Programmatic Accessibility
Stakeholders think that the underlying reason entities do not
provide programmatic access when required to do so is rooted in the unmet need
for education about disability generally and about the
ADA
as a civil rights law in particular. They discussed the role that negative
attitudes and disability stigma play, and identified areas in which education
could play a crucial role—in K–12 curricula; enhanced professional training for
architects, designers, planners, medical professionals, and others; and an
ongoing public education and public relations campaign.
Various stakeholders identified the need for research to
clarify why many covered entities either do not understand programmatic
accessibility or are unaware of its principal requirements. Although lack of
knowledge about the
ADA
and
misperceptions about disability appear to be root causes, little structured
investigation has been conducted to identify potentially effective solutions.
Several stakeholders noted that people with disabilities, policymakers,
legislators, and others currently have only anecdotes and litigation outcomes
to help them shape responses. Stakeholders identified research strategies that
would help clarify and define the various problems and perspectives, and inform
potential solutions.
Such research would, at a minimum, determine to what extent
certain types of covered entities are aware of their obligations in this
respect and what additional information and assistance they require to provide
effective communication and alternative formats and to modify policies that exclude
people with disabilities. Research would also reveal the impact of lack of
compliance on people with disabilities, further define the impact of the
limited role of federal enforcement, and potentially encourage collaboration
with trade and membership associations for the purpose of promoting
ADA
education and enhancing implementation.
Stakeholders determined that the enormous magnitude of poor
ADA
implementation by health care providers calls for specific, targeted research.
Recommendation: Federal agencies charged with ADA implementation or ensuring full community
participation for people with disabilities (for example, DOJ, the Access Board,
NIDRR, the Department of Health and Human Services [HHS]) should form a
consortium to generate funding to commission research on the following general
themes:
·
Identify obstacles and barriers to
implementation of the ADA’s provisions related to programmatic access (for
example, modification of policies and practices, provision of materials and
information in alternative formats, and provision of auxiliary aids and
services) by representative Title III entities such as social service
organizations and health care providers, and recommend solutions.
·
Understand the extent to which the programmatic
access needs of people with disabilities (for example, modification of policies
and practices, provision of materials and information in alternative formats,
and provision of auxiliary aids and services) are being met to enable them to
enjoy or benefit from the programs and services offered by selected Title III
entities such as social service organizations and health care providers, and
recommend solutions.
Recommendation: NCD
should undertake a robust, independent qualitative and quantitative research
project that identifies
ADA
implementation issues related to health care institutions and providers, and
should make recommendations for reform.
Evaluation of Technical Assistance Materials
Stakeholders from trade and member associations, businesses,
and other covered entities strongly stated that one key issue related to their
capacity to determine whether they are in compliance is that they perceive that
they do not have access to adequate, industry-specific information and
materials in plain language that instruct them on how to comply with the ADA
and what constitutes compliance.
In light of the fact that DOJ created industry-specific
ADA
compliance materials soon after the enactment of the law, and that much of that
material has been updated and translated into numerous languages, it is
important to understand why Title III entities report that they do not have
access to adequate information about how to comply with the
ADA
.
[8]
In response to discussion about where stakeholders go for
ADA
information, representatives from larger entities said that, for the most part,
they rely on in-house sources, including legal counsel or their industry
organizations. Smaller businesses said they would likely turn to their
neighborhood associations, peers, and local chambers of commerce, if they
sought information at all. According to some stakeholders, the rise of the
Internet has made it difficult for businesses to know what sources of
information are accurate and reliable without guidance or direction from
trusted colleagues, peers, or trade associations.
This situation suggests several research
questions:
·
To what extent are leading information
sources—for example, DOJ, the Access Board, regional Disability Business and
Technical
Assistance
Centers
(DBTACs) and IT Centers, Protection and Advocacy organizations, and other
disability rights and independent living groups—effective in reaching the key
contact points where covered entities go for information?
·
If the material, or information about how to
obtain it, is reaching the contact points, how effective is it in responding to
the informational needs of the various stakeholders?
·
Does new material need to be created?
·
If new material is needed, what information
should it contain?
·
How can distribution of materials and
information be improved?
·
Why is the Internet perceived as a source of
confusion, and how can it be used effectively to promote implementation?
To answer these and related questions, the following research
is recommended:
Recommendation: ADA
federal enforcement and allied agencies (for example, the Access Board, NIDRR)
should join forces to commission research (e.g., focus groups, surveys,
interviews) designed to elicit structured responses from a variety of Title III
entities about the extent to which specific technical assistance and
informational materials currently available from DOJ and others provide the ADA
implementation guidance these entities seek. Specific recommendations should be
made regarding content, formats, and distribution mechanisms that would meet
the needs of these entities.
Recommendation: DOJ
and the Access Board should convene a work group composed of businesses,
representatives from the disability community, disability law experts, city
building officials, architects, and others with related knowledge and expertise
to evaluate whether the federal interpretive guidance currently available on
methods to comply with the readily achievable barrier-removal provisions of
Title III provides sufficient information and detail to covered entities, and
to determine whether the material should be revised or expanded. If the work
group determines that new material should be created or the existing material
revised, it should submit a detailed recommendation to that effect to DOJ and
the Access Board.
D. Telecommunications (Title IV)
[9]
Implementation of the Title IV mandates has differed somewhat
from implementation of the other
ADA
mandates. Unlike the other titles, Title IV has a financing mechanism, allowing
the companies that are charged with providing telecommunications relay services
(TRS) to benefit financially from the provision of these services.
Specifically, these companies are able to receive compensation for intrastate
relay services through state jurisdictions and for interstate relay services
through the federally administered Interstate TRS Fund. As a consequence, the
tensions that have existed between people with disabilities and businesses and
governments covered under Titles I through III have largely been absent when it
comes to Title IV implementation. Rather, since Title IV first went into effect
in July 1993, relay consumers and telephone companies have enjoyed a
cooperative relationship that has fostered innovative technologies and high
service standards. These innovations and improved standards have been
authorized by the Federal Communications Commission (FCC), the agency that
bears responsibility for implementing Title IV. Recently, increased competition
among companies entering the interstate relay business—many of which are not
traditional telephone companies—has provided added stimulus for improving and
enhancing relay products.
Another difference between the implementation of Title IV and
the other ADA titles is that—unlike other agencies charged with implementing
the provisions of Titles I through III—the FCC has undergone a continuous and
thorough review of its TRS regulations virtually since the passage of the ADA.
Over these years, open rulemaking proceedings on every facet of relay services
have provided extensive and unparalleled opportunities for consumers and
providers to provide input on their needs and objectives, and have resulted in
a string of rulings that have enabled relay services to evolve along with the
rapid pace of modern technologies. Guiding these proceedings has been the overarching
goal of achieving telecommunications access that is functionally equivalent to
telephone access enjoyed by individuals without hearing or speech disabilities.
While the past 13 years have not been without tension or conflict between
consumers and the FCC, the constant involvement of consumers in these
proceedings has helped to allow telecommunications relay services to become a
catalyst for achieving independence and integration into society.
Title IV stakeholders identified a number of reasons that Title
IV has been effective for people with hearing and speech disabilities:
Ubiquitous Access
The ability to make or receive calls 24 hours a day, without
any limit on their number or content, has been beneficial to the health,
safety, independence, employment opportunities, and social lives of relay
users. Relay services have helped end the isolation of people who cannot hear
by fostering strong relationships with family and friends. The growth in relay
use over the past decade and a half is a testament to the success of Title IV.
Innovative Services
Two pivotal provisions in Title IV have
facilitated improvements in the quality of relay services as technology has
evolved. First, the
ADA
requires
TRS to be functionally equivalent to telephone services that are available to
hearing people who use conventional telephones. One stakeholder called
functional equivalency a “moving target” that transitions with each new
technology. Second, Title IV directs the FCC to ensure that its regulations “encourage
. . . the use of existing technology and do not discourage or impair the
development of improved technology.” Consistently, the FCC has relied upon this
section to approve innovative technologies, such as captioned telephone, Video
Relay Service (VRS), and Internet-based text relay. One of the stakeholders
reported that the FCC’s orders have also changed the perspective of many states
with respect to the types of relay services they should offer their residents.
Stakeholders elaborated on the benefits of these new and innovative
technologies:
·
By providing a means of achieving telephone
communication for people whose native or preferred method of communication is
sign language, VRS has empowered consumers who previously were not able to
communicate by phone. Many individuals who now use VRS were not comfortable
using written English to communicate by phone; therefore, they were not able to
enjoy functionally equivalent telephone services through TTY-based
text-to-voice services. VRS is particularly helpful to children who cannot yet
express themselves in writing and to older deaf and hard-of-hearing people who
may have difficulty typing. In addition, by allowing communication at the
regular voice telephone speed (200 wpm) rather than the 40–60 wpm typical of
TTYs, VRS achieves a more natural and flowing conversation, can be used for
conference calls, and enables callers to use interactive telephone voice
response menus.
·
Captioned telephone service enables individuals
with hearing loss to hear what the other party is saying and simultaneously to
read that party’s responses, so that these people can enjoy a more private,
natural, and interactive call that is functionally equivalent to real-time
telephone communications. Callers can simply dial the number they are trying to reach and be connected
automatically to a captioned telephone communication assistant (CA), affording
a new level of relay transparency. Two-line captioned telephone service also
enables callers to receive calls directly and to have direct 911 access with
captions, without first dialing a CA who then has to link the incoming number
to a special 911 database. This service has been particularly popular among
hard-of-hearing senior citizens who were reluctant to use TTY-based relay
services.
·
Wireless relay options that allow access through
pagers, PDAs, laptops, and other wireless Internet-enabled devices have been
extremely beneficial in allowing people to maintain their independence,
privacy, and productivity. As our society as a whole becomes more mobile, these
options have afforded people with hearing and speech disabilities the same
opportunities to achieve communication that others have when they are on the
move.
Available Funding
Title IV allows both intrastate and interstate relay providers
to recover the costs of providing relay services. Having a ready and available
funding source to support these services has been critically important to their
success.
Varied Services
Various types of relay modalities enable people with differing
needs to choose the modality that is best suited to their telecommunications
access needs. This enables people with hearing and speech disabilities to
achieve the type of communication that is most effective in any given
situation.
Consumer Choice
Internet-based relay services offer TRS consumers more choice
in relay providers than ever before. Competition among new entrants now
regularly brings innovative options and allows users to switch providers any
time they wish.
Universal 711 Access
Universal 711 access has been very effective—not only for
people with disabilities, but for hearing people who do not have TTYs and need
to call people with hearing or speech disabilities. This three-digit code is
easy to remember and can be used anywhere in the country for most relay services
that are initiated over the telephone network.
Mobility
Internet relay enables consumers to make calls when they are
away from their homes or businesses. For example, when they are on vacation,
relay users now can use computers at hotels to make their calls rather than
being limited to hotels that have a TTY.
However, the provision of TRS is undergoing significant
change, as these telephone services join in the migration away from the public
switched telephone network (PSTN). Originally merely a service that connected
calls between TTY users and voice telephone users, relay service is now capable
of providing an assortment of communication options, many of which use text or
video applications over the Internet. Newer, creative types of services have
expanded the number of users who can make telephone calls. This evolution of
relay services raises many issues for achieving effective implementation of
Title IV. The goal of the Title IV dialogue was to gather feedback from
consumers, providers, and government officials on strategies to achieve the
desired objectives of the
ADA
’s
relay mandates as these technological changes are taking place.
1. Key Implementation Issues and
Discussion
When the
ADA
was
enacted, several states had already established statewide relay programs or
were in the process of doing so. After the passage of the
ADA
,
all these states applied for and received approval from the FCC to continue
administering and enforcing these programs; indeed, by 1993, every state plus
the
U.S.
territories
had received such certification. Local telephone companies that were obligated
under the
ADA
to fund relay
services—and that bore ultimate responsibility for Title IV
compliance—fulfilled their responsibility through these individual state
programs. Typically, each of the states chose a single relay provider to
provide these services to all people residing in their state. Once certified,
the state was required to meet—or could exceed—the FCC’s mandatory minimum TRS
standards, including requirements to provide relay services 24 hours a day,
seven days a week; prohibitions against limiting the content, length, or
frequency of relay calls; and mandates for calls to be answered within a
certain amount of time. This arrangement ran relatively smoothly, with many
states raising the bar with more stringent requirements designed to produce
better relay services. For example, although FCC rules required 85 percent of
all calls to be answered within 10 seconds, several states demanded faster
answer speeds. Although the FCC retained ultimate authority over the provision
of all relay services nationwide, the actual administration and enforcement of
these systems occurred almost exclusively at the state level.
Since March 2000, relay services have undergone a major
transition. In an order released that month, the FCC approved various new types
of relay services that have taken advantage of innovative technologies. Many of
the newly approved relay services—including video relay, speech-to-speech (STS)
relay, and, more recently, captioned telephone relay (approved in 2003)—have changed
dramatically the nature of and vastly improved telephone communication for
people with hearing and speech disabilities. The introduction of new services,
and the overall transition of many relay services from the PSTN to the
Internet, has created implementation challenges that did not exist during the
first 10 years of Title IV implementation. At the stakeholder dialogue, many of
these challenges emerged. They have been loosely grouped below.
Lack of Training and Education
·
Despite the considerable success of relay
services among various user communities and the rapid growth of these services
over the past few years, many potential relay users—especially those who could
benefit from using VRS and STS—are still not using these services. Many people
are not aware of the existence of relay services or have not received training
on how to use them.
·
There exists a lack of knowledge about the
availability and use of relay services among the general public. Individuals
and businesses not acquainted with relay services often mistake these services
for commercial solicitations and refuse to accept relay calls.
·
Increased abuse of Internet-based relay services
by pranksters and hearing individuals who anonymously use them to make
fraudulent credit card purchases has caused many businesses to become
distrustful when they receive a relay call. Their lack of awareness often
causes these entities to hang up on relay users.
·
Some businesses and even some governmental
agencies are unfamiliar with the
ADA
’s
promises of confidentiality and refuse to use relay services to exchange
information about confidential matters, such as those concerning banking or
investment transactions, tax information, and health matters.
·
Many parents and schools are unaware of the
availability and function of relay services.
Funding
·
As the public migrates away from using
telecommunications services provided through the PSTN and transitions to using
communications services provided over the Internet, the traditional funding
base for TRS, which relies on revenues from PSTN-based services, is in danger
of drying up. A stable and reliable funding source is needed to ensure the
communication access required by Title IV.
·
Newer types of relay services require broadband
access to the Internet, for which there are no low-income subsidies.
·
Consumers need to acquire computers, video
equipment, captioned telephones, or other expensive devices to be able to use
new types of high-tech relay services. Most state equipment distribution
programs do not provide funding for these devices, many of which are
Internet-based.
·
There is no funding mechanism to reimburse
providers for the technical customer support needed to operate video equipment
used with VRS.
·
Interpreter shortages in many communities impede
the effective provision of VRS. Funding is needed to train additional American
Sign Language (ASL) and oral interpreters, so that there are enough
interpreters to handle both VRS and community interpreting demands.
Service Quality and Oversight
·
Stakeholders expressed concern that there are no
federal standards to assess the skills of CAs and interpreters who provide
Internet-based text and video relay services.
·
Previous oversight mechanisms employed by the
states do not work for Internet-based relay services. New TRS delivery methods
that are Internet-based need the same level of oversight on the federal level
as exists for traditional TRS on the state level.
·
State relay services vary considerably in quality:
Some states have dedicated administrators who are careful about providing
high-quality services; other states pay less attention to relay service
quality. When state contracts last for a long time and quality fluctuates,
there is not much consumers can do to improve the services they are receiving,
because they are bound by the relay provider chosen by their state and may not
switch providers at will.
·
State relay program administrators frequently are
approached about problems with the quality of Internet relay and VRS. However,
these governmental bodies neither oversee nor have any authority over
complaints received about Internet-based services because of technological
limitations in determining the location of Internet-based callers. New
mechanisms are needed to handle relay complaints at the federal level.
·
Despite the existence of two relay advisory
bodies at the federal level—the Interstate TRS Council, which advises the
National Exchange Carrier Association (NECA) on interstate cost recovery
issues, and the TRS Subcommittee of the Consumer Advisory Committee—there is no
formal federal mechanism that oversees interstate relay service quality or
provides ongoing advice to the FCC with respect to the quality of these
services. Consumers want a structured means of influencing the FCC process with
respect to issues of relay quality.
Other Factors
·
It is a challenge for the TRS regulations to
keep up with new technologies. Specifically, it often takes years for the FCC
to grant provider approval to implement a new technology. This prevents relay
consumers from taking advantage of relay innovations as soon as they become
available.
·
The FCC has decided not to compensate providers
for research and development for technologies that are not needed to meet the
agency’s minimum TRS standards. This can create a chilling effect on research
and development needed to achieve true functional equivalency, discourage
innovation, and prevent consumers from reaping the benefits of advanced
technologies that can better meet their telecommunications needs.
·
Attitudinal barriers that impede full
telecommunications access still exist, especially at police departments and
hospitals, where personnel seem unwilling to make their emergency services
accessible to consumers who use modern relay technologies. These entities do
not realize that the telecommunications access mandated by the
ADA
is a civil right.
·
For most relay services, the process of first
connecting to a CA and then connecting the second leg of the call to the
receiving party is not transparent to the call participants. Consumers would
prefer that there be automatic connections for all relay modalities, for both
incoming calls and outbound dialing.
·
Although some relay calls are made between
people with hearing or speech disabilities, most relay calls include at least
one hearing person. Often the experience of the hearing person to the call is
not fully considered in the planning of relay implementation. These needs must
be considered to ensure that the call flows as seamlessly and naturally as
possible, with few interruptions.
·
For a number of reasons, the telecommunications
needs of people who are deaf-blind still are not being met as well as they are
for other populations of relay users. First, TeleBrailles—devices that consist
of a TTY connected to a Braille keyboard—have gone out of production because of
their high cost (each device costs approximately $6,000) and low market demand.
Second, VRS is not accessible to deaf-blind people unless they have access to
costly equipment for receiving Braille output and unless VRS companies
cooperate in offering dual sign language/text services. Third, deaf-blind people
do not have access to pagers to facilitate their mobility.
·
Although access to 911 emergency assistance
through traditional TTY-based relay services has been relatively effective,
because relay services depend on third parties, it is not clear what would
happen if a pandemic broke out that threatened relay staffing. Consumers
believe that the telecommunications industry needs to prepare for such
contingencies, because another 15–20 years will pass before the third party to
relay calls can be eliminated entirely.
·
Significant relay innovation has originated in
state relay programs. For example, the provision of VRS, STS, and captioned
telephone service all began as state initiatives. Stakeholders raised concerns
about losing these local perspectives as the nation’s relay services migrate to
the interstate jurisdiction.
·
Sometimes businesses, such as airlines, request
people with hearing loss to use a direct TTY line instead of VRS. Stakeholders
expressed an interest in being able to choose how they communicate with
businesses and governmental agencies.
2. Key Stakeholder Recommendations
Implementation Issue: The laws governing relay
services have not been able to keep up with the fast pace of ever-changing
relay technologies.
The FCC must approve a new relay technology or service before
it can become eligible for reimbursement from the Interstate TRS Fund. Many
consumers feel that the process for granting such approval is too drawn out and
has been unfairly preventing consumers from benefiting from innovations until
long after they are technically feasible. The problem is that relay technology
is evolving at an unprecedented pace, which is being accelerated by the
migration from PSTN to Internet-based technologies. As a consequence,
technology has pushed ahead much faster than the law has allowed; one
stakeholder explained that there is a mismatch between the speed at which technology
is being developed and the pace at which the laws are amended. One recent
instance in which this occurred concerned video mail, a technology that enables
a hearing person to leave a video message through an interpreter for a VRS
recipient. Although this technology is the functional equivalent of voice mail,
it took over a year to get it approved by the FCC after the technology to
provide this feature became available.
Recommendation: The
FCC should accelerate approval for new relay technologies and should establish
clear guidelines to govern new technologies at the time they are approved. (The
latter concern grew out of events that occurred following approval for VRS,
when the lack of FCC standards resulted in several unfair marketing practices
later banned by the FCC.)
Recommendation: Rather than deal with new technologies on a piecemeal basis, the FCC should
look at the big picture and chart a forward-looking course for TRS over the
next 5–10 years that considers new mainstream technologies and that drives
decisions that respond to these innovations. The communication technology that
relay users need and want is melding with the technology desired by mainstream
consumers, such as videoconferencing, VoIP (Voice over Internet Protocol)
services, and enhanced multimedia that provides text and video. It is important
to get on the technology bandwagon, to ensure that people with disabilities
become players in the development of mainstream technologies.
Implementation Issue: A viable and stable
funding source for TRS is needed as telecommunications services migrate from
the PSTN to the Internet.
Under the
ADA
,
relay services are supported with funds that come from intrastate, interstate,
and international end user telecommunications revenues. As telephone users
migrate away from the traditional telephone network to the Internet, this
funding source is declining. The decreasing revenue base is accompanied by
unprecedented growth in relay services, brought on by new technologies.
Virginia
was the first state to pass legislation (effective
January 1, 2007
) that changes the funding mechanism for
state TRS services from a surcharge on landlines only to a surcharge on
landline and wireless telephone services, as well as cable, satellite, and VoIP
services. In addition, the U.S. Senate is considering legislation that would
require universal service contributions from these entities.
Recommendation: Congress and the FCC should consider regulatory or legislative actions that
include Internet-based providers in the categories of companies that must
contribute to state and interstate relay support to ensure the viability of
relay funding and to distribute costs fairly among all subscribers of
communication services.
Recommendation: The
FCC should develop a reliable and consistent funding methodology to ensure the
stability of VRS, as well as all other types of TRS. The funding mechanism
currently used by the FCC for interstate relay services—especially VRS—has been
in a state of flux since 2003.
Implementation Issue: Although VRS has become
extremely popular among people whose first or preferred language is sign
language, and Internet-based text relay has become popular among people who
enjoy its versatility and mobility, not all potential users of these services
are able to afford the high-speed broadband needed to use them.
Recommendation: Congress should amend the Communications Act or the FCC should initiate a rule
change regarding provisions governing universal access. As people with
disabilities migrate from the public switched telephone network to
Internet-based text and video communications, state utility regulators should
allow universal service subsidies that are used to defray the high costs of
telephone service for low-income people—such as subsidies available under the
Lifeline program (which provides a monthly discount for telephone service) or
the Link-Up program (which provides a discount for initial telephone connection
charges)—to help defray the costs of broadband service.
Implementation Issue: As the jurisdiction for
relay services shifts away from the state to the interstate arena, complaint
handling and oversight for these services must be redefined. Currently, most
businesses and consumers are not aware that states have no jurisdiction over
Internet-based relay services, and relay service complaints continue to come to
their state-based relay authorities.
Recommendation: The
FCC should supplement the current TRS complaint procedure, which requires
consumers to bring complaints to the states first and then—after 180 days—to
the FCC, with new procedures for Internet-based calls. This would be consistent
with the FCC’s new certification process for Internet-based and VRS providers.
Recommendation: Additional oversight of Internet-based relay services is needed, either through
a new structure at the FCC or through a new federal-level advisory body that
can monitor Internet relay activity and provide regular feedback to the FCC on
the need for revisions to the agency’s relay standards.
Recommendation: State relay administrators, state relay service providers, and other
telecommunications providers should educate businesses about how and where to
report Internet relay misuse. This can be done in part through programs such as
Maryland
’s relay partner program,
which educates businesses about the functions and purposes of relay services.
Recommendation: The
FCC should establish a mechanism whereby consumers can contact an
Internet-based relay provider when they have a complaint about that provider or
wish to report relay misuse. One way of enabling consumers to identify the
provider on any given relay call is to assign each provider a series of unique
numbers for each of its CAs. For example, Sprint could be given the 1000 series
of numbers, Verizon the 2000 series, MCI the 3000 series, and so on. That way,
the employer of every CA could be identified easily by the enforcing agency.
Implementation Issue: Despite improvements in
the percentage of individuals and businesses that accept relay calls, hang-ups
by businesses, and even by government agencies, are still common.
Since the inception of relay services, lack of awareness about
TRS has caused many businesses and individuals to hang up on relay calls,
believing them to be commercial solicitations. Over the past year or so, this
problem has been exacerbated by an onslaught of inappropriate or abusive
Internet-based relay calls. In addition to pranksters, the perpetrators often are
hearing individuals from other countries who make calls over Internet-based
relay services to con unsuspecting businesses into sending them products using
fraudulent credit cards. It has now become common for some sales establishments
that are afraid of being victimized to refuse relay calls; several of these
establishments have even requested that relay providers block all calls to
their numbers, a practice that the FCC has specifically prohibited. As a
consequence, relay consumers frequently find themselves in the difficult
position of having to plead with retail businesses simply to accept their
calls.
Recommendation: State
relay administrators, state relay service providers, and other
telecommunications carriers should identify and implement methods to educate
the general public and, in particular, business establishments about the purpose
and function of relay services to put an end to the resistance coming from the
business community.
Recommendation: Greater
efforts need to be made to prosecute individuals who misuse Internet relay
services. In the nonrelay context, when fraud is committed by telephone, law
enforcement officials can obtain subpoenas that allow them to secure the
telephone records of the alleged perpetrators. The same can be done here. The
FCC currently has an open rulemaking proceeding to explore the most effective ways
of curbing Internet relay misuse.
Recommendation: Technical
solutions are needed to automate the identification of the location of someone
initiating an Internet-based relay call. This will help deter abuse, facilitate
calls to 911, and facilitate accurate billing. The FCC should track these
technical developments so they can be implemented as this function becomes
available.
Implementation Issue: No common strategy yet
exists for the handling of emergency calls made using Internet relay or VRS.
Recommendation: The
FCC has an open proceeding to determine how VRS and Internet text-based
providers can best handle incoming emergency calls. At the same time, the
Department of Transportation (DOT) has been designated the point agency for the
development and testing of next-generation technology for 911. The two agencies
should coordinate with one another to ensure that relay providers are able to
accept and swiftly connect incoming calls with appropriate public safety
answering points.
[10]
Implementation Issue: Few state equipment
distribution programs have modernized their equipment to keep up with
technological innovations.
Various states have programs through which they distribute
specialized customer premises equipment (SCPE) designed to facilitate telephone
communication by people with disabilities. Some of these programs make loans
for equipment, others distribute vouchers, and still others grant recipients
outright ownership of the devices. Traditionally, the equipment given out by
these programs has been geared largely to address the needs of TRS consumers.
While the programs have successfully distributed SCPE to hundreds of thousands
of people with disabilities, restrictions in their scope are keeping most of
these programs from meeting the communications needs of these people. The vast
majority of states continue to offer only legacy technologies that rely on the
landline network and that are becoming obsolete in a rapidly changing
communications environment. This excludes all wireless devices, including mobile
phones and pagers. Many programs also fail to offer equipment needed to use STS
relay, such as artificial larynxes or biofeedback devices. In addition,
TeleBrailles needed by deaf-blind relay users are often not available.
Similarly, the programs rarely pay for computers or computer-like equipment.
Thus, a deaf person with low vision who wants to use VRS, but needs a larger
screen to do so, is not likely to be able to acquire that screen through these
programs. To make matters worse, some states require recipients to keep their
equipment for at least five years before they are allowed to acquire new
equipment. The consequences of this policy are severe. For example, an
individual given a TTY just two years ago would be unable to exchange this
device for a captioned telephone, even if the latter better meets his or her
telecommunications needs.
Recommendation: State
equipment distribution programs need to take a harder look at the needs of the
consumers they serve. These programs should reevaluate the scope of their
offerings in light of new computer, electronic, and Internet-based
technologies, and should allow consumers to trade in their equipment sooner.
One state that has already made some of these changes is
Missouri
;
in 2000, it began distributing adaptive computer equipment for access to the
Internet and e-mail. Finally, state programs should coordinate with one another
to ensure that they are consistent and uniform in providing the best options
for relay consumers.
Recommendation: The
introduction of new technologies has expanded both the need and the role of
equipment distribution programs. Now, along with relay users, other people with
disabilities often need specialized equipment to obtain access to technology
and telecommunications. As a result more people are now competing for limited
state funds, and new funding sources need to be identified. Disability
advocates are interested in making universal service funding available to
subsidize the cost of the expensive SCPE that is needed by people with
disabilities to access broadband technologies. Such “broadband bucks” would allow these individuals to
select the accessible equipment they need to accommodate their specific
disabilities.
Implementation Issue: Relay users still find
that businesses and other individuals are reluctant to use TRS to return their
calls.
More than a decade and a half after passage of the
ADA
,
relay users still find that receiving return calls through TRS remains a
problem. This situation is especially the case when it comes to potential
employers, who tend not to want to bother when they see “To contact me, call
this number.” As an access gateway to all PSTN-based relay services, 711 relay
dialing has improved significantly the rate of traditional TRS return calls,
but even this access code has not eradicated the problem. To exacerbate
matters, paper and electronic forms and applications typically do not provide
room for a relay number (even if it is only three digits); these forms
typically only have a single space for the applicant’s 10-digit phone number.
Recommendation: An
FCC rule change may be needed to require connections for outgoing and incoming
relay calls that are automated to the same extent as those for conventional
voice telephone calls. The technology for automatic connections through all
relay modalities exists but is not mandated by the FCC.
[11]
Implementation Issue: Greater efforts need to
be made to provide STS relay users with information and training on STS. In
part, this is because unlike the culturally Deaf community, which uses a number
of networks for the distribution and flow of information, individuals with
speech disabilities often are not members of disability organizations where
they can distribute or acquire this information. Although STS relay services
are mandated by the FCC, use of these services over the past year declined at a
rate of 2.4 minutes per day.
Recommendation: The underutilization of STS relay
services can be reversed by identifying and
training potential STS users. Training of this type, which typically takes
three hours in the person’s home, must be done on a one-on-one basis. (Minnesota and California are two
states that are conducting such training.
[12]
)
Recommendation: States
should release information about STS call volume so consumers can determine
where outreach is needed. In the past, some states have been reluctant to give
out this information; for example, in a 2006 call volume study, only 26 states
provided this information.
Recommendation: The
telecommunications companies could establish a national nonprofit organization
to advance the use of STS.
[13]
Implementation Issue: It is not clear whether
relay calls using the services and skills of more than one type of
communications assistant are eligible for compensation from state and
interstate relay funds.
In recent years, innovative types of relay technologies have
made it possible for individuals with disabilities who use one type of relay to
call people using other types of relay or text devices. For example, a
captioned telephone user now can speak to a TTY user, and an STS user can
converse with a VRS user. In these instances, more than one CA, each of whom
has different skill sets, is needed to assist in relaying the call. Similarly,
on occasion, more than one CA will be needed to accommodate a single individual’s
disability during a relay call. For example, a person who is deaf-blind may
wish to use VRS to sign to someone else but may need to receive conversation
back in Braille (using a TTY connected to a Braille display). In this instance,
one CA would need to perform sign language interpreting while a second would
need to type back the responses.
Virginia
,
Maryland
, and
Massachusetts
are three states that provide reimbursement for these and other multiple CA
calls.
Maryland
indicated that it
will also pay for the call if one of the relay modalities used is interstate,
such as interstate captioned telephone service.
Recommendation: The
FCC should clarify that all relay calls must be handled and are eligible for
compensation from the Interstate TRS Fund, even when more than one relay
modality is needed to complete the call.
Implementation Issue: Although captioned
telephone relay services are the only means of providing functionally
equivalent relay services for many individuals with hearing loss, these
services are not available to the vast majority of potential users.
As a group, individuals who are hard of hearing or
late-deafened have not benefited from the relay mandates of Title IV to the
same extent as their peers who are culturally Deaf. There are a few reasons for
this. First, these individuals typically are not familiar with TTYs; they are
typically accustomed to using voice telephones. Second, until recently, most
relay marketing and service features have focused on the needs of the culturally
Deaf community. Although the FCC’s Title IV rules require voice carryover
(VCO)—which allows a hard-of-hearing person to use his or her own voice to
speak and to use the CA to type back responses from the other person—many hard-of-hearing
or late-deafened individuals do not understand how to use this relay feature.
Captioned telephone service finally offers individuals with hearing loss the
opportunity to use relay services with equipment that is just like the
conventional voice telephones that many of these people are familiar with.
Sixty percent of current captioned telephone users have indicated that they did
not use relay services before this technology came along. Thirty-eight to 40
percent of these people are over the age of 65. However, captioned telephone
relay services are not mandated by the FCC. As a consequence, many states do
not offer these services and, if they do, they limit the number of residents
who can participate in their captioned telephone program. At this time, there
is no Internet-based version of captioned telephone relay service available to
the public.
Recommendation: Petitions
requesting the FCC to mandate captioned telephone relay service and approve an
Internet version of this service (filed on
October 31, 2005
) should be granted
[14]
because a far greater number of individuals will be able to receive
functionally equivalent telephone services. Internet-based captioned telephone
relay services also would eliminate the need for separate captioned telephone equipment,
because users simply would be able to install software on their computers to
access these services.
Implementation Issue: Stakeholders raised
concerns about the extent to which testing and assessments are being conducted
by Internet-based relay providers to ensure the high quality of their CAs.
Among other things, stakeholders raised concerns about the voicing quality of
video interpreters.
Recommendation: The
FCC should issue standards to ensure standard interpreter qualifications across
providers. One way of evaluating is to use qualified interpreters and deaf
relay consumers to assess the ability of video relay interpreters to
effectively facilitate communication. While some, if not most, VRS providers
already require compliance with minimum certification standards, or test
interpreters to assess the effectiveness of their signing, voice presentation,
finger spelling, and so on, FCC standards are needed to ensure consistency. VRS
stakeholders say it would be helpful as well for them to be able to receive
some type of feedback during calls (for example, through captions) that would
let them know what the interpreters are voicing, to build trust in the
interpreter’s ability.
Implementation Issue: Although the
ADA
has various requirements for public TTYs, public VRS stations are rare. In
mainstream locations, such as public libraries, the few attempts at installing
public video stations have been unsuccessful either because there is minimum “deaf
traffic” in these locations or because people are not aware that these public
stations exist.
Recommendation: Vendors should install videophone equipment in public areas frequently visited
by people who are deaf, such as in dormitories and activity rooms in
residential schools for the deaf, vocational rehabilitation offices, and
community service centers for people who are deaf (such as the California
Coalition of Agencies Serving the Deaf). At the latter sites, people who are
deaf or hard of hearing also can make arrangements to acquire
telecommunications equipment through state distribution programs. At all the
locations, people who cannot afford the high-speed connectivity needed for
direct access to videophones can follow up on business related to the services
provided at these locations, seek advocacy services related to ADA-related
complaints, or use the phones for other purposes.
Implementation Issue: It is difficult for
hearing individuals to make calls using Internet relay and VRS, because the
dynamic IP addresses used for Internet communications constantly change.
Although some VRS providers use proxy numbers that are mapped to dynamic IP
addresses, these numbers cannot be used from one provider to the next.
Recommendation: The
FCC should approve a global database for proxy numbers. Each Internet-based
relay customer should be given a single number that can be used to receive
Internet-based calls through all relay providers. Such a universal approach to
numbering—by which the assigned number would be neutral with respect to both
the provider and the equipment the customer uses—is commonplace for
conventional telephone users. Although telephone subscribers have different
local exchange companies that provide their service and telephone wiring, the
telephone number that each person is assigned is used to receive calls through
any telephone company. Universal numbering is especially important in
emergencies such as hurricanes, where consumers cannot rely on a single
provider to receive incoming calls. The FCC currently has an open rulemaking
proceeding to address the need for a global database of proxy numbers that can
be used to connect hearing individuals to their dynamic IP or VRS calling
destinations.
Implementation Issue: Businesses and governmental
agencies frequently use firewalls for security, which can inadvertently block
VRS calls. Sometimes hotels or corporations are not willing to open up the
ports needed for employees or visitors to have video communication.
Recommendation: DOJ, the Access Board, and
agencies concerned with digital and communication security should amend the ADA
Title II and Title III/ADA Accessibility Guidelines (ADAAG) to address the
problem of the use of firewalls for security, which can inadvertently block VRS
calls. Businesses and government agencies need to have an accessibility guideline that requires them to make
video communications possible when they use firewalls. If there is an ADAAG
guideline on this matter, technology will be designed to fix this dilemma. In
the meantime, employers should obtain a separate broadband line that can be
opened for VRS users.
Implementation Issue: People who are deaf-blind
are unable to type quickly and tend to have greater lags in response time
during their TRS calls. Hearing parties to the call can grow impatient when
this occurs.
Recommendation: State
relay administrators and relay service providers should instruct CAs to be more patient with deaf-blind
callers, who, because they use refreshable Braille, often read more slowly than
other relay users. In addition, CAs should be permitted to instruct call
recipients about the caller’s needs and the fact that the call may take a bit
longer to complete. Technologies that may enable tactile communication over the
Internet through robots are being explored and could facilitate access in the future
for people who are deaf-blind.
3. Topics for Further Research
Market Research on Relay Use Patterns
Relay consumers must help lead technological advances by
establishing core guiding principles and working with technology companies to
plan out the future of relay business. To achieve this end, additional market
research on relay usage patterns is necessary. This research should focus on
the types of relays people use, why they use them, why they shift from one
relay modality to another, and so on. The goal is to ensure that consumers with
disabilities stay ahead of, not behind, the technology curve.
E. Disability Community
[15]
1. Key Implementation Issues and
Discussion
People with Hidden Disabilities
A key topic of discussion was the
ADA
implementation issues facing people with hidden disabilities, such as
psychiatric disabilities, learning disabilities, epilepsy, and multiple
chemical sensitivities. One participant said that the issue of whether to
disclose a disability in an employment situation presents a real dilemma for
people with hidden disabilities, especially if stigma is commonly associated
with the disability. Even when a person with a disability needs a minor
reasonable accommodation, he or she sometimes fears that disclosure may result
in discrimination. Other participants discussed attitudinal barriers that
people with hidden disabilities face, including the many inappropriate comments
they may endure if their disabilities become known.
Advocates for people with psychiatric disabilities stated that
the
ADA
has not worked well for
this group. Many individuals with psychiatric disabilities are not aware of the
ADA
, according to various
stakeholders, or are not aware that it applies to them. Similarly, from various
stakeholder perspectives, covered entities are unaware and uneducated about how
to ensure that the rights of people with psychiatric disabilities are
protected.
While the courts are hostile to the
ADA
generally, according to some stakeholders, they are especially so with respect
to people with psychiatric disabilities. This problem is rooted in stereotypes
and incorrect assumptions about risks, dangers, and capacities. Several people
called for an education campaign for people with psychiatric disabilities
because they need to be aware that the
ADA
does apply to them, and need to know how they can use it.
Covered entities have a similar need for education, according
to various people, including police who need education on appropriate use of
restraints with people with many types of disabilities, and especially people
with psychiatric disabilities. Another participant pointed out that people with
psychiatric disabilities have “really gotten clobbered” in the media, which
frequently portrays members of the group in a stereotypical manner that
encourages negative attitudes and perceptions. Another person added that the
group has seen “horrible pushback” by society against their community and
against the recovery model for people with psychiatric disabilities. Many
people noted that serious and damaging perception problems lead people to
assume that everyone with a psychiatric disability is a danger unless he or she
is on medication. Even then, the fact that a person uses medication can become
a central issue and the basis for discrimination.
Another participant said that the
ADA
has not worked well in the area of employment for people with learning
disabilities, who are still largely unemployed or underemployed. The perception
of the difficulty involved in tailoring accommodations for people with learning
disabilities could explain this, according to several people. The Supreme Court’s
ruling in the Sutton case has had a
very significant impact on people whose disability is mitigated by equipment or
medication, including those with psychiatric and other hidden disabilities.
Another person discussed how
ADA
implementation has always been very weak in dealing with the issue of multiple
chemical sensitivities, because covered entities do not recognize the
impairment and are generally unwilling to provide appropriate accommodations
when they become aware. Additional discussion took place about how retailers
often fail to consider accessibility for people with nonmobility disabilities.
People with Visual and Hearing Impairments
People with visual and hearing impairments still face
particular
ADA
implementation
challenges. Representatives of organizations of people with visual impairments
pointed out that one of the most underimplemented provisions of the
ADA
is the requirement that covered entities provide alternative communication
formats. They noted that businesses and others assume that providing
information and material in alternative formats will impose an undue burden
and, therefore, is not required. Equally frequently, covered entities simply are
unaware that the
ADA
requires
materials and information be provided in alternative formats.
Similarly, municipal officials in charge of the public rights
of way, such as streets and sidewalks, assume that they have met their
ADA
obligations if they have installed curb ramps. Public entities are not aware of
problems faced by people who do not use a wheelchair, or the liability concerns
raised by their failure to be aware of other disabilities.
Various stakeholders mentioned that entities that operate Web
sites, for example, want to know what the
ADA
requires rather than creating accessible sites simply because it is a good
business practice.
Several stakeholders mentioned that some employers still fail
to allow service animals to accompany people with disabilities, which indicates
that basic
ADA
information is not
reaching the employer community.
Representatives from the Deaf community expressed continued
frustration over lack of communication access. One person pointed out that it
can still be difficult to telephone a doctor or discuss critical health issues
and stressed the need for continued, robust education about the access needs
and rights of individuals who are Deaf.
Core
ADA
Issues:
ADA
Definition of
Disability, the Olmstead Decision,
and the Persistence of Stereotyping Attitudes About Disability
A significant and central theme identified by many
stakeholders is the problems that have arisen from the U.S. Supreme Court’s
narrowing of the
ADA
definition of
disability, which has caused a serious “rift” in the statute. One person
expressed a grave concern about how the current definition disadvantages people
with “episodic disabilities.”
Many saw poor implementation of Olmstead as a significant
ADA
challenge. A number of participants discussed how states are not meeting the
deinstitutionalization mandate of the Olmstead case and how difficult it has been in many locales to sustain momentum for
efforts that could lead to meaningful community placement outcomes. Lack of
funding and lack of political will contribute to this stagnation, according to
some.
Others discussed the persistence of negative attitudes about
people with disabilities. One participant described a discussion in which the
idea of using the contracting power of the government to spur the hiring of
people with disabilities was met with uninformed and stereotypical ideas about
the productivity of people with disabilities. Other participants noted that
popular language continues to include expressions that are disrespectful of
people with disabilities.
Employment
Employment issues were a key topic of discussion at the
disability community stakeholder dialogues. Lack of accommodations in the
workplace was a significant issue for many participants. One person suggested
promoting a new approach to understanding reasonable accommodation—emphasizing
universal design and ergonomics instead of the exclusive use of the diagnostic
and medical model in employment.
Another major issue raised by some stakeholders is the lack of
bona fide employment data for people with disabilities. One person felt that
the emphasis on protecting employee privacy prevented entities from collecting
concrete information about workers with disabilities and employers’ track
record and performance in hiring and retaining people with disabilities. Others
felt strongly that people with disabilities have not been encouraged to answer
employment questionnaires and voluntarily provide information about employment
and accommodation. One stakeholder said that employment data are critically
important to show that people with disabilities already are working and that
their presence in the workplace is not a burden for employers. This stakeholder
felt that it is necessary to find ways to obtain this information without
forcing people with disabilities into a medical model, or requiring a diagnosis
or voluntary self-identification.
Access to Public Accommodations and Transportation
Several stakeholders discussed retailers who fail to provide
access, such as accessible dressing rooms, and Title III entities that think a
back door entry constitutes “appropriate access.” One participant mentioned the
paradox of paratransit: If it works well, demand grows, thus creating funding
and management challenges for the transit district. Others mentioned various
large and small transportation barriers that people with disabilities face. For
example, numerous cultural or attitudinal barriers exist in certain areas of
private transportation, especially taxi service. Stakeholders mentioned that
cab drivers sometimes refuse to accept service animals. One participant said
that he has been made to feel as though he is troublesome when the fixed-route
bus driver must spend time securing his wheelchair or when a bus passes him by
with the excuse that the lift is not working. Another stakeholder mentioned
that there is a need to reduce costs for attendants who accompany people with
disabilities during paratransit rides as well as in other situations such as at
entertainment facilities. In some cases, these added costs prevent the person
from attending the function or using the transit service.
There was significant discussion about the ongoing problem
some people with disabilities face when they seek appropriate accommodations
from colleges and universities. These entities do not always appear to
understand their
ADA
obligations
and responsibilities, which can result in limited educational choices and
opportunities for students with disabilities.
Training
Stakeholders agreed that there is a need for more training of
people with disabilities. One person said, “Only the protected class can be
relied on to truly enforce the law and ensure its continued implementation.”
They noted that many people with disabilities do not know about the
ADA
or, if they have heard of the law, they do not understand how it affects them.
Others said that some people with disabilities think they understand the law
but actually are not well-versed in its provisions, so they have inappropriate
expectations or provide poor advice. Several stakeholders noted that training
should be targeted to specific groups (e.g., youth, people with hidden
disabilities) so it will be perceived as relevant and they will be encouraged
to use it on their own behalf and to advocate for others.
Enforcement
Enforcement was a significant topic of discussion.
Participants were unanimous in their observation that federal enforcement,
particularly of Title III, has been weak and ineffective. The lack of damages
under Title III, in their view, has created a disincentive for some public
accommodations to remove architectural barriers or take other steps to become
accessible. They noted that the courts have further limited the way the
ADA
can be used in various contexts, including employment and when public
accommodations have failed to become accessible or provide auxiliary aids or
services. Various stakeholders noted that weak or incomplete enforcement of
accessibility requirements on the state and local levels is, in part, a result
of poorly trained building inspection officials, architects, and other building
professionals.
Rural Issues
Disability community stakeholders across all the dialogues
discussed at great length the unique
ADA
implementation challenges people in rural areas face. An overarching problem
stakeholders described is the lack of understanding and awareness of the
ADA
and access on the part of local governments and businesses in rural areas. They
noted that a backlash is likely when people in small towns and rural areas
raise the issue of poor access or file a complaint to combat the general lack
of access. A common theme among rural stakeholders was that people are
reluctant to rock the boat in a place where everyone knows one another. Some
participants discussed how the lack of access is perpetuated, because the
community can label a person a troublemaker if he or she raises an
ADA
complaint. Also, if a covered entity provides access or an accommodation for a
person with one type of disability, often nothing will be provided for people
with other requirements. Where accommodations do exist, there is little or no
signage or advertising signifying its availability. Some people noted that, as
a practical matter, many small towns have older buildings that present very
difficult accessibility problems. When attempts are made in these situations to
provide accessibility, they often are inadequate, ineffective, and poorly
maintained.
Many stakeholders from rural areas discussed the impact of the
lack of government infrastructure available in urban areas. For example, one
person said, “Small cities equal small funding,” especially when locales depend
on a local tax base to fund capital projects. Several people mentioned that
rural towns and small cities tend to have very small building code inspection
departments, often consisting of only one person, and few resources for
addressing disability access. Another serious problem is that low-density areas
have little or no public transportation, which makes it very difficult for some
people with disabilities to travel to school, jobs, and community activities,
and to conduct business in their communities.
Others mentioned specific
ADA
enforcement problems. Several discussed how difficult it is to use litigation
effectively in rural areas. Some stated that there are too few attorneys and
almost no one who is qualified or willing to take a case on a contingency
basis. In rural areas, lack of
ADA
training for attorneys is part of the problem. As several people noted, if DOJ
won’t investigate a complaint, and if a person cannot find legal
representation, then people with disabilities effectively have no
ADA
rights. Furthermore, several people noted that attorneys in rural areas are
reluctant to file a lawsuit against a party they perceive as a neighbor or a
friend.
Various strategies were suggested to address these issues.
Several people said they have found it effective when individuals who do not
live in the community either bring or follow up on compliance complaints. One
example from
California
involved
a rural independent living center that contacted CalTrans, the state
transportation agency, about the very slow pace of improved bus stops and
roadside access for which the county in question had received funding. CalTrans
contacted the county, conducted a review of what had been done, audited the
spending records, and brought in outside monitoring to implement the funded
program more vigorously. Advocates stressed the importance of devising
strategies that follow the money and that encourage locals and outsiders to
work together on advocacy.
Several stakeholders noted that people with disabilities in
rural areas also have seen some
ADA
successes. The availability of TTYs in hospitals was an advance hailed by one
person. Another described an accessible homeless shelter that was built with
community development block grant funds in a small city in rural
California
.
2. Key Stakeholder Recommendations
Implementation Issue: Few people with
psychiatric disabilities are aware that they are covered by the
ADA
.
Recommendation: Federal agencies that have
ADA
implementation and enforcement roles should join in a collaborative effort to
fund a substantial nationwide
ADA
training initiative for people with disabilities. (See similar recommendation
in Section C – Public Accommodations.)
Implementation Issue: Some public safety
agencies are not aware that the
ADA
confers civil rights on people with disabilities or how to relate appropriately
with individuals with disabilities, especially psychiatric disabilities.
Recommendation: Key
organizations concerned with disability advocacy and policy (for example, DOJ,
NDRN, and mental health consumer organizations) should create training and
informational materials that provide practical, realistic information and
guidance for specific public safety entities (e.g., police, sheriffs,
firefighters) and that dispel stereotypes. The key organizations should
recommend policies that the entities should adopt to guide their conduct in
situations involving individuals with disabilities, especially psychiatric
disabilities. Policy guidelines must acknowledge that standards for behavior
and conduct will differ according to the context and the situation, but a
process must be set forth for determining whether a risk exists and whether an
accommodation can be provided that will mitigate the risk. (See similar
recommendation in Section C – Public Accommodations.)
Implementation Issue: People with disabilities
from small towns and rural areas sometimes experience a backlash if they
challenge the general lack of access, making it difficult or impossible to
implement and enforce the
ADA
.
Recommendation: DOJ
should step up its enforcement efforts in rural communities. Using Project
Civic Access as a model, DOJ should initiate compliance activities tailored to
the needs and stated goals of the disability communities in small towns and
rural areas.
Recommendation: Federal agencies charged with ADA implementation and enforcement should create
a rural monitoring and enforcement project in collaboration with regional ADA
& IT Technical Assistance Centers, state Protection and Advocacy
organizations, local disability organizations, individual leaders with
disabilities, and civic and community leaders. The goal would be to identify
and test effective methods for achieving
ADA
implementation in small towns and rural areas that could be publicized and
replicated.
Recommendation:
Regional
ADA & IT
Technical
Assistance
Centers
and state Protection and Advocacy organizations should develop a model project
by collaborating with disability organizations and individuals with
disabilities from selected small towns and rural areas to develop an education
and information campaign that promotes public awareness and accessibility. One
key strategy would be to distribute targeted ADA materials to the public—for
example, libraries, job training centers, hiring programs, and unions—and
include ADA information with local business tax invoices, and with all business
transactions involving licensing, building and occupancy permits, business
permits, and inspections. (See related recommendations for urban areas in the
section on Title III.)
(NOTE: See sections on Title I and III for additional
recommendations that address implementation issues raised during the disability
community dialogues.)
F. Observations by Stakeholders
from Diverse Cultures
1. Key Implementation Issues and
Discussion
Over one-third of the participants in the stakeholder
dialogues were from culturally diverse communities in rural areas or large
cities. These individuals shared their perspectives on
ADA
implementation in employment, transportation, telecommunications, by public
entities and public accommodations. People with disabilities from diverse
backgrounds who lived in predominantly homogeneous areas spoke of accessibility
issues in their communities, particularly the lack of access provided by small
businesses and community service agencies in
Chicago
’s
Latino neighborhoods and
San Francisco
’s
predominantly Asian and Latino neighborhoods.
Comments about the lack of compliance by small businesses in
diverse neighborhoods mirrored the comments about small businesses in general.
Stakeholders noted that some small businesses in diverse communities fail to
implement the
ADA
for the same
reasons many small businesses fail to do so: ignorance of the law, concerns
about the cost of barrier removal, and the perception that people with
disabilities do not frequent their establishments.
An important distinction emphasized by stakeholders from
diverse cultures was that people with disabilities sometimes confront an
additional barrier to access in culturally diverse communities: different
cultural attitudes about disability.
Different Cultural Attitudes About Disability
Stakeholders from diverse cultures noted that underlying the
lack of compliance with the
ADA
in
all communities are differing cultural attitudes toward disability. In
culturally diverse communities, lack of compliance also may be due in part to
the small number of people from those communities who understand different
cultural attitudes and can respond with appropriate information and technical
assistance. Stakeholders pointed out that individuals from ethnically diverse
cultures are underrepresented in organizations such as independent living
centers (ILCs), ADA & IT Technical Assistance Centers, and special
education departments—groups that are primary providers of information about
disability and the ADA.
Experience among the stakeholders correlates somewhat with
research showing that when a person has previous experiences with people with
disabilities—for example, having a family member, employee, or friend with a
disability—progress toward compliance is more likely.
Lack of Culturally Competent
ADA
Information
Stakeholders noted that although DOJ publishes much of its
information and technical assistance materials in multiple languages, the
materials do not demonstrate cultural competence, nor are they delivered in a
culturally competent manner.
Lack of Leadership
Stakeholders from culturally diverse populations reported that
their leaders have not embraced disability rights, nor have significant numbers
of people with disabilities in their communities developed into leaders.
Increased
ADA
implementation
requires leaders who are disability advocates and who promote and model accessibility.
Noncompliance by Community Organizations
Stakeholders gave a number of examples of community-based
organizations serving culturally diverse communities that are not
architecturally accessible or do not make programmatic accommodations for their
constituents with disabilities. For example, an immigration resource center
turned away a deaf client rather than provide an interpreter, and a mental
health clinic in a Latino neighborhood in
Chicago
remains inaccessible to people using wheelchairs. Unfortunately, according to
the stakeholders, these organizations do not understand that their failure to
accommodate people with disabilities who seek their services erects rather than
alleviates social barriers.
2. Key Stakeholder Recommendations
Implementation Issue: Many small businesses in
culturally diverse communities have not complied with the
ADA
.
Recommendation: DOJ
should dedicate additional resources to develop culturally competent
information materials on the
ADA
and should support development of culturally competent outreach activities.
Recommendation: Disability
advocates associated with local Independent Living Centers and other disability
organizations should initiate contact with leaders in the community and discuss
local needs from all perspectives.
Recommendation: Disability advocates, with the assistance of local leaders, should contact
local chambers of commerce, merchant associations, and social service clubs in
their communities and build partnerships for outreach and education.
Recommendation: The National Institute on Disability and Rehabilitation
Research should establish a program modeled on the regional ADA & IT
Centers but focused on culturally competent outreach and technical assistance
to culturally diverse communities. The goal of these new centers would be to
enhance culturally diverse covered entities’ capacity to implement the
ADA
.
With support from and collaboration with local community leaders and
organizations, the centers would conduct outreach and provide technical assistance,
information, and training to small businesses and organizations in their
project area.
Recommendation: In
conducting outreach to culturally diverse communities, disability advocates and
organizations should use popular local media outlets that target those
communities.
Implementation Issue: It may be financially
prohibitive for some small businesses to remove physical barriers.
Recommendation: Key
federal agencies and private community development organizations should convene
an experts meeting to explore
methods for using various sources of community development funding—such as the
community investment tax, SBA loans, FEMA disaster relief funding, and
community development block grants—to help bring about
ADA
compliance changes. This could be accomplished by requiring
ADA
compliance as a term and condition of funding, which would be supported with
some financial help from the funding agency toward achieving the required
accessibility features and by dedicating specific amounts of money from
development funds to accomplish high-priority barrier-removal projects in the
target communities.
Implementation Issue: Implementation in a
culturally diverse manner that is sensitive to, and respectful of, cultural
traditions is hampered by the lack of inclusion of people from diverse racial
and ethnic backgrounds among the local leadership.
Recommendation: The
leaders of local
Independent
Living
Centers
and other disability
organizations should seek out leaders in culturally diverse neighborhoods to
hold discussions on
ADA
implementation and to understand the needs of citizens and businesses. The
objective is to raise awareness about important cultural traditions that may
affect perceptions of disability; to inform leaders about the benefits of the
ADA
;
and to build partnerships that provide mutual benefit for the disability and
culturally diverse communities. The goals are for local leaders to demonstrate
that the
ADA
can be implemented in
a meaningful way in all communities, to promote implementation, and to serve as
a model for others.
Recommendation:
Local
Independent
Living
Centers
and other disability
organizations should seek out individuals from culturally diverse backgrounds to
mentor people with disabilities.
Recommendation: For
ADA
implementation to remain a
priority in the community, disability advocates must make regular informational
visits to state and regional public office holders, especially caucuses
dedicated to specific diverse communities.
Recommendation: Local
partnerships made up of community disability groups, local business
associations, and elected officials should regularly recognize entities that
have been especially successful at achieving architectural and programmatic
access by publishing information about them on community Web sites and in
publications, and by honoring them at public events attended by their peers.
G. Judicial Stakeholders
Judicial focus groups were held
November 15, 2005
, and
March 28, 2006
, with participants recruited from among
state judges who were taking courses at the National Judicial College (NJC) in
Reno
,
Nevada
. Since the goal was to obtain input
from a variety of states and from course participants who presided over a
general civil jurisdiction court that would give them the opportunity to see
disability rights cases, focus group participants were recruited from among judges
undertaking training on “First Amendment Media Issues” and other general
interest courses.
[16]
(See Appendix D for a discussion of focus group methodology.)
1. Participants
Eleven participants from nine states signed up and took part
in the two focus groups. They included state judges from
North
Dakota
,
Indiana
,
Louisiana
,
Pennsylvania
,
Kentucky
, and
Oklahoma
.
One participant was an administrative judge in the Department of Defense
operating out of
Virginia
, one
was an administrative judge for the Department of Motor Vehicles (DMV) in
Nevada
,
and another was an agency judge who heard occupational work cases in
Ohio
.
The participants came from courts in such busy urban centers as
Philadelphia
and from large rural areas in which the judge is required to travel from
courthouse to courthouse. The participants represented a wide variety of
benches, from high-volume municipal courts to courts of general civil
jurisdiction and courts of common pleas (general jurisdiction including
criminal and civil). Some participants had practiced law for more than 25 years
before their appointment to the bench, and a number of participants had many
years of experience on the bench “in anything from murder to medical malpractice.”
One participant had graduated only five years earlier, and another continued to
maintain a private practice in addition to sitting as a municipal judge
(permitted in his state). There was no representative from either
California
or
New York
. There was only one
female participant, although various races were represented.
An evaluation form administered to the judges at the focus
group’s conclusion reflected interest in and openness to disability rights law
from every participant. When asked why he or she chose to attend the focus
group, one participant wrote, “I think disability rights is a very important
area. Anything involving the law and its implementation should be of concern to
judges.” Another participant specifically mentioned his interest in the
ADA
’s
application in the area of access to courts. One came “to share information and
experiences and receive information concerning disability rights,” while
another admitted that “I know very little about the rights of disabled
citizens.”
2. Discussion
Participant self-introduction consisting of name, type of
bench, and areas and years of experience in practice and on the bench
The participants took it upon themselves to establish from the
beginning their base experience with the
ADA
.
Most participants indicated that they had no direct experience with the law and
had never had to handle an
ADA
case, in practice or on the bench. As one participant said, “I have never had
to implement, supervise, or manage [the
ADA
]
or deal with applying it judicially.” Everyone had heard of the
ADA
and associated it with physical accessibility and disability rights. One judge
said that even though he had not heard any
ADA
cases, he had tried as a private attorney to get up to speed on the law when it
came into force, because he had anticipated a huge impact in the small rural
communities that he served. All the participants who mentioned the
accessibility features of their court seemed to feel a certain pride in the
fact, and throughout the focus group the participants reiterated their interest
in learning more about the
ADA
.
A couple of participants said they had gleaned some
ADA
knowledge from work experience before they became judges. For example, one
participant had worked with DOED and DOL, and had been involved with a
reauthorization of the Individuals with Disabilities Education Act (IDEA).
Another participant said that at one time he was on a list of judges who could
serve as impartial IDEA hearing officers.
Case management and general bench procedures
All the participants heard cases through from beginning to end
(none functioned as a pure motions judge), so everyone had to deal with case
management techniques and tracking cases. As the chief judge of an urban court,
one participant estimated that he had 1,000 cases of all kinds in his courts at
any one time, with 300–400 tort cases alone. One participant said he heard
30–40 cases a day in municipal court, and jury trials were to be transferred to
district courts within 28 days.
Most of the judges said they worked in a unified state system
in which all state court dockets are expected to adhere to strict timelines for
being heard and given a disposition. Some of the centralized systems had
specific deadlines for specific types of cases, and others required individual
courts to manage their case timelines in accordance with a master calendar. One
judge did not come from a state with a unified system; he is supposed to adhere
to general standards (e.g., hearings are to be heard “expeditiously”), but he
is not given explicit timelines for hearing and running categories of cases.
How participants typically familiarized themselves when confronted with new legal issues on the bench
All the participants said they were responsible for a docket
that was broad enough to include areas of law that were unfamiliar to them.
There was general concurrence that in such an event, they rely first on the
lawyers who are responsible for briefing the issues but then also use their law
clerks and may check the law on their own, if necessary. Depending on the
nature of their bench practice (e.g., very rural or administrative), some
participants did not have law clerks. One participant was careful to clarify
that while he could check the law as a judge, he has to rely on plaintiff and
defense lawyers to inform him of the issues and the relevant law, especially in
an unfamiliar area, and his main focus is on applying relevant law to the
facts. In other words, attorneys are the front line for judges to obtain legal
knowledge in new areas of law.
Substantive knowledge of and experience with disability
rights cases
The
ADA
was the
predominantly recognized disability rights law. The participants also
recognized IDEA when it was mentioned, but many seemed wholly unfamiliar with
Section 504 of the 1973 Rehabilitation Act (Section 504) when it was brought up
by the participant who had worked in DOED and DOL. When asked specifically
about the context in which they were aware of disability rights laws,
participants gave broad answers rather than particular areas of application
such as employment, public accommodations, or access to public services. One
participant said he saw disability or injury raised as a defense when an
occupational licensee was accused of not doing his job or failing to perform
his contract. Another participant similarly stated that he sees disability
raised as a defense or mitigating circumstance when the Federal Government
attempts to remove an employee’s security clearance.
One judge with five years of experience on the superior court
in a large city had recalled earlier only a single experience with the ADA—a
case in which a deaf couple were divorcing and needed an ASL interpreter for
court and mediation. Later in the discussion, he recalled a civil tort case in
which a woman driving a motorized cart supplied by a department store had hit
an older woman. The older woman’s hip was broken and she could no longer live
independently after the incident, prompting her to sue the department store for
its failure to provide training in the use of its carts. The store’s defense
was that the
ADA
required it to
supply mobility devices but did not require it to give training in their use.
The only other context in which the participants had
experience with disability rights laws was in the context of civil dependency
cases. It was unclear whether the brief reference to such civil dependency
cases resulted from a confusion of laws designed for the protection of people
with limited mental capacity and disability civil rights laws. Aside from these
references, and the participants’ awareness of disability accommodation
policies in their courts, the group was generally unfamiliar with the broader
contexts in which disability rights laws operate proactively. When questioned
directly on what they felt were critical elements arising in disability rights
cases, the group opined that disability rights cases usually turned on matters
of law rather than matters of fact. This may reflect the extent to which the
participants were unfamiliar with the law and their underlying assumption that “disability
rights” is a highly technical and specialized area of law.
This underlying assumption about the difficult and technical
nature of the
ADA
was repeated a
number of times during the session by different participants. When the group
was asked whether they received good information about disability rights laws
from lawyers and litigants, most participants said they did not see good
briefing or issue spotting, or any real knowledge of the law, from the lawyers
who appeared before them and raised disability issues as a defense. The judge
who had graduated in 2000 did not recall being offered any coursework in the
area and had not heard any disability rights cases. Another participant who had
practiced extensively before joining the bench in rural
Oklahoma
said it was very difficult for attorneys to take on
ADA
cases, especially in rural areas, because they would be taking on local
businesses owned by friends and acquaintances and they would become competent
in a highly technical area.
In response to the question about the information received
from lawyers, some participants simply reiterated their initial assertion that
they themselves knew very little about the scope of the
ADA
and its requirements, and added their impression that there is a very low level
of general knowledge of disability rights law on the bench and in the bar. A
judge with more than 10 years of experience in an urban state court of general
jurisdiction thought that the substantive and proactive
ADA
cases were probably heard in federal court. Another participant recalled a case
in which a plaintiff employee had asked for a special chair as an
accommodation. The judge recalled the lawyering as excellent in that case but
could not say that this was generally true.
Knowledge of and involvement in disability rights case
resolutions and settlements
The participants were first questioned generally about their
involvement in case settlements in all areas of law. A participant from a very
rural area indicated that 95 percent of the cases before him settle, while a
participant from an urban court said that about 92 percent of his cases settle.
The rest of the group expressed general agreement with these numbers. There was
consensus on the idea that the judges do not involve themselves in settlement
except to the extent that judicial conferences are scheduled; often they do not
know the terms of settlement, except in those few areas such as class actions
and family law where judicial approval is legally mandated. As one judge with
10 years of bench experience put it: “The ‘why’ or ‘how’ of parties settling
only matters to me insofar as it is relevant to the next case. Settling means
compromise.”
The group indicated that, as judges, they may never know the
terms of settlement unless a minor is involved or they are working in some
other category of case that requires them to ensure that the settlement is not
unconscionable, unreasonable, or against public policy. Most of the judges had
little to add when asked about their experience with settlements that involved
more than money. The administrative DMV judge recalled settlements that
involved, for instance, the retention of a license conditioned on such remedial
action as taking a driving course. Neither the judge nor the DMV required proof
that the remedial action had been taken—it would only come up if the party
appeared again before the DMV and could not produce evidence that past
requirements had been fulfilled. The participant who had worked as an impartial
IDEA officer said he had seen many IDEA cases that involved factors besides
money. He said he frequently interacted with upset parents who felt they had
been “railroaded” into settlement by a school district that threatened to
continue with extensive litigation. On the point of special education, the
participant with DOED experience remarked that a number of judges have very
little experience in special education law. These judges have no vested
interest in special education cases, and “their behavior reflects it” when they
are unwilling to involve themselves in settlement issues.
In response to a specific question about their knowledge of
how
ADA
or disability rights cases are
resolved, the group stated that they have only the same general knowledge as
the average citizen on the subject. They said they might read about a case in
the newspaper but do not hear very much from or among their colleagues on the
topic.
Views on private enforcement of disability rights cases
When asked directly whether private enforcement was fostering
the implementation of disability rights laws, one participant simply stated, “I
don’t know.” No one disagreed with him, though there was much more participant
response when they were asked about any barriers that could be impeding private
enforcement as an implementation tool. The judges uniformly pointed to the lack
of a bar familiar with disability rights law. While many lawyers are involved
in social benefits litigation, the group felt that
ADA
and Section 504 were a “boutique” practice, raising once again the assumption
about the technical nature of the
ADA
.
A couple judges discussed how the practice of law has become increasingly
specialized overall, so it is important to have an attorney who really knows
disability law before bringing a case in this area. The participant from
Ohio
stated flatly, “There is no glut of lawyers in
Columbus
,
Ohio
, working in this area,” and he did not
see any attorneys “going around saying they could help parents of children with
disabilities or people with disabilities.”
The group’s uniform view that there were very few lawyers
proactively representing people with disabilities led to a specific question
about whether anyone in the group had seen disability rights laws “clogging up”
the courts. One participant responded by bringing up the term “attorney mill”
to describe a lawyer who simultaneously takes on many of the same kinds of
cases. The other participants recognized the term, but no one had seen this
occur in the context of the
ADA
or
disability rights laws. When the judges were asked about the existence of state
disability rights laws, each believed that his or her state had laws covering
disability discrimination in a variety of areas (e.g., employment, housing),
[17]
but they agreed that they were seldom used. One participant asserted that he
had not seen case law in this area developed, and it was hard to research.
Participants’ own needs and interests concerning
disability rights laws and suggestions for disability rights policy and
lawmakers
On the specific issue of disability accommodations for their
courtroom, the judges said they had an administrative office or place they
could call to obtain help. All the judges said they would be interested in
getting further information about disability rights laws. First of all, the
judges were interested in making their courts accessible to people with
disabilities. Second, the judges were interested in finding out more about
substantive disability rights laws—a couple mentioned that Westlaw had an
ADA
research tab that could be useful for this purpose. On the other hand, the
group agreed that formal training and information would be of little use unless
cases were filed. There is little incentive for busy judges to develop
expertise in an area unless they are hearing cases that demand that expertise,
and they believed that it was common for state law claims to be tagged onto
federal claims filed in federal court rather than the other way around.
The group did not have much feedback for lawmakers, which
might be expected considering their overall lack of direct experience of
disability rights laws. The participant who had worked with the DOED voiced a
need to study and implement safeguards to ensure that resolutions and
settlements reached under the IDEA actually benefited plaintiffs. He was of the
opinion that mediation and other tools in the law could be used to delay the
actual implementation of education rights for a very long time, and that
parents were disadvantaged. Another participant stated a concern for vulnerable
adults and said there should be greater dissemination of information concerning
the availability of legal disability expertise offered by such groups as Protection
and Advocacy organizations. One participant who had received training on
Section 504 in the late 1970s or early 1980s, when he was serving as a hearings
officer in the Nevada state welfare office, made the interesting comment that
it was “extremely illuminating” to receive training from presenters with
disabilities who could impart an awareness of disability issues that extended
beyond the black letter of the law.
3. Conclusions
A number of interesting observations made by the judicial
focus group are worth highlighting. While every judge had heard of the
ADA
and clearly associated the act with disability rights and access, most of the
judges knew very little about the law’s actual provisions. With few exceptions,
the judges could not recall dealing with an
ADA
case, and they tended to associate disability rights laws exclusively with
accessibility issues in their own courtroom or as a defense raised by
individuals who were losing their occupational licenses or security clearance.
The judges also lacked specific knowledge of their own state’s
disability rights laws and said they were unfamiliar with jurisprudence in the
area, or even with how to research disability rights cases. The judges had
encountered very few attorneys with expertise in disability rights, an area of
law that they perceived as technically complex and one that had inherent disincentives
to the proactive bringing of cases (e.g., attorneys in rural areas would have
to file actions against friends who owned local businesses). The comments made
in the judicial focus groups therefore support the contention that there is
inadequate private enforcement of disability rights laws and refute the claim
that there is widespread abuse of disability rights laws by litigants and
attorneys who are bringing multiple accessibility claims against small
businesses.
The judges’ uniform expression of interest in learning more
about disability rights laws is positive. Such training is needed in the face
of continuing concerns about the adequacy, reasonableness, and monitoring of
some disability rights class actions. However, the focus groups make the irrefutable
point that such training would be of little use unless the private enforcement
of disability rights is encouraged and cases are brought before them. Until
this goal is achieved, compliance with the
ADA
will remain elusive insofar as private enforcement is a crucial factor in
ADA
implementation.
II. Effective ADA Implementation Practices
Research was undertaken to identify
ADA
implementation practices that could serve as models and to demonstrate how the
ADA
is working effectively in different environments. Best practices were sought
that relate to the requirements of the law; educate people about those
requirements; or enhance systems, infrastructure, and technologies that bear
directly on practical aspects of implementation (for example, Internet and
computer accessibility) and advance the spirit of the
ADA
(practices that encompass, for example, universal design principles).
To be considered a best practice, the following
criteria had to be met:
·
The practice is structural in nature; that is, a
covered entity or government enforcement or
information agency or Department must have in place a well-established policy setting forth its commitment to fulfilling specific requirements of the ADA
(for example, providing job accommodations) and materials and information
related to the policy.
·
A well-functioning procedure or process for
activating the policy must be in place.
·
The practice must be institutionalized within
the entity or organization; it must not depend on the leadership of a few
individuals but rather can be easily adopted and carried forward by new
personnel when there are staff changes.
·
Data must be available to demonstrate that the
structure and process produce significant positive outcomes for people with
disabilities.
ADA
implementation
best practices were identified through a literature survey and review, key
informant interviews, Internet research, and review of Web-based public
information. Further evaluation was done by conducting telephone interviews
using an interview questionnaire with individuals within the entity whose
practice was under consideration, collecting program evaluation data and
reports, and seeking the opinion of others who were familiar with the practice,
including stakeholders who attended the dialogues.
Because the
ADA
is
broad in scope and coverage, the environments in which best or promising
practices might be found cut across many aspects of American life. Thus, in
attempting to identify these practices, an effort was made to include those
that reflect issue and organizational diversity, and that intersect in critical
ways with
ADA
implementation, such
as technology and leadership development.
Two categories of implementation practices are presented. The
first includes practices that appear to meet all the criteria for a best
practice; the second includes examples of implementation efforts that do not
achieve best practice status but nevertheless illustrate the range of creative
and innovative implementation activities in which covered entities and others
are engaged. In some cases, the activity likely will not generate meaningful
outcome data for some time, but the fact that an important process is in place
that lays the foundation for a potentially significant outcome is sufficient
reason to include it.
A. ADAImplementation Best Practices
Minnesota Department of Human Services—AXIS Healthcare
AXIS
Healthcare operates in cooperation with Minnesota Disability Health Options
(MnDHO), a managed care plan serving people with physical disabilities ages
18–64 years who are eligible for Medicaid and who reside in four target
counties. The Minnesota Department of Human Services (MnDHS), in collaboration
with two rehabilitation organizations in the state, designed this program to
combine physician, hospital, home care, nursing home care, home- and
community-based services, and other care into one coordinated care system.
[18]
The plan was designed
because people with disabilities who participated in the Medicaid program in
the target counties were experiencing poor access to health care services, were
unable to obtain accommodations in health care settings, and found that few
health care providers understood their particular needs. The program offers
some unique solutions to typical problems. For example, to avoid accessibility
and transportation problems, home or workplace visits replace office visits for
patients when possible. If an office visit is needed, the plan arranges for
lifting or other personal assistance if necessary, so the patient can get onto
an exam table or undergo a diagnostic procedure. While the plan is aimed only
at people with physical/mobility disabilities, they are the ones who are most
frequently unable to obtain appropriate services in conventional health care
settings. This is due in significant part to poor
ADA
implementation overall in health care settings
and particularly by state Medicaid officials and managed care organizations
with whom they contract for services.
AXIS reports that 500
people are enrolled in the plan, up from 200 in 2004, and that evaluations show
a high degree of satisfaction with services.
Overall, study participants were more satisfied with
the services they received in the year following MnDHO enrollment. Participants
felt that they received more coordinated and self-directed care after they
enrolled in the MnDHO program. Their interactions with their health providers
and office staff were more satisfactory after they enrolled in the MnDHO
program. In addition, those who reported a need for specific services, such as
primary care doctor and medical equipment, were more likely to access these
services after they enrolled in the MnDHO program.
[19]
Ohio
Youth
Leadership Forum—Leadership Training for High School Students
In 1999, the Ohio Governor’s Council on People with
Disabilities launched a program, modeled on a similar one in
California
,
that brings 35–40 high school juniors and seniors to
Ohio
’s
capital to learn how to become effective leaders.
[20]
The program, ongoing since its inception, was evaluated in 2002 by a doctoral
candidate to determine outcomes and effectiveness.
The program covered topics
such as disability history and culture, transition from high school to
employment and/or postsecondary opportunities, advocacy skills, rights and
responsibilities, the
ADA
and
Section 504 of the Rehabilitation Act of 1973 and its amendments, and the
Individuals with Disabilities Education Act (IDEA).
Ohio
has
operated four forums, beginning in 1999. Data were collected retrospectively
from the delegates for years 1999–2001 using surveys and questionnaires to
learn whether the forum had any long-term impact. The study revealed that
leadership development programs for students with disabilities can produce a
significant long-term outcome. The results of this study indicated that youth
delegates who attended the leadership program improved their leadership skills,
increased their potential to be leaders and change agents, and increased their
knowledge of disability rights laws and regulations and their capacity for
self-advocacy. Youth delegates also established peer and mentor relationships,
demonstrated improved self-esteem and motivation, and made commitments to
long-term leadership development and planning.
[21]
This project demonstrates the potential impact of enhancing
the capacity of young people with disabilities to assume advocacy and other
leadership roles in the community. These roles are recognized as critical to
the complex process of
ADA
implementation in a variety of spheres. It also indicates an appreciation by
Ohio
’s
primary educational and advocacy entity, the Governor’s Committee, that
leadership development is consistent with the spirit of the
ADA
and helps set the stage for future reforms.
Microtel Inns & Suites
Microtel Inns & Suites, the chain of newly constructed
budget/economy hotels, offers ADAAG-compliant sleeping rooms, strong
advertising, and significant staff training for franchise operators on serving
customers with disabilities. The company reported gains in its 2004 bookings
for
ADA
room nights across all
distribution channels by nearly 275 percent over 2003. In addition, net
revenues for
ADA
room nights
increased by more than 260 percent.
Verifying that use of use of accessible rooms has increased
since the company has undertaken staff training and advertising, Microtel’s
vice president for corporate communications,
Barb
ara
Wiener-Fischhof, provided the following information: The Microtel Inn &
Suites in
Leesburg
,
FL
, reported
that from 2003 to 2004,
ADA
room
nights increased from 209 to 523, and revenues increased from $11,606 to
$29,031. The Microtel Inn & Suites in
Bowling Green
,
KY
, reported that from 2003 to 2005,
ADA
room nights increased from 9 to 228 to 392, and revenues increased from $514 to
$10,425 to $19,673.
[22]
Microtel appears to have made a strong commitment to appeal to
the market segment of people with disabilities. The corporation has taken very
seriously the need to ensure that its facilities are fully ADAAG-compliant and
that all service personnel are trained to provide courteous service to
customers with disabilities. Disability-friendly Web content appears as a
primary link on the company’s home page, rather than being buried under an
obscure title. The Web site also provides extensive details about accessibility
features. Company personnel are familiar with the features and accommodations
that are available and seem knowledgeable about Microtel’s disability
philosophy.
[23]
Pay Equity for Fixed-Route and Paratransit Drivers
Almost all transit agencies pay fixed-route bus drivers
considerably more in wages and benefits than paratransit drivers. It is often
assumed that this pay discrepancy reflects greater difficulty in the
fixed-route driver’s job; however, the salary differential is not necessarily
based on any objective comparison of the two jobs but rather has historic
roots. Paratransit developed from a social services model, in which salaries
are lower than those for public transit operators. Arguably, paratransit
driving is the more difficult job, requiring skills such as familiarity with
the street network and more physical stamina.
Resolving
this discrepancy in pay would resolve some of the chronic difficulties that
persist in paratransit service. The low driver salaries lead to high turnover
and difficulties in maintaining a stable, skilled force of drivers. A stable
driver workforce is particularly important in
paratransit systems, since veteran drivers are more familiar with the street
network and with the needs of their riders. These factors enhance on-time
performance and service productivity, as well as improving the ride experience
of the passenger.
A few transit agencies have eliminated the pay discrepancy and
have seen significant service benefits as a result. Tri-Delta Transit in
Antioch
,
CA
, made this change in the late 1990s and
lowered paratransit driver turnover by 50 percent. In
Wenatchee
,
WA
, Link Transit has extensive experience
with equalizing driver pay. Richard DeRock, who became general manager in 2002,
described Link’s positive experience, which dates back to 1995:
Here at Link, the agency decided in 1995 to bring its
paratransit operation in-house. The Link board decided that the operators
[drivers] would be fully integrated into the Link operation and that full wage
parity would be provided.
The paratransit operators that were assumed from the
contractor were made employees of Link and had to complete the Link training
program for fixed-route operators. The operators can choose to drive
exclusively paratransit, exclusively fixed-route, or a combination based on
their seniority. All operators are paid on the same scale. Most of the
operators regularly choose to alternate between paratransit and fixed-route.
Nearly all operators drive paratransit at least two months each year.
The results: Our turnover rate is very low and uniform
between paratransit and fixed-route. Our average operator has driven for ten
years, as opposed to most paratransit systems that have turnover around 50
percent per year. This longevity has resulted in very skilled drivers who
rarely get lost, know nearly all of their passengers, and operate at very high
productivity—3.9
ADA
passengers per
hour. This compares to an industry average that is around 1.8 passengers per
hour. In addition, by having the drivers operate both paratransit and
fixed-route, efforts to move paratransit riders to fixed-route have been much
more successful. The passengers seem to be more willing when they know that the
big bus operator is someone who has transported them on paratransit. I am
convinced that driver attitude has a huge impact on the possibility of moving
paratransit riders to fixed-route. We believe our parity actually reduces
paratransit demand.
Utah
Transit
Authority—Stop Announcements
Utah Transit Authority in
Salt Lake City
has attained a high rate of stop announcements without resorting to automated
stop-calling technology. Negotiation with the drivers union resulted in an
agreement on a secret rider program. When the program was first implemented, it
simply collected information and reported results, thus providing a grace period
so everyone had an opportunity to become comfortable with the system. Only
after the grace period were the results used in connection with employee
discipline. A progressive disciplinary program was established that started
with citations and warnings, then progressed to suspensions for longer periods,
and resulted eventually in termination. The success rate in stop calling is
often well over 90 percent; performance below 75 percent is subject to
discipline.
Dallas
Area Rapid Transit—Equipping Paratransit Vehicles with Automatic Vehicle
Locators and
Mobile
Data Terminals
A number of large urban transit agencies have equipped
paratransit vehicles with two technologies: automatic vehicle locators (AVLs)
and mobile data terminals (MDTs). The AVL uses a global positioning system to
allow the agency to monitor the location of its paratransit vehicles on a
real-time basis and to provide historical location information on trips. MDTs
facilitate digital communications between drivers and the dispatcher. Drivers can
use the terminals to record their arrivals and departures in real time. This
information is then used to calculate new estimated arrival times for
subsequent trips.
One acknowledged leader is Dallas Area Rapid Transit (DART).
With these technologies, a transit agency has constant real-time ability to
monitor where vehicles are. If a vehicle is having problems, the agency can
update schedules—if one vehicle becomes late, the agency is not dependent on
the driver to provide notification but can see the problem right away and take
action. Agency personnel can make other arrangements for the trips that the
troubled vehicle was supposed to provide. The agency can look ahead for the
next hour or two to see where on-time performance problems will occur and move
trips around to avoid them. Drivers are not given a paper list of the day’s
rides but electronic notice that is always timely. Thus, AVL and MDT enable an
agency to do a much better job of managing trips.
[24]
According to a June 2006 DART report that presents cumulative
data indicators for the fiscal year-to-date, trending is positive, and there is
a high probability that performance indicator goals for the year will be
reached. Specifically, the on-time goal for the year was set at 86 percent and
the annual year-to-date on-time performance through June 2006 was reported as
88.6 percent, 2.6 percent over the goal. This data suggests that AVL and MDT
are enabling the system to manage trips more effectively.
Job Accommodation Network
The Job Accommodation Network (JAN) is a service of ODEP of
DOL. JAN’s mission is to facilitate the employment and retention of workers
with disabilities by providing employers, employment providers, people with
disabilities, their family members, and other interested parties with information
on job accommodations, self-employment, and small business opportunities and
related subjects. JAN’s efforts support the employment—including
self-employment and small business ownership—of people with disabilities. JAN
is the most comprehensive resource for job accommodations available. Its work
has greatly enhanced the job opportunities of people with disabilities by
providing information on job accommodations since 1984. In 1991, JAN expanded
to provide information on the
ADA
.
JAN consultants have obtained at least one master’s degree in their specialized
fields, ranging from rehabilitation counseling to education and engineering.
The development of the JAN system has been achieved through the collaborative
efforts of ODEP, the
International
Center
for Disability Information at
West Virginia
University
, and private industry
throughout
North America
.
[25]
Preliminary data from a recent customer satisfaction survey of
778 employers and 882 individuals with disabilities reveals that a broad
spectrum of business types use JAN’s services. JAN customers reported that
implementation of worksite accommodations would significantly reduce the
individual’s level of limitation due to the disability. Further, JAN customers
reported having made highly effective accommodations at very little or no cost.
Employers who were interviewed said slightly over half (50.5%) of the
accommodations they implemented following discussion with JAN had been at no
cost. For those employers who did experience some cost, the median dollar value
was $600.
[26]
While JAN’s primary mission is to advise businesses and people
with disabilities about effective workplace accommodations, the experience of
the organization also has shown that employer fears about the cost of
accommodations is unfounded. This information is crucially important to the
process of identifying and fostering new strategies to increase employment
opportunities for people with disabilities, and for employer education. JAN’s
track record, level of effectiveness, and significant role relative to the
accommodation requirements of the
ADA
place it in the best practices category.
B. ADA Implementation Notable Practices
1. Employment—Title I
State of
Maryland
—Cabinet-Level
Department of Disability
As a result of numerous senior-level brainstorming
sessions on ways to increase employment of people with disabilities in state
government, the State of
Maryland
created the Disability Employment Workgroup in 1999. Co-sponsored by the
Maryland Department of Budget and Management and the Department of Disability,
the workgroup is responsible not only for developing innovative ways to
increase the number of people with disabilities employed in state government
but also for ensuring that state employees have access to current and accurate information
regarding the ADA. Since the creation of this group, the state has implemented
numerous practices intended to support the employment of people with
disabilities, including the following:
[27]
·
Elevating the Governor’s Office on Individuals
with Disabilities to cabinet-level status as the Department of Disability.
·
Establishing a special outreach and employment
position in the Department of Budget and Management to help state agencies
target diverse applicant pools for state positions.
·
Implementing (in 2003) a state-level Disability
Mentoring Day that provides a mentoring/job shadowing experience for
participants, with informational workshops on applying for state employment.
·
Providing ADA training resources to state
agencies; creating flyers and other materials that explain the ADA reasonable
accommodation obligations of various state agencies; issuing a reference
booklet entitled “The Americans with Disabilities Act and Employment Guidelines”
to all ADA coordinators statewide; and putting on ADA train-the-trainer
conferences.
·
Establishing (in 2000) the Governor’s QUEST
(Quality, Understanding, Excellence, Success, and Training) Internship Program
for People with Disabilities, which offers three-month paid internships in
state government.
The QUEST program has successfully weathered hiring freezes
and budget cutbacks and is reported to have been successful in promoting the
employment of people with disabilities in state government. The state reports
that approximately 50 percent of all former QUEST interns are presently
employed in their target job areas in either private or public sector
positions.
[28]
As early as 2001, several state agencies in Maryland began
tracking their provision of reasonable accommodations to their employees and
documenting the number of accommodation requests received, who made the request
(the employee or the employer), and how many requests were approved. This
statistical information began to be included in the “Statewide Equal Employment
Opportunity Report” in 2003.
The 2005 EEO report indicates that there were 259 requests for
reasonable accommodation from state employees, of which 231 (89%) were granted.
All agencies reported to the EEO, but not all agencies provided information
about accommodations. Among those that did report, Agriculture, Education,
Health and Mental Hygiene, Human Resources, Juvenile Services, Transportation,
and the Maryland Automobile Insurance Fund accounted for 173 (67%) of the
total reasonable accommodations requests.
Some departments granted a higher percentage of requests than
others. For example, DOED granted 100 percent of the requests (32 of 33
requests were granted and one was pending at the time the report was released);
Juvenile Services granted 43 percent (7 of 16 requests); and the State Police granted
zero percent (two requests were received, and both were denied).
[29]
Of the reported 259 accommodation requests, 35 appear to be from job
applicants.
Maryland
has
approximately 93,000 employees. The number of accommodations sought and
provided in 2005 represents a small percentage of that overall workforce; in
the future, it will be important to learn if accommodations are underreported
and to understand whether accommodation requests increase over time.
[30]
University
of
California
at
San Francisco
—Providing Job
Accommodations
Over three decades ago, the University of California (UC)
system developed an Employee Rehabilitation Program in response to the
requirements of the Rehabilitation Act for reasonable accommodation of
disability. At the UC San Francisco (UCSF) campus, the program evolved into a
comprehensive program to foster employee health, safety, and productivity, and
to retain employees who have or develop disabilities. McMahon, et al. (2004)
quote UCSF’s assistant director of human resources: “Our approach is based on
our desire to retain the highly skilled employees who work here. . . . We want
to make dealing with [reasonable accommodations] just a regular part of what
supervisors do day-to-day, just as they deal with vacation and sick leave.”
[31]
The UCSF approach to retaining employees focuses on (1)
providing reasonable accommodations as needed, and (2) providing temporary
transitional work for conditions that are expected to be temporary. For
transitional work, the employee, the supervisor, and, often, a disability
management professional develop a written plan for the employee to follow for a
set period of time. When necessary, employees may use the Special Selection
system, which allows preferential placement into new or vacant positions. Under
Special Selection, hiring managers are required to consider the covered
employee first for positions for which he or she is qualified, and to document
hiring or rejection decisions thoroughly.
UCSF has established a
comprehensive program that is expressly tied to the ADA with regard to providing accommodations to
employees with disabilities. Disability Management Services, the organizational
unit that “administers the UCSF workers’ compensation program and facilitates
return-to-work initiatives and reasonable accommodation for employees who have,
or who may develop, health problems affecting employment,” has a Web site that
contains clear written polices as well as information on how to locate
resources and staff experts on disability-related needs.
[32]
An “ADA
and Accommodation” link (www.ucsfhr.ucsf.edu/dismgmt/ada/index.html) is
featured prominently on the site’s home page; it connects to resources that
include where to find ADA help at UCSF; an ADA reference sheet; a supervisor’s
guide to complying with the ADA; job aids on essential job functions,
reasonable accommodation, interview guidelines, and mental disabilities; and
other accommodation resources on the Web, such as the California Department of
Rehabilitation, JAN, and the Pacific Disability and Business Technical
Assistance Center. The Web site for the UCSF Chancellor’s Advisory Committee on
Diversity (www.ucsf.edu/diverse/) also provides resources on reasonable
accommodation, including a Manager’s Tool Kit for the UCSF Transitional Work
Program.
According to UCSF Disability Services staff, the strength of
the program is that management of day-to-day accommodation request is taking
place in an efficient manner. The major weakness of the program is
accommodating people who have to be transferred to other departments because
their disability cannot be accommodated in their current job. Because of
departmental decentralization, accommodation processes can be inconsistent.
[33]
Alaska
Airlines—Disability Accommodations Program
Alaska Airlines has developed a comprehensive process for
providing accommodations for its employees with disabilities; the process has
been institutionalized and promoted extensively throughout the company. The
airline first developed a return-to-work/disability management program in the
mid-1980s; in time, it was expanded into a formal Disability Accommodations
Program. The program is staffed by accommodations specialists who not only are
able to provide expert assistance tailored to the individual worker but who are
also positioned organizationally to easily coordinate accommodation services
with workers’ compensation service agents and other disability professionals.
[34]
Any employee who desires an accommodation for a disability
completes a Disability Accommodation Request Form and meets with the disability
accommodation supervisor to discuss what accommodations may be needed. The
individual’s frontline supervisor and, often, the union representative are also
involved in the discussions. According to McMahon, et al. (2004), every
accommodation request is reviewed with the Job Accommodation Network to
identify available options and standards for accommodation.
[35]
All accommodation requests are documented thoroughly and tracked through
completion of the request and subsequent follow-up.
Alaska Airlines has established a program that seems to be
effective in promoting employment and retention of people with disabilities by
implementing the reasonable accommodations provisions of the
ADA
.
The airline has developed clearly written policies that are readily available
to employees, and it provides training to supervisory personnel on reasonable
accommodations; procedures for assignment to the Modified Duty Program
(allowing employees with a temporary injury or medical condition to return to
work on a temporary duty basis); workers’ compensation procedures; and related
topics. Managers are expected to participate actively in the process of
ensuring employment opportunities for all qualified individuals, including
people with disabilities.
Evidence of Alaska Airlines’ commitment to equal employment
opportunities and the accommodation of people with disabilities can be found on
the “Careers at Alaska Airlines” page of the airline’s Web site: “We take a
proactive approach to the recruitment, hiring, and reasonable accommodation of
qualified applicants who are differently abled. Our employees participate in
organizations and outreach activities dedicated to providing education and
information regarding employment of people with disabilities, and we are committed
to providing appropriate reasonable accommodation for members of the Alaska
Airlines team who become disabled while employed with us.”
[36]
2. Public Accommodations—Title III
California Hotel & Lodging Association—We Welcome
Service Animals™ Program
The California Hotel & Lodging Association (CH&LA) is
the largest state lodging industry trade association in the country. Its 1,600
members represent approximately 175,000 guest rooms in hotels, motels, bed and
breakfast inns, guest ranches, resorts, spas, condominiums, timeshares, and
vacation homes throughout
California
.
The CH&LA Educational Foundation received $100,000 from
the J. Willard and Alice S. Marriott Foundation to fund the We Welcome Service
Animals™ program. The funding will be used to reproduce and distribute the “We
Welcome Service Animals” training videos and collateral materials, with the
specific goal of ensuring enhanced accessibility throughout the hospitality
industry for guests and patrons who use service animals.
The foundation created the program as a national education and
outreach campaign to teach people in the hospitality industry and law
enforcement community how to improve service to guests and patrons with
disabilities who use service animals for assistance. In accordance with the
ADA
,
hotels, motels, and restaurants are required to treat customers with
disabilities accompanied by service animals like all other guests, providing
them with the same service and access to all areas where other guests are
allowed. The development of the program’s training videos and collateral
materials was made possible with initial funding from the American Hotel &
Lodging Educational Foundation and the American Express Foundation.
The We Welcome Service Animals™ program won the Associations
Advance America award from the American Society of Association Executives, as
well as a gold Telly award (honoring local and regional television commercials
and productions).
The program will be offered by Marriott International, Inc.,
as an education and training component to its approximately 2,200 lodging
properties in the
United States
.
Best Western International will also distribute the program to more than 2,400
properties in the
United States
and
Canada
, and
the Asian American Hotel Owners Association is furnishing the videos and
collateral materials to its 8,500 members.
[37]
Kaiser Permanente Health Plan—Plans for New Construction
in
California
are Site-Checked by
Trained Outside Experts
In 2000, three
wheelchair users sued Kaiser Permanente, the nation’s largest nonprofit health
maintenance organization. Based in Northern California, Kaiser operates 30 hospitals in nine states and the District of Columbia, and has 8.2 million members. The lawsuit
alleged that the health care giant failed to provide equal and adequate care
for patients with physical disabilities, citing pervasive barriers as well as a
lack of specially equipped examination tables and weight scales at scores of
Kaiser facilities throughout California. Of Kaiser’s nearly 6 million patients
statewide, more than 100,000 are people with disabilities, and 40,000 use
wheelchairs, according to attorneys for the plaintiffs.
While much has happened since 2000, one important change
appears to be embedded in the company’s culture and practices: Five years after
the lawsuit was filed, Kaiser Permanente has transformed the way it ensures
that accessibility requirements are met in new construction projects, according
to architecture and design experts who have worked with the company.
All plans for new construction are reviewed by outside access
experts who were trained by the original access expert consultant team. Kaiser
established this process because it became evident in the course of the litigation
that most architects, even those with prestigious firms, know very little about
accessible design or the requirements of the
ADA
.
Under the new procedure in California, five teams—about 35 people—work full
time reviewing plans against a lengthy checklist of about 1,000 items related
to ADAAG and state access law compliance. The original architectural team that
developed the plans welcomes the design feedback and incorporates it into
revisions. This feedback process has enhanced the skill set of professionals in
these primary firms and has enabled them to assess access issues in more
practical and effective ways. Although the process might appear rudimentary, it
has resulted in several important changes in the way both Kaiser and the
architecture firms with which it does business operate.
Kaiser has embedded a practice into its operational philosophy
and process that will ensure the highest quality and most current thinking
about access in new construction. In light of the company’s significant capital
budget, much new construction will be created in the next few years that has
the potential to represent state-of-the art models for other health care
providers.
Not only will new health care facilities owned and operated by
Kaiser have the potential to feature both creative and ADA-compliant design,
the companies that received training are now staffed with access experts who
fundamentally understand the value and importance of access and are in a
position to inculcate that viewpoint into design decisions for other clients.
The collateral effect, therefore, is quite significant.
[38]
Blue Ridge
Community
College
—Assessing Educational Technology
Accessibility
Blue Ridge Community College (BRCC) in the Appalachian region
of
North Carolina
developed a
practice to assess current educational technology accessibility, implement
faculty training, and upgrade adaptive technology on its two campuses. The
project included the input of a student advisory board, the development of
faculty training materials, the creation of a disability services handbook, an
assessment by the North Carolina Assistive Tech Project, and proposed
procurement policies.
BRCC took steps to improve services to students with
disabilities in partnership with the
Southeast DBTAC
, a
project of the Center for Assistive Technology and Environmental Access (CATEA)
at the Georgia Institute of Technology in
Atlanta
.
The
Southeast DBTAC
provided funding for professional
development opportunities for faculty, the improvement of training materials
for distribution, the establishment of a panel to solicit advice from students
with disabilities, the assessment of campus accessibility in the area of
educational information technology, and the expansion of procurement policies.
While outcome indicators for this initiative are
primarily anecdotal, they suggest the following:
·
Increased input from students with disabilities
regarding barriers.
·
Increased interest from faculty in accommodating
students who have learning disabilities.
·
Increased awareness of technology department
staff regarding students with disabilities and their information technology
needs.
·
Policies for purchase of accessible copiers,
computers, workstations, and removal of physical barriers in the computer labs
and distance learning rooms.
·
The addition of a disability service director to
the information technology planning committee.
[39]
It appears that the project contributed to more students with
disabilities completing programs of study and an increase in their graduation
rate of 20 percent in three years, according to program staff estimates. This
project removed barriers to students with disabilities at BRCC and, in many
cases, improved educational services for all students.
Furthermore, the changes that the initiative wrought appear to
have been institutionalized within the culture of the campus and are
memorialized in policies, practices, and procedures that will continue to serve
the long-term technology needs of students with disabilities.
[40]
University
of
Wisconsin–Madison
—Development,
Articulation, and Support of a Web Accessibility Policy
The University of Wisconsin–Madison was one of the first
universities to develop a policy to make the Web more accessible for people
with vision, hearing, and other disabilities. The university based its original
policy, adopted in December 2000, on the guidelines developed by the Web
Accessibility Initiative (WAI) of the World Wide Web Consortium. The standards
were supported at a high administrative level—they were disseminated and
promoted by the vice chancellor for legal and executive affairs and
ADA
coordinator.
The policy was updated in November 2001 and again in May 2003
to reflect what had been learned from implementing the first policies, to
recognize rapidly changing technology, and to bring the campus policy in line
with new standards that had been adopted by the Federal Government. Consistency
with Section 508 standards allows campus Web developers to benefit from the
clear guidelines and extensive supporting materials developed in response to
federal standards. The new policy was promulgated by the vice chancellor for
legal and executive affairs and
ADA
coordinator, the chief information officer, and the director of the Division of
Information Technology.
Local responsibility for adhering to the standards is mandated
by the administration. A leadership team brings together a variety of
perspectives and concerns from computing staff, faculty, administrators, and
student services. This team works with the university community to establish
feasible guidelines for updating legacy Web pages, develop policy updates, and
ensure that ongoing training and support are provided to Web developers
campuswide.
The
University
of
Wisconsin
’s current published
policy was recognized by the
National
Center
on Accessible Information
Technology in Education, an NIDRR-funded project. On its face, the policy
appears to provide meaningful direction to campus units and departments about
methods and procedures they can use to evaluate their Web sites and actions
they can take to achieve accessibility.
[41]
Oregon
State
University
—Software Access
Guidelines
Postsecondary institutions nationwide routinely purchase
computer software that is inaccessible to individuals with some types of
disabilities. This software is not designed so it can be used by students and
employees who rely on assistive technology, such as speech output systems for people
who are blind. Inaccessible products restrict educational and employment
opportunities for people with disabilities. Few campuses have developed
policies that promote the procurement of software that is accessible for
individuals with a variety of disabilities and compatible with commonly used
assistive technology. Oregon State University (OSU) is one campus that has
taken proactive steps to ensure that software purchases are accessible to
potential students and employees with disabilities.
The Software Access Guidelines provide minimum standards for
software accessibility. The guidelines are designed to be used by vendors to
the university and by those responsible for overseeing the purchase of
information technology at OSU. Specifications cover keyboard access, icons,
sounds, display, field labeling, and documentation. The specifications present
the minimal level of product accessibility, but software developers are
encouraged to maximize the accessibility of their products. OSU’s Technology
Access Program provides assistance in maximizing accessibility.
Universal access to information is presented as a part of OSU’s
ongoing commitment to providing a barrier-free learning community. The
university developed the Software Access Guidelines with the goal that all
students and employees, including those with disabilities, would have access to
software used in the programs and other activities of the university. According
to the
National
Center
on Accessible Information Technology in Education, the guidelines were
established as a part of this commitment and to meet OSU’s ethical and legal
obligations under the
ADA
and
Sections 504 and 508 of the Rehabilitation Act of 1973, as amended.
[42]
3. Public and Private
Transportation—Title
II and III
King County Metro—Assessment Procedures for Paratransit
Riders
King County Metro in
Seattle
,
WA
, has a thorough system for assessing
what level of service to provide for paratransit riders. The evaluation takes
place as part of the eligibility assessment process, when the county conducts a
careful examination to determine which of the following services the person
needs:
·
Curb-to-curb service (the driver waits at the vehicle
or the curb rather than providing more assistance to the individual).
·
Door-to-door service (the driver goes to the
door of the rider’s pick-up and drop-off locations and provides assistance to
and from the vehicle).
·
Hand-to-hand service (the driver will only leave the rider at a destination where there is
an individual with whom the rider can be left; this is a service that might be
needed, for example, by an individual with dementia).
[43]
Eugene
,
Oregon—Modifying
Public Transit Fixed Routes
In
Eugene
,
OR
,
the transit operator has made small adjustments to some of its fixed routes to
make it easier for people with disabilities to reach particular facilities. In
one case, a number of riders were going to work at a Goodwill facility. Many
had the ability to ride transit unsupervised, but some had problems with being
dropped off on the opposite side of a busy street a block away from the
destination. The transit agency made small changes to the route on the bus run
that arrived around the time the daily employment program began, which enabled
the fixed-route bus to stop at the facility’s front door. It is a relatively
common practice for bus routes to community facilities such as schools and
factories to be adjusted to meet the needs of large groups of frequent riders;
in the case of
Eugene
, the transit
agency modified the route to accommodate workers with disabilities, which has
reduced the need for paratransit service for these riders.
[44]
Whatcom Transportation Authority—Flexible Will-Call
Policies
For many people with disabilities, will-calls—return rides for
which a rider does not have a specific time (e.g., after a doctor’s
appointment)—can require long waits and uncertainty. Some transit agencies
require a rider to provide a return time. If the rider is finished early, he or
she must wait; if the appointment runs late, the rider may miss the vehicle,
which poses problems for both rider and transit agency. The ability of the
paratransit operator to respond when the return ride is actually needed is an
important service for the rider. The agency is more likely to have the capacity
to handle such requests efficiently if it is equipped with AVL and MDT
technology. When the rider calls, the agency has a real-time picture of where
all the vehicles are and which drivers might be available for the pick-up.
Without the technology, many agencies take quite a long time to pick up a
will-call rider, because they only know which drivers had an opening in their
schedules as of
5:00 p.m.
the evening
before, when rides for the following day are scheduled.
In
Washington
State
,
many transit agencies have progressive policies about will-calls. Whatcom
Transportation Authority in
Bellingham
is an example.
[45]
Tour and Charter Service—Royal
Celebrity Tours
Companies that use over-the-road buses (OTRBs) in
demand-responsive systems, such as many tour and charter bus services, are
covered by the requirements in DOT’s 1998 regulation covering private companies
that offer transportation service using OTRBs. Many of these companies have
taken advantage of funding for accessibility equipment provided through DOT
specifically for privately operated OTRB service providers. As in most modes of
transportation, much has been accomplished, yet many problems remain.
Advocates in
Alaska
point to a real success story. Royal Celebrity Tours was started in 2001 and,
according to Maggie Kelly, manager of
Alaska
operations, obtained accessible OTRBs “because we thought it was the right
thing to do. We tie the coach line into [our other services], and Royal
Caribbean Cruises has always been concerned about accessibility.” The company’s
fleet is about 40 percent accessible, and many customers use the lift feature.
The company is conscientious about ensuring that staff members complete
mechanical training for lift equipment use and mandatory sensitivity training “beginning
each season for all staff with direct contact with customers.”
Mona McAleese, an Alaska ADA advisor and a person with a
disability, noted, “Royal Celebrity Tours is an awesome company to deal with.
They have had [disability community advocates] address the whole tour company
for three years now. They do have accessible buses, and the drivers get trained
on etiquette, performance, and the
ADA
.”
Airport Shuttles—SuperShuttle International
In April, 2002, the DOJ signed a settlement agreement with
SuperShuttle International to ensure that the nation’s largest door-to-door
airport shuttle company provides the same level of service to wheelchair users
that it provides to the general public. The company agreed to have two
accessible vehicles at each of its 11 corporate locations nationwide within a
year, as well as standing subcontracts with accessible transportation providers
to meet overflow demand. The 11 locations are Phoenix, AZ; Los Angeles,
Sacramento, San Francisco, and Orange County, CA; Denver, CO; Washington, DC;
Tampa Bay, FL; Baltimore, MD; New York City; and Dallas/Fort Worth, TX.
[46]
The agreement also required SuperShuttle to display its disability
nondiscrimination policy statement, mention its accessible service on its
prerecorded telephone message, and include it in all its advertisements.
Merrimack
Valley
RTA—Integrated Non-Fixed-Route Service
In
Haverhill
,
MA
,
the Merrimack Valley RTA (a small system with a fixed-route fleet of 40–50
vehicles) has a totally integrated non-fixed-route service. It has achieved
very good transit coordination. The demand-response service includes
ADA
paratransit, some contracted senior service, and a fixed-route deviation
service:
·
All systems use the same vehicles.
·
Riders call the same place to arrange rides.
·
All systems have the same dispatcher at the same
phone number.
·
All systems use the same drivers.
Service is seamless and costs less because separate operating
structures are not
necessary.
A Creative Practice by the
Miami
Dade Transit Authority
David Chia of Planners Collaborative witnessed an elegant
practice on the part of the Miami Dade Transit Authority. In
Miami
,
most of the rail stops have a center platform, so northbound trains run on one side
of the platform and southbound trains run on the other. This arrangement
presents a barrier to visually impaired individuals who have no way to know
which side or which train to board. The transit agency arranged for male voices
to announce northbound trains and female voices to announce southbound trains.
This solution worked because the structure of the rail system was relatively
simple.
Utah
Transit
Authority
The Utah Transit Authority (UTA) in
Salt
Lake City
has done a good job of tying
ADA
paratransit performance into fixed-route performance, reframing them as overall
transit agency performance. For example, staff job evaluations are tied to how
well the agency is performing in both modes, in contrast to most large urban
transit agencies, where greater value is attached to the effectiveness of the
fixed-route system than the paratransit system. UTA is able to accomplish this
because it provides the paratransit service itself rather than contracting it
out. Many job categories at UTA serve both service modes; for example, the same
garage superintendents have oversight of both types of service. Furthermore,
agency managers’ performance is judged, in part, on how well they are
attracting and serving people with disabilities on the fixed-route system. This
is seen as a cost-management strategy for
ADA
paratransit.
4. Telecommunications—Title IV
Department of the Deaf and Hard of Hearing to Oversee
State TRS Program
Virginia
allows
its Department of the Deaf and Hard of Hearing to oversee the state telecommunications
relay services (TRS) program, because this agency has easy access to consumer
feedback. It is helpful for the entity administering the relay program to be in
touch with the consumers who use the service.
VRS Used with a Larger Screen and a Black Background
When VRS is used with a larger screen and a black background,
it can make communication possible for low-vision deaf-blind people by making
it easier to see the interpreter. This best practice enables people who were
unable to communicate in the past to do so.
NexTalk Provides a Web-to-TTY Service
NexTalk provides a Web-to-TTY service (not an
operator-assisted relay service) that allows deaf-blind people to change the
font size and color on computer screens, so they can fit the service to meet
their vision needs when they converse with others. This is superior to TTYs,
even those with large print, because the lighting on these TTYs is too bright
and these devices do not allow for a change in font or color. In addition,
NexTalk technology allows users to save and cut-and-paste conversations into
Microsoft Word. Although TTY tapes can also be printed and saved, these are
hard to read for people with low vision.
A PAC Mate Provides an Accessible Pocket PC
A PAC Mate (by Freedom Scientific) provides an accessible
pocket PC that has a refreshable Braille display, instant messaging (IM)
capability, and TTY software. With one of these devices, someone who is
deaf-blind can shop at a store by communicating with others using the Braille
display. The person can then call a cab via Internet relay to return home. This
fosters independence and integration into the community.
Wisconsin
Free Second Line Service Facilitates Direct Calling
In
Wisconsin
,
telephone companies are required to offer consumers a second line at no cost
for use with two-line captioned telephone, two-line voice carryover (VCO) or
two-line hearing carryover (HCO). Two-line services facilitate direct calling
from hearing people to the captioned telephone user, rather than going through a
two-step process. It also facilitates using the captioned telephone service for
calls to 911.
Caller Profiles Speed Up Relay Calls
Caller profiles, which allow users to preselect their relay
mode, long distance carrier, and various other relay features, can speed up the
processing of relay calls. Privacy concerns, however, have kept many relay
users from taking advantage of this best practice.
ID Numbers Allow Access to Relay Profiles from Any Phone
Virginia, Maryland,
and a few other states allow speech-to-speech (STS) users to be assigned an ID
number. Callers can use this number to access their relay profile from any
phone. These states also encourage STS users to provide communication
assistants (CAs) with information about the subject matter of their calls while
they are being set up, so the CA can do a better job of facilitating the
conversation.
TSP Allows Relay Centers Priority Line Restoration
The Telecommunications Service Priority (TSP) system gives
relay centers that have applied for and received TSP status priority to have
their telephone lines restored in the event of an emergency. The FCC will sponsor
any relay facility that applies for TSP priority status. The Emergency
Communications Subcommittee of the Department of Homeland Security has announced
a goal of achieving 100 percent relay provider participation in the TSP program
by the end of 2006.
Fee Waivers for Hotel Ethernet Service
Hotels sometimes charge guests an Ethernet service fee for
wireless access to the Internet. A best practice exercised by some hotels is to
waive this fee when relay users need a wi-fi connection to make a relay call.
For these individuals, the wireless connection is functionally equivalent to
accessing the hotel’s in-room wireline telephone.
5. Federal Government Agencies
DisabilityInfo.gov—Information Resource Web Site
The Department of Labor’s Office of Disability Employment
Policy (ODEP) created www.DisabilityInfo.gov to provide people
with disabilities easy access to the information and resources they need to
live full, independent lives. Through an Executive Memorandum, the President
directed the development of DisabilityInfo.gov as the citizen-centric entry
point to federal, state, and local programs. The Web site is a collaborative
effort among 16 federal Departments and agencies. This interagency
collaboration has resulted in the development of a single source that provides
access to information in one place.
A review of the Web site shows comprehensive resources that
are easily navigated, and there is additional evidence of success. First, the
Web site is reaching a large number of users. Since it was launched in 2002,
DisabilityInfo.gov has received more than 4.4 million visitors from 180
countries, averaging more than 3,000 users a day. Second, in 2005, the Web site
received a best practice award from the Web Content Managers Forum.
[47]
The award was given after professional Web site content managers evaluated the
site for quality and content. The Web Content Managers Forum is a group of more
than 900 federal, state, and local government Web managers. Its Advisory
Council established the best practice awards to showcase innovative and
successful Web practices that can be replicated across government agencies. The
council received more than 70 nominations from more than a dozen government
agencies.
Equal Employment
Opportunity
Commission Report on Best Practices
The Equal Employment Opportunity Commission (EEOC) published a
report in October 2005 entitled “Report on Best Practices for the Employment of
People with Disabilities in State Government,” which highlights the practices of nine states that promote the
hiring, retention, and advancement of individuals with disabilities in state
government jobs.
The EEOC elected to conduct research with state governments
because they employ more than 5 million workers nationwide and, therefore, are
situated to serve as model employers for people with disabilities, who
experience unemployment at rates that remain around 70 percent. The governors
of the nine participating states allowed EEOC to review a wide range of
practices affecting individuals with disabilities who are state government
employees or applicants for state employment.
This effort represents a vital first step toward developing an
understanding of the potential impact of the
ADA
on employment opportunities for individuals with disabilities in state
government. Some innovative and important practices were identified in the
report that the EEOC should promote. However, the agency should urge the states
to collect data and monitor outcomes of selected practices over time. This data
is critically important for EEOC to determine whether the practices are having
the desired positive impact and to showcase with confidence those that are most
effective. The EEOC has laid the foundation to continue working with the states
whose policies were initially studied and to initiate similar, but more
in-depth, studies with them and with other states.
[48]
The Access Board—Facilitating Collaboration
The Access Board is an independent federal agency committed to
design that is accessible to people with disabilities. It is structured to
function as a coordinating body among federal agencies and to directly
represent the public, particularly people with disabilities. The Board has 13
members (appointed by the President) representing the public and representatives
from 12 federal Departments.
The Access Board has been effective in bringing together a
broad range of stakeholders—including businesses, technical experts,
researchers, trade associations, and people with disabilities—to tackle
difficult and sometimes controversial problems related to the built environment
and the Board’s ADA Accessibility Guidelines rulemaking authority. These collaborations
educate all parties involved and build goodwill for future endeavors. The
following are examples of collaborations that have generated important policy
or informational outcomes and ramifications for
ADA
implementation.
a. Indoor Environmental Quality Project
A growing number of people suffer a range of debilitating
physical reactions from exposure to everyday materials and chemicals found in
building products, floor coverings, cleaning products, and fragrances, among
others. Some people have developed an acute sensitivity to various types of
chemicals, a condition known as multiple chemical sensitivity (MCS). The range
and severity of reactions are as varied as the potential triggering agents. In
addition, some people report reactions from exposure to electrical devices and
frequencies, a condition referred to as electro-magnetic sensitivity (
EMS
).
In response to these concerns, the Board sponsored a study on
ways to improve indoor environmental quality for people with MCS and
EMS
,
as well as for the population generally. Conducted for the Board by the
National Institute of Building Sciences (NIBS), this project brought together
various stakeholders to explore issues and develop an action plan. A copy of
the report is available on the NIBS Web site at http://ieq.nibs.org. While the
project focused on commercial and public buildings, many of the issues
addressed and recommendations offered are applicable to residential settings.
The report includes recommendations on improving indoor environmental quality
that address building products, materials, ventilation, and maintenance.
A panel organized to serve as a steering committee for the
project included representation from MCS and
EMS
organizations, experts on indoor environmental quality, and representatives
from the building industry. Panel members explored various strategies for
collecting and disseminating information, selecting focus areas, increasing
awareness of the issues involved, broadening participation in the project,
developing recommendations for best practices, and identifying potential
partners for further study and outreach.
[49]
b. Education Initiative
Recognizing the critical role education plays in ensuring
access for people with disabilities to the built environment, the Access Board
is undertaking an initiative to promote accessible design in the education of
architects, interior designers, engineers, and others. As a first step in this
endeavor, the Board held a forum to get advice from various experts on how it
should proceed. Specifically, the Board sought input on how this effort can be
advanced through education curricula, design competitions and awards, and
outreach to colleges, universities, and accrediting organizations.
c. Winning Design Selected for Amusement Ride Transfer
Device August 18, 2005
The International Association of Amusement Parks
and Attractions (IAAPA), in partnership with the Board, organized a competition
for the design of a transfer device that can be used to facilitate access to
amusement rides. The Board issued guidelines under the
ADA
for amusement rides that permit use of a transfer device but do not include
design specifications. The goal of the design competition was to inspire
creative solutions for such a device, specifically one that could serve rides
that have seats lower than load platforms, which pose particular transfer
challenges. The Board received entries from engineering and accessibility
design professionals and college students. A panel organized by IAAPA and the
Board reviewed the designs and selected the top three. The three winning design
teams, all from the University of Kansas School of Mechanical Engineering, will
receive monetary awards.
While this competition is a useful undertaking to work on a
specific access problem, the real value of the effort is to build cooperation,
interest, and support among a broad range of stakeholders in this particular
industry for ensuring that people with disabilities can have access to the
activities and rides at amusement parks.
U.S.
Department of Justice
1. “Ten Small Business Mistakes”
DOJ has primary enforcement authority for the
ADA
.
The effectiveness of DOJ’s compliance monitoring, complaint processing and
investigation, litigation, and technical assistance activities have been
thoroughly evaluated by NCD and others. However, two relatively new technical
assistance products are included here as promising practices because they
appear to be effective ways to use Internet and electronic technology to
educate covered entities. Furthermore, they were conceived and executed in
response to concerns raised by small businesses that lawsuits are being filed
against them for accessibility violations even though they are unaware that
their facilities are not in compliance with the
ADA
.
“Ten Small Business Mistakes” is a 13-minute streaming video
that identifies common mistakes that small businesses make when trying to
comply with the
ADA
and addresses
the importance and value of doing business with 50 million people with
disabilities. The video features statements by store owners expressing their
doubts or misunderstandings about the
ADA
,
followed by responses from Assistant Attorney General R. Alexander Acosta and
other DOJ employees, explaining the law in plain language.
The video is potentially an effective tool for educating
businesses about their obligations under the
ADA
while dispelling myths and fears about what is required. By late 2005,
according to DOJ, about 8,000 copies had been distributed. The Department has
received positive informal feedback from its ADA Business Connection Group
(which DOJ has brought together to foster discussions and dialogue about
ADA
implementation) but has not undertaken a formal customer evaluation of the
video.
“Reaching Out to Customers with Disabilities,” an online
ADA
course for businesses, also holds the promise to be an effective tool for
educating businesses using Web tools and resources. The course includes 10
chapters that can be accessed individually or as a whole. The material is
straightforward and easy to read and understand, and contains simple,
illustrated instructions to businesses for handling typical interactions with
customers with disabilities. According to DOJ, the course is being advertised
incrementally and also will be available on CD-ROM.
[50]
2. Project Civic Access
On August 23, 1999, DOJ reached a settlement with the City of
Toledo, Ohio, in which the city agreed to remove barriers and relocate
activities throughout its city government. To build on that settlement, the
Disability Rights Section (DRS) of DOJ’s Civil Rights Division began similar
reviews of other local and state governments, and began to develop technical
assistance materials to help communities quickly come into full compliance with
the requirements of Title II of the
ADA
.
The project now includes 134 settlement agreements with 128
localities in all 50 states, the
District of Columbia
,
and
Puerto Rico
. In most cases, the compliance reviews
were undertaken on the Department’s initiative under the authority of Title II
and, in many cases, Section 504 of the Rehabilitation Act of 1973, because the
governments receive financial assistance from DOJ and are prohibited by the Act
from discriminating on the basis of disability. Some reviews were undertaken in
response to complaints filed against the localities. The majority of the
compliance reviews occurred in small cities and towns.
According to DOJ, local government officials have responded
favorably and cooperated fully in the reviews. They were timely in submitting
records as requested, made themselves available to answer questions during the
onsite visits, and escorted investigators throughout their communities so that
facilities surveys could be accomplished quickly and efficiently. Most
important, local officials have indicated a willingness to effect changes to
make their programs and services accessible to people with disabilities. The
project appears to have a strong educational component while also sending the
message that failure to move toward compliance voluntarily will spur legal
action.
3. Conclusion
The examples presented here of ADA implementation best
practices and those that have the potential to rise to that level in the future
illustrate that meaningful
ADA
implementation is both possible and practicable. These examples send the
message to those who have failed to take action or insist that the law is too
complex or vague that taking steps to make the goals of the
ADA
a reality makes practical sense, attracts customers, and ensures full
participation by people with disabilities. These examples can serve as models
and inspire diverse covered entities to engage in implementation on their own.
PART 2. Legal and Enforcement Tools
Introduction
The right of private citizens to bring an action in court when
their rights have been violated has long played a vital role in
U.S.
civil rights laws.
[51]
A private right of action, with its attendant ability to seek
compensatory/punitive damages and injunctive relief, enables those most impacted
by the deprivation of civil rights to play a part in the law’s enforcement and
enhances limited government resources to achieve desired social change. The
right of individuals with disabilities to bring their own action in federal
court against employers, government entities, and public accommodations
regulated by the
ADA
is a critical
component of the law.
[52]
While federal agencies such as the Equal Employment Opportunity Commission
(EEOC),
[53]
the Department of Justice (DOJ),
[54]
and the Department of Transportation (DOT)
[55]
were given specific mandates for enforcing different parts of the
ADA
,
the law from its inception also enabled individuals to sue in federal court
without exhausting administrative remedies.
[56]
The importance of the “private attorneys general” concept also encouraged
Congress to adopt the fee-shifting rule, common in civil rights litigation, for
private litigants under the
ADA
.
[57]
Any consideration of the implementation of the
ADA
must perforce
consider the function and state of private litigation under the
ADA
.
The following sections focus on the use of the private right
of action in two specific contexts that increasingly over the past several
years have generated controversy among covered entities, people with
disabilities, disability advocates and attorneys, and the general public. Broadly
speaking, private lawsuits brought under Title III against business entities
and regional or national class action lawsuits brought under Title III on
behalf of people with various disabilities have each raised concerns about the
potential for abuse.
In the case of individual private lawsuits, covered entities
and defense attorneys allege that some
ADA
plaintiffs and
attorneys, motivated purely by a desire for profit and unconcerned with
achieving true accessibility, have brought dozens of similar lawsuits against
small local businesses in particular for minor
ADA
violations. In large Title III class action claims, plaintiff and disability
advocates allege that inexperience and the potential for collusion on the part
of plaintiff and defense attorneys put people with disabilities at risk of
being encompassed within national or regional class settlements that trade
plaintiffs’ diverse rights under state laws for inadequate, inappropriate, or
no accessibility relief from the defendant. While the private right of action
lies at the root of both these allegations of abuse, the fact that covered
entities and defense attorneys raise the first set of concerns while people
with disabilities and plaintiff attorneys raise the second set likely accounts
for how the two groups differ widely in their suggested solutions and calls for
legal change.
This portion of the report examines various factors that have
contributed to the allegations of abuse, analyzes supporting evidence for the
allegations, discusses the general state of compliance by covered entities
under Title III of the
ADA
, and
comes to some conclusions about what is needed to support the optimal use of
private lawsuits against public accommodations. Our research leads to the
conclusion that the private right of action is generally underutilized under
Title III throughout the country. Moreover, the effectiveness of the lawsuit
tool is further undercut by general misinformation; a lack of reliable and
readily available Title III expertise; insufficient government enforcement of
compliance obligations among small businesses in particular; and insufficient
Title III education for all building professionals, attorneys, judges, and
other individual professions and licensing bodies that interact with covered
entities on their access and accommodation obligations.
I. Private Right of Action
A. Introduction
The right of private citizens to bring an action in court when
their rights have been violated has long played a vital role in
U.S.
civil rights laws.
[58]
A private right of action, with its attendant ability to seek
compensatory/punitive damages and injunctive relief, enables those most impacted
by the deprivation of civil rights to play a part in the law’s enforcement and
enhances limited government resources to achieve desired social change. The
right of individuals with disabilities to bring their own action in federal
court against employers, government entities, and public accommodations
regulated by the
ADA
is a critical
component of the law.
[59]
While federal agencies such as the EEOC,
[60]
DOJ,
[61]
and DOT
[62]
were given specific mandates for enforcing different parts of the
ADA
,
the law from its inception also enabled individuals to sue in federal court
without exhausting administrative remedies.
[63]
The importance of the “private attorneys general” concept also encouraged
Congress to adopt the fee-shifting rule, common in civil rights litigation, for
private litigants under the
ADA
.
[64]
Any consideration of the implementation of the
ADA
must perforce
consider the function and state of private litigation under the
ADA
.
While private enforcement of Titles I and II has received
controversial media attention,
[65]
and considerable academic attention has been paid to Title I employment
outcomes and analysis,
[66]
Title III litigation is likely the most publicly well-known area of private
ADA
lawsuits at this time. In the years since the
ADA
’s 10th
anniversary, the right of private litigation under Title III of the
ADA
,
which concerns discrimination in public accommodations and services operated by
private entities,
[67]
has received increasing media coverage and been the subject of intense public
scrutiny and debate.
[68]
Before delving into the context and dimensions of this debate, it is worth
noting how private litigation and administrative enforcement are structured
under Title III. Unlike the private right of action under Titles I and II,
private actions under Title III do not include the right to recover monetary
damages.
[69]
Private litigants under Title III may only ask for prospective injunctive
relief, though a prevailing party has the right to recover attorney fees.
[70]
This limited private right of action under Title III
unfortunately is matched, rather than made up for, by a weaker and narrower
administrative mandate for DOJ. While DOJ can seek compensatory damages under Title III, as well as civil penalties where
doing so will “vindicate the public interest,”
[71]
the Department is not required to
commence civil actions to enforce the Title III complaints submitted to it.
[72]
DOJ’s authority to commence a civil action under Title III hinges on the Department’s
finding of “a pattern or practice” of discrimination or “an issue of general
public importance.”
[73]
When the Department’s limited human and financial resources are added into the
mix, it is not surprising that the DOJ’s enforcement record focuses on large,
high-profile commercial defendants, and emphasizes settlements and consent
decrees over litigation. One commentator’s recent review of appellate level
Title III cases found only 82 Title III cases heard between the
ADA
’s
passage into law in 1990 and the end of 2004. DOJ was either a party or
submitted an amicus brief in 22 of
these cases.
[74]
In addition:
Title III cases had a dramatically higher percentage
of pro-plaintiff results on appeal when the DOJ was involved (9 of 22 cases,
49.9%) than in cases where the DOJ was not involved (27.8%). But the DOJ only
gets involved in a limited number of cases and, if anything, it appears it is
reducing the number of complaints it investigates. . . . The emphasis on settlement
creates less public law that businesses will pay attention to when creating
accessibility policies.
[75]
DOJ has been criticized for its overall enforcement of the
ADA
,
[76]
but the lack of broad, effective enforcement under Title III is especially
problematic in light of the interaction between the unavailability of damages
under Title III and a 2001 U.S. Supreme Court decision. In Buckhannon Board and Care Home, Inc. v. West Virginia Department of
Health and Human Resources, the high court found that plaintiff’s counsel
can only recover statutory fees when litigation has resulted in a “judicially
sanctioned change in the legal relationship of the parties.”
[77]
For Title III plaintiffs and their attorneys, this effectively means that they
are unable to recover fees under the
ADA
if a public accommodation is able to achieve compliance with the law before a
court issues a judgment, even if the plaintiff’s notice or lawsuit clearly
prompted the defendant entity’s actions. In fact, defendants most often demand
a waiver of attorney fees after lengthy settlement negotiation. A right to
compensatory damages would survive a defendant’s mooting of a lawsuit under Buckhannon, but there is no right to
damages under Title III. The fact is, “most civil rights litigation is not
brought by institutional litigators or by large firms engaged in pro bono
activity,”
[78]
but by individual members of the bar who must choose cases that will enable
them to maintain their practices and make a living. Title III cases carry an
inordinate amount of risk for an attorney: Even if there is a clear violation
and plaintiff achieves the desired result after expending time and resources in
settlement, Buckhannon allows the
expense to be borne by plaintiffs and their attorneys rather than the Title III
violator.
Few civil rights plaintiffs, no matter how self-motivated and
justified by circumstances, have sufficient resources of time, money, and
specialized training to successfully bring and maintain a federal lawsuit by
themselves. The private right of action under Title III is a vital component of
enforcement when DOJ enforcement actions are neither mandatory nor common.
[79]
Local and state building code officials, even though they likely received
training in federal access requirements, are only responsible for enforcing
state law provisions and do not provide any kind of forum or authority for
enforcing the relevant accessibility provisions of federal law. In any event,
even local codes only come into play when a public accommodation is engaged in
new construction or substantial renovation that requires plan approval and
construction inspection. Title III enforcement requires the availability of a
private bar that has the incentive to acquire
ADA
expertise and is willing to take on Title III compliance cases. Unfortunately,
Title III’s remedial limitations and the Buckhannon case have created the exact opposite status quo. Individuals with disabilities
who encounter barriers under Title III are forced to rely purely on a public
accommodation’s good will in responding to informal complaints or are left to
seek out those few attorneys who have found ways to manage their risk when
bringing Title III actions.
B. Title III and Voluntary
Compliance
The controversy over private litigation under Title III takes place
in a context in which there is very little disagreement over the worthiness of
Title III’s goal; that is, making public accommodations across the nation
accessible to people with disabilities. In addition, there is general
acknowledgement that many public accommodations are not in compliance with
Title III and are not, in fact, accessible.
[80]
One small business owner in San Francisco went so far as to state that even
though he is not an access expert, by simply walking down the street, he as a
lay person can tell that stores are not in compliance by looking at doorways
that are not wide enough or have steps or narrow aisles inside. While he had
heard that approximately 50 percent of small businesses were noncompliant, he
feels that figure is “conservative” and is actually much higher.
[81]
If Title III’s goals are both worthwhile and far from achieved, then it is
illogical to argue over a critical enforcement tool for achieving Title III’s
goals unless there are other effective means for achieving compliance. While
vigorous administrative enforcement cannot be counted on to achieve compliance,
another—and, some would say, obvious—solution is to encourage voluntary
compliance. Litigation draws down resources from plaintiffs, defendants, a
specialist bar, and the courts, and can lead to lingering ill will.
A number of innovative attempts have been made across the
country to provide mediation services, tailored technical assistance, and even
monetary incentives to nurture voluntary compliance with Title III, especially
among small businesses. Unfortunately, the results of these programs have not
been encouraging, though the attempts do reveal much about the shortcomings of
relying on voluntary compliance as a means of achieving the goal of Title III.
Christine Griffin, then executive director of the
Disability
Law
Center
, the
designated Protection and Advocacy center
[82]
for the state of
Massachusetts
,
described one such attempt as follows:
When our capacity prevents us from taking a public
accommodations case, we have a difficult time referring this type of case to a
private attorney. In response to that problem, we initiated a mediation program
that is free to the complainant (the individual with a disability) and free to
the business owner. We first ask the individual calling with the complaint if
he or she is willing to mediate the complaint. In most cases, the individual
says yes. They just want access. We then contact the respondent (the owner or
manager of the public accommodation), and in most cases the business owner
declines to participate. They prefer to hedge their bet and wait to see if
someone files the lawsuit.
[83]
In 2001–2003, Access Living, the independent living center in
Chicago, focused on providing technical assistance and free accessibility
compliance reviews to 41 progressive nonprofit organizations (e.g., YMCA,
Goodwill) participating as federal Workforce Incentives Act (WIA)–funded youth
contractors in the
Chicago
area.
This attempt differed from the mediation program offered in
Massachusetts
in that public accommodations were offered technical assistance and the
opportunity to proactively assess their
ADA
violations before receiving any particular complaint or being embroiled in a
dispute. The project was funded by the Department of Labor, which was working
to improve the participation of youth with disabilities in the WIA-funded
program. Access Living compiled and offered technical assistance manuals, gave
live training to over 175 frontline staff on disability-related issues of
recruitment and accessibility, and organized field trips for youth with
disabilities to the WIA youth contractors. Access Living also contracted with
the Great Lakes ADA and Accessible IT Center and the
University
of
Illinois
at Chicago (UIC)
Department of Occupational Therapy to perform basic physical and programmatic
accessibility site surveys of the 41 organizations. The survey results showed
that “[Y]outh participants with physical disabilities are unable to literally
get in the door and go to the bathroom in 75 percent of the WIA-funded youth
programs in
Chicago
,”
[84]
and none of the sites were fully compliant with federal and
Illinois
accessibility laws. This was the case even though a few of the organizations
specifically served youth with disabilities, though clearly the targeted group
must have been primarily youth with cognitive disabilities who did not have
many physical access issues.
Comments made by the WIA youth contractors organizational
staff during the surveys ranged from “We do not serve many people with disabilities”
to “Where do we get the money to make all these changes?” to “We’re glad to
have someone telling us where we lack and what we can do about it.” Despite the
positive tone of some comments, none of the sites voluntarily chose to achieve
greater compliance with applicable accessibility laws after receiving their
survey results. However, Access Living was successful in persuading the Chicago
Mayor’s Office of Workforce Development (MOWD), which administered the WIA
funds locally, to incorporate an access survey requirement and prefunding
policy and procedure for enforcing physical and programmatic accessibility into
its WIA funding request for proposals (RFP). MOWD also agreed to provide funds
for grants to the WIA youth contractors to improve accessibility. With the
first funding round under the new RFP, Access Living began receiving calls from
among the 41 organizations that had been surveyed. Since accessibility surveys
were now required for continued WIA funding, many of the youth organizations
sought copies of the free surveys that Access Living had earlier provided with
the stated incentive that such a service would normally cost hundreds of
dollars. The logical conclusion is that the organizations had not only failed
to improve their accessibility, they had misplaced the accessibility survey
itself.
It should be noted that the lack of success in the programs
described above could be attributed in part to the fact that the offers of
assessment and technical assistance came from entities that also had the
capacity and mission to bring a private lawsuit against entities that failed to
comply with the
ADA
. The public
accommodations involved could have felt inhibited by a natural distrust of such
assistance, even with assurances of confidentiality. Access Living, for
example, does bring litigation, and some WIA-funded organizations were
reluctant to even schedule the free survey, perhaps because they believed
Access Living was gathering evidence for a lawsuit. As one participant observed
at a stakeholder meeting in
Chicago
,
one would not readily go to the Internal Revenue Service first to ask for
advice about whether one’s tax practices violated the revenue code. However,
two other attempts to encourage voluntary compliance—made by a small
business–disability collaborative and an academic third-party source—also
failed to achieve uniform or even rudimentary voluntary compliance.
The San Francisco Collaborative was formed in 2003
to give small businesses the opportunity to proactively come into compliance
with their Title III obligations before litigation was brought.
[85]
The Collaborative’s partners were the San Francisco Small Business Network, the
Independent Living Resource Center San Francisco (ILRCSF), and the San
Francisco Small Business Commission, with funding from the latter two partners
and the Public Entity Risk Institute. There was relatively high awareness in
the small business community at the time of the potential for being sued under
the
ADA
, as hundreds of lawsuits had been filed against
San
Francisco
small businesses in 2002 and 2003 for violations of the
ADA
and Title 24,
California
’s state
building code.
[86]
Many of the violations involved the inaccessibility of something as basic as
entrances. The Collaborative’s partners worked together for approximately one
and a half years under certain cooperative assumptions, accepting the
following:
·
The average small business person did not
understand the requirements under the
ADA
’s
“readily achievable”
[87]
standard.
·
San Francisco
’s
Department of Building Inspection had made errors and omissions in the permit
and inspection process for Title 24, leaving small businesses unaware of their
state accessibility obligations.
·
Most businesses would make needed changes if
they were informed about what was required.
·
Financial assistance to small businesses to
obtain independent confidential accessibility surveys to assess the need for
modifications would make it easy for businesses to proactively ameliorate the
risks of litigation while also gaining new customers.
[88]
The Collaborative’s services to the business
community included the following:
·
Outreach through media (local newspaper
articles, paid advertisements, radio shows, press releases); presentations to
small business groups at award dinners and neighborhood merchant association
lunches/dinners; personal contacts by Small Business Network and neighborhood
association representatives; a display at the Department of Building Inspection
offering technical assistance (TA) funds; walking tours of small businesses to
provide tips and information about available services; classes on accessibility
and practical solutions conducted by an architect and an accessibility
consultant; and direct mailings of an introductory information packet complete
with $500–$1,000 TA coupons to neighborhood merchant associations and
individual businesses randomly selected from lists provided by the Council of
District Merchants and the Small Business Network.
·
Information and referral services via telephone
and e-mail.
·
Creation of easy-to-understand print materials
about what accessibility means in such formats as “tips for serving customers
with disabilities” and “hot topic question and answer” lists.
·
Establishment of a $25,000 technical assistance
fund that offers assistance of $500–$1,000 for an accessibility needs survey or
architectural plans to make accessibility changes (average cost,
$1,000–$1,500),
[89]
and a list of qualified, experienced accessibility surveyors.
·
A voluntary dispute resolution process that
would use a panel of people with disabilities and small business owners.
After 18 months of operation, the Collaborative had
successfully distributed more than 2,200 print packets of information and
reached more than 500 merchants at presentations. Forty merchants had been
reached through the walking tours that had been conducted in a few
San
Francisco
districts with public support from city
supervisors. However, only one neighborhood association took up the offer of a
free class, which was conducted for 10 merchants. On the crucial measure of
whether a significant numbers of businesses chose to engage in an accessibility
survey and/or increase their accessibility, a mere $1,775 had been distributed
from the fund for surveys and increased accessibility by the three applicants
existing as of July 31, 2005 (one request was pending at the time). Despite
extensive and varied outreach during the period of the Collaborative’s
operation, it was forced to conclude that—
Eighteen months after a collaborative effort began in
San
Francisco
, less than 3% of those offered information
responded. Less than .2% requested funds for accessibility surveys or
modification planning. Litigation has achieved greater compliance with state
and federal law, greater accessibility than a non-litigious, collaborative
approach.
[90]
Another attempt to encourage Title III compliance that is
examined here is notable for its focus on an urban Latino community in
Chicago
.
[91]
Small business owners and managers of diverse racial and cultural backgrounds
are a growing economic force, and ethnic urban neighborhoods frequently take
root in older built environments that have both numerous physical accessibility
challenges and relatively poor residents.
[92]
Researchers, in a study based out of the
University
of
Illinois
at
Chicago
,
[93]
used an educational intervention to assess the physical accessibility of 38
small business establishments in two adjacent
Chicago
neighborhoods. Teams visited the businesses to give them a baseline assessment
of their physical accessibility, focusing on whether the business’s entrance
and goods and services were fully accessible, moderately accessible, or
inaccessible.
[94]
Within
six weeks, each establishment received by mail or in person specific written
feedback regarding the business’s physical accessibility and suggestions for
inexpensive improvements.
[95]
The improvements included such simple suggestions as offer a service bell and
curbside service if an entrance is not accessible or to oil hinges and adjust
doors if an entrance door is too heavy or has inaccessible handles. At least
four months after the feedback, teams conducted follow-up accessibility surveys
and interviews with the 38 participants to determine the extent to which
accessibility improvements had been made and to obtain the participants’ views
on barrier removal.
Of the 38
participating businesses, 15 were moderately accessible and 23 were
inaccessible at the time of their baseline assessment, with an average of 6.7
accessibility problems for every establishment. At the time of the follow-up
interview, only three sites had improved from being inaccessible to moderately
accessible, with an average of one improvement
made per site (specifically, 20 of 38 establishments had made at least one
accessibility improvement). In addition, one of the larger businesses was actually
undergoing major renovations and had incorporated the study’s feedback into a
move toward achieving full accessibility. From the participant interviews, the
researchers found that “participants appeared to lack adequate and accurate
knowledge” about the ADA, and 45 percent of the sample said
they had not heard of the ADA before
participating in the study.
[96]
The provision of customized ADA-related compliance information to businesses
that had not sought out the information on their own and were facing economic
hardship did lead to an average improvement of 1/6.7 accessibility problems.
[97]
On the other hand, this leaves an average of 5.7 accessibility problems at each
establishment, none of which achieved full accessibility. The research team
also found that “many establishments believed that the lack of customers with
disabilities justified not making accessibility improvements,” demonstrating a
lack of awareness that their inaccessible entrances prevented customers with
disabilities from entering.
[98]
The study effectively illustrates the limits of relying on the
goodwill and voluntary compliance of public accommodations.
[99]
Businesses may not be actively antagonistic toward people with disabilities and
may be willing to do something. But
the accessibility changes that a business might make on its own—especially with
inadequate information about the law and erroneous perceptions concerning both
the costs of modification and the existence of customers with disabilities—will
rarely enable actual accessibility or comply with Title III. At the time of the
interview, 74 percent of the businesses (28) had not even posted the bilingual “If
you need assistance, please ask” sign with the accessibility symbol that had
been given to them as part of their feedback package, perhaps indicating a
reluctance to commit to an unknown degree of assistance. As the research team
in
Chicago
concluded—
The results also indicate that an educational
approach, although helpful, may not be sufficient. Additional
strategies—informational, motivational, and legal—may also be needed. In all
likelihood, multiple change strategies will be needed to make substantial and
sustained progress in securing the accessibility rights of people with
disabilities.
[100]
The limitations of voluntary compliance by public
accommodations, as well as the critical role of the private right of action, is
illustrated in a series of lawsuits initiated in 1995 by one private plaintiff
and the Disability Law Center (DLC), the Protection and Advocacy agency for
Alaska.
[101]
The “Ramps Project” was initiated when Jesse Owens, a professor at the
University
of
Alaska
and a wheelchair user,
came to DLC for assistance.
[102]
Professor Owens was an avid outdoorsman and was extremely frustrated by the
inaccessible public accommodations that served
Alaska
’s
highway system. In his travels and activities in
Alaska
,
he would pass through entire small towns where “he would not be able to get in
anywhere to go to the restroom or get a bite to eat.”
[103]
Two attorneys at DLC first identified architecturally inaccessible public
accommodations, especially those with entrance steps, then sent a letter to
each public accommodation informing it of its
ADA
obligations and asking the business to inform them of how it would meet this
obligation. If a business failed to take action even after a second letter, DLC
would file an administrative complaint or lawsuit.
In the first phase of the project, 62 letters were sent out,
with the result that 38 new ramps were built.
[104]
Some of the ramps were built voluntarily, but 12 were built only after DLC
filed an administrative complaint against the businesses. Later in the same
year, 271 letters were sent out in a second phase that received a lot of media
attention, and 85 of the businesses responded with voluntary compliance.
[105]
DLC still had to pursue lawsuits against 19 businesses, many of which were
resolved through entry into a consent decree in which the businesses agreed to
provide a ramp and pay attorney fees. Under phase two, 102 ramps were
eventually built. Janel Wright, a DLC attorney who worked on the project,
recalls that while some businesses quickly responded with compliance, others “fought
everything every step of the way.” The lawsuits were filed steadily—one new
lawsuit every two weeks—and were closely tracked by the media. Two businesses
that had initially ignored the letters eventually called DLC, but only after 15
lawsuits had been filed. For at least some businesses, notice of a Title III
violation and the threat of a lawsuit are insufficient to motivate voluntary
compliance; such businesses seem to require actual proof that lawsuits are
being pursued before they are sufficiently motivated to comply with the law
themselves.
The
Alaska
example shows another difficult aspect of voluntary compliance as a means of
achieving Title III implementation. A public accommodation may profess
willingness to comply with the law, but in fact that willingness may be
conditioned on being told exactly what is needed for compliance and the
specific consequences of not following the law, and/or receiving some kind of
assurance that providing accessibility as directed will be a guarantee against
future litigation. In other words, voluntary compliance is not a simple matter
of being told what is wrong; it is also about being informed of one’s specific
liability and risk of a lawsuit under Title III. The relatively high “voluntary
compliance” rates achieved in
Alaska
through the Ramps Project were obtained with the assistance of DLC, a legal
organization with sufficient personnel that had the capacity and mission to
enforce the federal civil rights law. The two letters that were sent provided
businesses with a clear idea of what the
ADA
required of them and indicated that they risked legal enforcement if they did
not take action. In this scenario, voluntary compliance is not an “alternative”
to the private right of action; it is, in fact, entirely dependent on the imminent threat of a private right of action.
Thus, voluntary compliance requires the availability of a private bar with technical
ADA
expertise—attorneys who can
make a living by including Title III compliance cases in their work.
The average person who has not retained an attorney is more
likely to send a request for voluntary compliance like the notice sent in a
recent California case: an unsigned, undated letter sent to a defendant
business before any lawsuit was initiated, telling the business that the sender
“could not find handicapped parking” and “had serious problems trying to use
your restroom,” and asking the business to “please take care of these problems
at once.”
[106]
Such a letter is sufficient to let a public accommodation know that it has
specific barriers that prevent people with disabilities from gaining access.
Eventually, the plaintiff did file a lawsuit and the parties reached a
settlement in which the business agreed to remove the architectural barriers
and pay monetary damages of $4,000, leaving the determination of the plaintiff’s
attorney fees to a court motion. At that motion, the court found that “it is a proper exercise of discretion and common sense in
an
ADA
case or a parallel state case to require, as a
prerequisite to recovering attorney fees, a pre-litigation unambiguous warning
notice to the defendant and a reasonable opportunity to cure the violation.”
[107]
The
court then stated that the letter sent prior to the lawsuit was insufficient
because:
[a]n unambiguous warning notice would specify and
detail the nature of the claimed
ADA
violation, and warn of the need for a lawsuit if the defect is not fixed within
a reasonable time. Plaintiff’s letter does not unambiguously accomplish those
objectives. Without an appropriate advance notice, the Court is unable to find
the lawsuit was necessary.
[108]
This leaves the average person with a disability facing a catch-22
when encountering barriers in a public accommodation. Before bringing a
lawsuit, she will need to find an attorney with the kind of
ADA
technical expertise that can “specify and detail the nature” of the public
accommodation’s inaccessibility and its liability risks under applicable
federal and state law. But what reasonable private attorney will take on a case
in which his fees may depend, according to the court in Doran,
[109]
upon sending the kind of prelitigation notice that will allow a business to fix
the problem and make attorney fees unobtainable according to Buckhannon?
[110]
What kind of private attorney could afford to investigate public accommodations
and write warning letters free of charge? It should be noted that the staff of
the DLC, as a part of the federally funded Protection and Advocacy System, are
not private attorneys who need to make a living from their fees. Also, most of
the time, Protection and Advocacy (P&A) agencies must use their limited
resources to pursue areas other than Title III physical access.
[111]
The experience of many people with disabilities is that their
initial requests for barrier removal are met with misunderstanding,
condescension, or hostility, or perhaps are simply ignored. The notion that
voluntary compliance is a fairer and better way to implement the goals of Title
III because it enables both people with disabilities and business owners to
effectively bypass attorneys is revealed to be fiction every time a public
accommodation disregards notice of its inaccessibility.
If voluntary compliance means giving public accommodations
tailored information about their accessibility obligations and the freedom to
make a few changes over time as convenient, then voluntary compliance has not
been an effective means of achieving Title III implementation over the
ADA
’s
16-year history. The above examples illustrate this repeatedly. If voluntary
compliance requires the receipt of a direct threat of litigation in a detailed
letter outlining one’s risk of liability under Title III, then people with
disabilities are placed in the untenable position of seeking out and
independently paying for expert technical and legal advice to be provided to
public accommodations. The ideal of voluntary compliance—when it means that a
person with a disability can simply communicate how he or she was denied access
to a public accommodation that will then make reasonable efforts to determine
its obligations under the law and address the problems—is a worthwhile goal.
The dissemination of information about Title III obligations and technical
assistance, outreach to businesses, and collaboration among disability
organizations and small businesses in particular should all be encouraged as
means to achieve this goal. However, it is clear that voluntary compliance is not
working very effectively at the present time and cannot be relied on to achieve
widespread Title III compliance without a healthy private right of action.
C. Reasons for Widespread
Noncompliance with Title III
There are numerous reasons for the present state of
noncompliance with Title III, 16 years after the passage of Title III. There is
very little voluntary compliance, partly because of the dearth of readily
available, reliable, tailored technical information for small businesses in
particular and insufficient motivation for businesses proactively to seek out
information. There is insufficient legal enforcement, both administrative and
private, that would provide motivation for private compliance and publicize the
law and how the “readily achievable” standard works in practice. However,
various stakeholders and academic commentators allude to deeper systemic
reasons that make it difficult to achieve broad Title III compliance and the
effective use of existing enforcement tools.
Complexity
Title III is intended to cover public accommodations of all
sizes all across
America
.
This scope of coverage is needed to ensure that people with disabilities can
gain access to all the goods and
services provided by public businesses.
[112]
Title III also protects the rights of people with all kinds of impairments,
encompassing a wide variety of circumstances in which discrimination can occur,
ranging from outright denials of service to people with developmental
disabilities, to refusals to modify communication practices and policies for
people who are Deaf, to physical inaccessibility for people with mobility
impairments. In addition, the physical accessibility requirements of Title III
depend in part on the date of construction or alteration of the building that
houses the public accommodation. Existing buildings are under a “readily
achievable” barrier-removal standard for compliance, which says a business must
make the physical accessibility changes that are “easily accomplishable and
able to be carried out without much difficulty or expense.”
[113]
Finally, the obligation to maintain readily achievable barrier removal is
ongoing—as the years pass, public accommodations must assess remaining barriers
and evaluate whether barrier removal is readily achievable in light of their
resources.
[114]
Title III is not a simple law and, ironically, some of its
complexity arises from an attempt to ensure that small businesses in particular
are not subject to an inflexible burden of compliance.
[115]
Whether barrier removal is readily achievable in any particular business is a
case-by-case judgment that depends on factors that include the nature and cost
of barrier removal and the size and financial resources of the public
accommodation.
[116]
While this flexibility allows the small mom-and-pop grocery store to avoid
being held to the level of barrier removal that could be expected of a
supermarket chain store, it also means that businesses in existing facilities
cannot follow a simple, industry-wide formula for achieving compliance. DOJ has
published accessibility standards and guidelines for existing facilities,
complete with numerous examples of “modifications that may be readily
achievable,” but businesses remain responsible for applying the standard to
their own circumstances and maintaining readily achievable barrier removal
under federal law.
[117]
Larger public accommodations can afford to obtain in-house expertise or hire
consultants to help them determine their Title III obligations, but smaller
businesses often lack the resources to acquire such expertise.
The challenge of navigating Title III’s physical accessibility
requirements is further exacerbated by the dearth of readily available local
expertise regarding federal accessibility standards. Access Living’s work with
Chicago
’s
WIA youth workforce resulted in the conclusion that the surveyed organizations
showed little motivation for achieving Title III compliance and did not seem to
think they served people with physical accessibility needs. At the same time,
Access Living acknowledged that it was “extremely difficult to identify people
and firms who were qualified” to conduct accessibility site surveys or help
workforce development agencies create an ADA/504 plan, and cited a “tremendous
need nationwide for resources” such as lists of such people and firms.
[118]
The San Francisco Collaborative concluded in its report that while the small
businesses it reached out to uniformly chose a “wait until I’m sued” approach
to compliance over proactive risk management, there is also “genuine confusion
about obligations under Title 24 [California’s State Building Code] and ADA” as
well as “real difficulty in accessing funds to make significant changes under
the ongoing obligations of ADA or to redress past errors under Title 24.”
[119]
Ignorance of the law does not excuse a failure to follow the
law, and the complexity of the
ADA
does not excuse the failure of businesses to comply with their Title III
obligations. However, Title III’s complexity for the existing facilities in
which many small businesses are located is one more factor that may influence
business owners to focus on other legal requirements first. One participant in
the work of the San Francisco Collaborative observed that many small businesses
with slight profit margins see Title III as just another regulation:
There are many regulations that small businesses must
comply with, and laws such as health regulations and minimum wage requirements
keep changing. Disability access isn’t a regulation that small business owners
feel is “up there” with the others. They know that if they don’t comply with
health codes they can lose the business, and the same if they don’t abide by
minimum wage requirements and many others.
[120]
If the ADA is “just another regulation”—but one that the
government fails to check or enforce and that boasts few qualified plaintiff
attorneys—the average small businessperson will not choose to expend resources
on trying to understand Title III’s complexities or finding and hiring an
expert.
Inertia and Motivation
One of the most striking aspects of Title III is its “hybrid”
nature. Congress intended to, and did, enact a sweeping civil rights law for
people with disabilities, as evidenced in the
ADA
’s
stated purpose: “to provide a clear and comprehensive national mandate for the
elimination of discrimination against individuals with disabilities.”
[121]
For the disability community and disability advocates, the law is about
stopping the discrimination that has prevented people with disabilities from
fully entering the mainstream of American life. At the same time, the
ADA
’s
primary and immediate impact for many public accommodations, especially the
very small businesses to which Title I does not apply,
[122]
is purely regulatory. Title III’s often detailed directions for the achievement
of physical accessibility feels just like the state building code regulations
that establish standards for the built environment, but with the distinct
disadvantage of a lack of broad government presence and enforcement in the form
of local plan and building inspection. There is even less official regulatory
supervision of the requirement that all businesses proactively make changes in
existing structures where readily achievable.
[123]
If the regulatory authorities that small businesses deal with daily pay far
more attention to the minutia of building standards than enforcing meaningful
access to goods and services for people with disabilities, then those
businesses will come to view Title III violations as just a failure to measure
correctly and not a denial of civil rights.
This perceived split between the
ADA
’s
broader goals and the importance of executing ADA Accessibility Guideline
(ADAAG) details—which for some people with certain disabilities may mark the
critical difference between independence and exclusion—to some extent underlies
all noncompliance with Title III. One architect who is himself a small business
owner and was a participant in the San Francisco Collaborative said that “the
majority of the small business community doesn’t equate access with
discrimination.”
[124]
Many small business owners do not see how the couple steps that have always
been there or the small restroom that no one else has a problem using could be
the kind of discrimination that they would associate with a refusal to serve
someone on racial grounds, for example. Under the law, though, a business in an
existing building that does not undertake readily achievable barrier removal is
discriminating against those who are unable to enter or use a service because
of those barriers.
This is not just a theoretical discussion. There is clearly a
profound communication gap between the disability community and disability
advocates and attorneys, and the business community that is responsible for
implementing Title III. Many very small businesses in particular profess to be
unaware of the
ADA
or unaware that
they are doing anything wrong by offering alternative services to customers
with disabilities; they do not think about whether barrier removal would enable
customers to independently gain access to goods and services. The section on
voluntary compliance illustrates a basic inertia and reluctance to expend
resources; businesses must overcome this reluctance when “compliance requires a
more proactive step than merely removing a “whites only” sign and may entail
what is perceived to be a significant expense.”
[125]
But when businesses believe they have not done anything wrong, they are not
motivated to expend time and money on barrier removal. Small businesses are
difficult to reach collectively with accurate information; and in both rural
and urban areas, small business owners tend to pay more attention to
word-of-mouth and what their peers are doing. One commentator cites the
prevalence of Internet and phone shopping, and the fact that it may not be
worthwhile for someone with a disability to make the effort to go out if only
one or a few stores are accessible:
There may thus be a substantial network effect to
retail accessibility. If so, one business can reap the benefits of accessible
facilities only if many other businesses make their facilities accessible as
well. Without some assurance that other businesses will remove barriers, an
individual business may lack the incentive to do so itself.
[126]
Since businesses may experience very little internal or
economic motivation to comply with Title III, the importance of external
motivation in the form of public or private enforcement is critical. The
weaknesses of administrative and private enforcement under Title III have been
discussed above, but additional issues arise, depending on the context of
enforcement. The small and specialized bar familiar with the complexity of
Title III litigation may be ideologically or personally committed to developing
a further expertise in a specific type of discrimination (e.g., failure to
provide alternative formats for people with visual disabilities); is unlikely
to be available equally across the country; and is not necessarily prepared to
focus on small business entities. In other words, any person with any
disability who wants to enforce his or her rights may have tremendous
difficulty finding an attorney nearby who is willing and able to give advice on
and handle the specifics of the case. These chances are even slighter as the
area of expertise narrows, as it would if a person with a mobility disability
were looking for an attorney competent in the ADA Accessibility Guidelines. In
discussing the aftereffects of Buckhannon,
one commentator warned that ADA Title III litigation and compliance could
become concentrated “in urban areas where there are established and adequately
funded disability rights public interest groups, leaving rural areas behind.”
[127]
Moreover, there will never be enough public interest resources to address even
a fraction of access problems in urban areas.
Another difficulty in enforcing Title III compliance
effectively in rural areas and small towns was noted in one of the judicial
focus groups. A participant who worked as a judge in a rural area said that
attorneys in his jurisdiction have two disincentives to bringing disability rights
cases: “One, it’s a highly technical area; and two, it would mean having to
take on their friends who own the local businesses.” Even if an attorney is
familiar or willing to become familiar with Title III, a plaintiff still has to
be found who is willing to pursue access to the point of litigation if
voluntary compliance does not occur. In parts of the country where everyone
knows everyone else and daily lives are deeply entwined, plaintiffs run a huge
personal risk of being branded as troublemakers for insisting that businesses
make physical or procedural changes that would allow independent access. These
factors can make it particularly difficult for people with disabilities who
live in rural areas or small towns to bring a lawsuit or act as the external
motivators to compliance for the small businesses in their community.
Disincentives
Assuming that a business knows about the law and is
sufficiently motivated to work through the law’s complexity to determine its
ADA
obligations, there are still rational disincentives to compliance. Whether the
costs of compliance and barrier removal are minor or significant, there is an
economic rationale for choosing to pay those costs later rather than sooner,
especially if a business is not already committed on principle to “doing the
right thing.”
Businesses might calculate that it is cheaper to not
comply, since statutory enforcement is unlikely to be as expensive as
compliance from the date of enactment of the
ADA
.
In other words, a business that is sued in the year 2000 for failing to comply
with ADA Title III may have benefited for ten years by saving money on an
auxiliary service or device. Prospectively offering that device and paying a
modest compensatory award to an individual victim of discrimination as a result
of enforcement activity may be cost-effective.
[128]
This is especially true in states whose laws do not offer the
possibility of recovering compensatory damages for violations of state and
federal disability laws. If a business cannot be held monetarily liable for the
inconveniences, increased costs, injuries, or humiliation that people with
disabilities endure when the business has failed to engage in readily
achievable barrier removal, why should the business pay for anything until it
is forced to do so? This is especially the case if a business owner believes
that customers with disabilities do not or will not patronize his or her
business even if it is accessible. Why invest money now for the chance of
gaining hypothetical customers or avoiding a lawsuit that may never happen?
[129]
Over the past five years, another distinct disincentive to
compliance has sprung from the fear and anger that has been generated in the
business community by “serial litigation,” which is discussed in the following
section. Regardless of one’s opinion of serial litigation tactics and the
actual dimensions of the problem, stories of family-owned businesses forced to
close because they were targeted by greedy lawyers and plaintiffs with
disabilities have generated negative public opinion, as well as anxiety among
the business community.
If businesses could easily, quickly, cheaply, and permanently “inoculate”
themselves against such lawsuits, the alleged prevalence of Title III
litigation should lead directly to increased compliance. The complexity and
flexible nature of the readily achievable barrier-removal standard and the
rarity of competent physical accessibility expertise means that businesses can
not achieve compliance so readily and painlessly. Instead, some public accommodations
refuse to participate in or publicly sponsor educational seminars on Title III
obligations, and spurn offers of free technical assistance and accessibility
surveys in a bid to totally remove themselves from notice. This irrational
response is fanned by media and anecdotal evidence that a business will be sued
anywhere, anytime for the slightest Title III violation, and causes some
businesses to try to ignore obvious or easily fixable access barriers. Another
irrational business response to serial litigation that can act as a
disincentive to compliance is the urge to fight enforcement on principle; in
this case, the time, money, and effort that could have gone into barrier
removal is spent instead on litigation.
[130]
Such stands on principle may play well on the news and mobilize industry
associations to lobby for legislative and policy changes, but they do little to
foster broader overall awareness of how to comply with Title III obligations
and achieve accessibility.
This analysis of the underlying and interconnected reasons for
widespread noncompliance with Title III also highlights the complex reality of
what is needed to support broad social change. There is need for the consistent
reiteration of a clear, attainable goal that is adequately supported by ubiquitous
notice of one’s obligations under the law, as well as technical support for
achieving compliance. There is need for strong administrative compliance, and a
widely and wisely exercised right of private litigation that will help
publicize and ensure motivation for compliance among all public accommodations.
Public accommodations, as well as the broader public, must come to recognize
that inaccessibility under the
ADA
is discrimination and is socially unacceptable as well as legally actionable.
Currently, noncompliance with structural and other policy and communication
modifications required by Title III is so deeply embedded that it requires an
attack on all fronts to overcome the longstanding inertia and the more recent
fearful responses to the threat of litigation that stand in the way of people
with disabilities achieving their civil rights. We have entered a long
struggle, and we have not yet reached the “tipping point,” when enough
businesses will have become compliant that accessibility will be the physical,
social, and economic norm of American life.
D. Title III and Serial Litigation
While the above discussion has established that there is an ongoing
need for a strong private right of action and an available expert disability
bar, members of the business community, the defense bar, Congress, and the
federal judiciary have raised serious concerns about Title III lawsuits
variously and colorfully described in the press as “drive-by,” a “shakedown,”
or a “cottage industry” driven by the “economics of attorney fees.” These
concerns raise allegations that a few individual and organizational plaintiffs
and attorneys have taken advantage of the widespread lack of compliance to
bring vexatious lawsuits that are motivated more by personal profit motives than
by a desire to bring about genuine compliance with the law. Unfortunately,
these concerns have prompted some business associations and legislators to
propose solutions
[131]
that risk further undercutting Title III implementation in an attempt to curb
the alleged excesses of a limited number of known individuals working in a few
states.
[132]
While it is very difficult to assess the full extent of the
allegations, it is possible to at least begin to assess their factual outlines
by looking at some figures gathered from federal courts for the year 2005. The
Public Access to Court Electronic Records (PACER) Web site
[133]
enables subscribers to gain access to court records of all cases filed in all
U.S.
federal court districts. When attorneys initiate a civil case by filing a
compliant, they must indicate the nature of suit (NOS) on a cover sheet.
[134]
There are two ADA-specific topic codes: Title I complaints are filed under the
445 NOS code, while all other
ADA
and disability rights cases are filed under the 446 NOS code. In a search for
all 446 cases filed in federal district courts between January 1 and December
31, 2005, the raw number obtained was 1,383 non-Title I ADA and other
disability rights cases. For our purposes, this total is both over- and under-inclusive.
It includes cases brought under Titles II (government entities), III, and IV
(telecommunications) of the
ADA
, as
well as cases brought under the Individuals with Disabilities Education Act
(IDEA) against school districts and state education departments. On the other
hand, the figure does not include cases that were incorrectly designated by the
filing attorney as 445 (Title I) or 440 (other civil rights) cases when they
were actually Title III cases.
[135]
The following is a closer examination of the numbers that attempts to correct
for at least some of these possible errors of over- or under-inclusion.
[136]
California, Florida, Hawaii, New York, and Texas federal
courts, in declining order, had the highest number of 446 filings,
[137]
collectively accounting for 969 (70%) of the 2005 total of 1,383 446 filings.
California
had the greatest number of 446 filings by far in 2005: 576 (41.6%). The vast
majority of
California
’s 446
cases (533) were filed in either the Central or Eastern District by many of the
same attorneys, who tended to represent only a few plaintiffs. One attorney,
who is also a person with a disability, filed more than 100 Title III lawsuits
in the Eastern District on his own behalf in the first half of 2005. Two
attorneys in the Central District worked together to file 47 Title III lawsuits
in the same period. Most of the complaints specified physical accessibility
problems involving entrances, restrooms, and store counters, and an estimated
90 percent of the cases were dismissed within a year by voluntary agreement of
the parties or through settlement. The defendants included small privately
owned businesses as well as larger chain stores and restaurants. When
complaints likely filed under Title II and IDEA are excluded, there are 506
cases, at most, that could be Title III cases. Since 23,910 civil cases were
filed in federal district trial court in
California
in
2005, Title III cases made up 2.4 percent of
California
’s
civil cases.
[138]
In
Florida
, 169
cases were filed in 2005 under the 446 NOS code; at most, 110 of these were
Title III cases. Of the 110, 104 were filed on behalf of one of five individual
plaintiffs or four disability advocacy groups working with a small group of
attorneys. In
Hawaii
, only 46 of
a total of 103 NOS 446 cases were filed under Title III. While many of Hawaii’s
complaints cannot be accessed through PACER, of the 19 Title III cases that
could be examined, four were filed on the same day by a single attorney and two
other plaintiffs filed eight of the cases within a six-month period. In
New
York
, 67 cases were filed; 28 of these were Title III
cases. In
Texas
, 41 Title III
cases were filed out of a total of 54 NOS 446 cases. (In
New York
and
Texas
, there is less evidence
of multiple filings by the same attorneys or plaintiffs.)
It is possible to look at these numbers and see a story of
litigation abuse. The same handful of plaintiffs and attorneys is repeatedly
bringing lawsuits against dozens of businesses for remarkably similar
allegations of physical access violations under federal and state law.
Furthermore, as business associations and media often report, these lawsuits
are brought in federal court for Title III violations but are joined with state
access law claims that provide for the compensatory damage recovery that is
missing under Title III. All five of the states mentioned above have some form
of compensatory damage relief in their state laws banning disability
discrimination in public accommodations.
[139]
The common accusation is that state damage provisions, together with federal and
state provisions enabling the recovery of attorney fees, are used by “serial”
plaintiffs and attorneys to file similar lawsuits against small businesses that
are ignorant of their Title III access obligations and will quickly pay the
excessive sums demanded by plaintiffs and their attorneys rather than risk
going to court. Moreover, the charge continues, the Title III violations that
supposedly were the bases of the complaints often continue to go unremedied
after settlement, and access for people with disabilities is not achieved.
On the other hand, consider the state of private enforcement
under Title III without “serial litigants.” In
Florida
,
for example, if all the Title III actions brought by a small group of nine
individuals and advocate organizations were somehow prevented, there would have
been six Title III cases filed for
the entire state in 2005. Even if every one of these six cases dealt with
physical access violations in small businesses, it strains credulity to suggest
that only six establishments in
Florida
were inaccessible to people with disabilities in 2005. Similarly, there are
approximately 109,000 private businesses in San Francisco, according to that
city’s Economic Development Office, and about 85 percent are small businesses
that employ anywhere from 1 to 100 people.
San Francisco
is in
California
’s Northern
federal court, where a mere six Title III access claims were filed in the first
six months of 2005. This is the situation in a city where one small business
participant in the San Francisco Collaborative recently asserted that over 50
percent of his fellow business owners were obviously inaccessible.
[140]
Without minimizing the concerns of small business owners who feel defenseless
against the few unscrupulous practitioners and plaintiffs who bring vexatious
lawsuits and far more
ADA
technical
expertise to the table, it is still clear that Title III is overwhelmingly
underenforced in most of the country. Only 414 NOS 446 cases were brought in
federal court in 46 states (including the
District of
Columbia
) in 2005, and these cases encompass not only
complaints brought under Title I and IDEA but also the broad gamut of Title III’s
access and modification requirements.
[141]
This is far from a national “flood” of litigation, especially in the face of
acknowledged widespread noncompliance with the
ADA
’s
readily achievable barrier-removal provisions, the aspect of public
accommodations accessibility that has garnered the greatest controversy.
[142]
Concerns raised about state law and the risks of remedial
damages as encouraging overlitigation of Title III also seem to be overblown. A
number of states have remedial provisions that extend beyond those of Title III
by allowing for compensatory damages. These states include
Vermont
,
[143]
Oregon
,
[144]
Kentucky
,
[145]
and the
District of Columbia
,
[146]
yet the federal courts in these states have not seen a surfeit of Title III
actions. In Kentucky, the state disability discrimination provisions recognize
a private right of action, provide for minimum statutory damages of $1,000 or
$5,000 (if the violation was committed intentionally or recklessly) for each
violation, enable courts to award attorney fees, and do not limit the right of
aggrieved people to damages under any other applicable law.
[147]
Yet only two Title III cases were filed in that state’s federal courts in 2005.
Even though Kentucky does not set as high a statutory minimum for damages as
California, which allows for the greater of three times actual damages or
$4,000, Kentucky state law supplements Title III in the same way as the state
laws of those districts in which serial litigation is a concern. Yet not only
is serial litigation absent, state compensatory damages have been insufficient
to overcome the systemic disincentives to private litigation discussed in the introduction.
The picture of insufficient private enforcement of Title III
is supported by the appellate case review findings of
ADA
scholars.
[148]
Professor
Ruth Colker searched for reported appellate-level decisions filed under Title
III between June 1992 and July 1998 and found just 25, concluding that “only 5
percent of the reported appellate cases are therefore ADA Title III cases.”
[149]
Professor Colker also examined available verdict data services available in
different regions of the country and concluded that out of 109 verdicts in ADA
cases heard in state or federal court by September 28, 1998, only 16 (about
16%) were brought under Title III.
[150]
She attributed the small number of cases to Title III’s limited remedial scope.
[151]
Professor Michael Waterstone extended Professor Colker’s research, searching
for and analyzing reported appellate-level cases brought under Title III
between the
ADA
’s passage in 1990
and the end of 2004; he found 82.
[152]
In his analysis, Professor Waterstone writes:
Considering the convergence of no damage remedy and
the increasingly doubtful prospects for attorneys’ fees, the low number of
Title III cases at the appellate level (79 [excluding three Title III cases
brought against two distinct entities]) makes sense. Individual plaintiffs have
very few incentives to bring these cases. The numbers bear this out: only 17 of
79 cases in my Title III database were brought solely by private
plaintiffs—i.e., where a public interest organization was not involved as a
plaintiff or as a counsel for plaintiff, or the DOJ was not a participant as an amicus or intervener.
[153]
If there is one state where Title III litigation could be said
to approach problematic levels, it would be in
California
,
where a few plaintiffs and attorneys have been behind virtually all the
physical access cases brought in two of the state’s four judicial court
districts. While only 2.4 percent of
California
’s
federal civil court filings are Title III cases, there could easily be twice as
many Title III cases if the state court filings for
California
could be counted.
[154]
In districts where courts have imposed sanctions on serial plaintiffs and/or
attorneys, the latter may choose to file their federal and state law claims in
state court to avoid the impact of the sanctions. Even in federal districts
where sanctions have not been imposed, California plaintiffs may choose to file
in state court to avoid the risk that defendant businesses will fix their
access problems before the court hearing and, according to Buckhannon, moot the plaintiff’s federal accessibility and attorney
fees claims because the fix was not “judicially sanctioned.”
[155]
California
is unusual in that
even after Buckhannon was decided,
the state Supreme Court explicitly continued to recognize the “catalyst theory”
of attorney fees, by which a plaintiff may recover attorney fees as long as the
plaintiff’s actions brought about the primary relief sought by the plaintiff.
[156]
The ability to avoid Buckhannon by
not filing in federal court is only possible in state courts that continue to
recognize the catalyst theory for recovering attorney fees or, at the very
least, do not follow Buckhannon in
its requirement for a “judicially sanctioned” change in the parties’
relationship.
In
California
’s
Central District, one court has characterized a plaintiff’s filing of hundreds
of Title III lawsuits as “vexatious,” meriting an order that requires the
plaintiff “to file a copy of this order with every new complaint that he seeks
to file.”
[157]
Even in this case, however, the court also noted that “[i]t is possible, even
likely, that many of the businesses sued were not in full compliance with the
ADA
.”
[158]
And even in
California
there is
no uniform judicial opinion on the vexatious nature of serial litigation. In
the Eastern judicial district of California, which has also seen hundreds of
Title III physical access filings, a court denied a defendant’s motion to have
the plaintiff, who had more than 40 Title III cases under his belt, declared a
vexatious litigant. In doing so, the court found that the defendants lacked
standing to bring the motion because they could not show that “they are the
subject to [sic] a frivolous lawsuit because they, in fact, have not violated
the
ADA
. They have failed to
demonstrate compliance with the statute.”
[159]
Moreover, the court recognized that “the number of lawsuits plaintiff has filed
does not reflect that he is a vexatious litigant; rather, it appears to reflect
the failure of the defendants to comply with the law.”
[160]
The court answered accusations leveled at the plaintiff’s attorney by wondering
“why uniform instances of misconduct do not justify uniform pleadings.”
[161]
Title III’s private right of action needs to be effectively
and broadly wielded if it is to make an impact in a sea of noncompliance.
Currently, however, serial litigants are virtually the only ones bringing Title
III actions. At the same time, the force of the anger and public backlash that
have been generated among the business community by some serial litigants’
arguably indiscriminate choice of defendants and controversial use of multiple
filing tactics may inhibit the private right of action’s effectiveness over the
long term. The central problem is that any attempt to curtail the actions of
serial litigants by limiting Title III’s private right of action will
inevitably lead to limiting implementation of the
ADA
by further restricting a private right of enforcement that is already severely
limited. Even if every one of the total number of non-Title I ADA cases brought
in 2005 (1,383) was an actual physical access case, there really is no dispute
that there are more than 1,383 public accommodations in the
United
States
that are inaccessible and out of compliance with
the
ADA
. Any one of those cases could have been brought by a different
plaintiff among the thousands of Americans with disabilities who lack equal
access to publicly sold goods and services.
[162]
The fact that this did not occur is more indicative of how difficult it is for
the average person with a disability to find and hire a competent attorney and
bring and maintain a Title III lawsuit than it is a sign that there are too
many vexatious litigants.
Ultimately, it is not possible to draw a clean line between “good”
litigants and serial litigants. The serial litigant is simply the attorney
and/or plaintiff who has figured out a way to bring Title III actions despite
all the roadblocks. Having figured that out, he or she has no reason not to
continue, given the existence of such widespread noncompliance. Professor Samuel
Bagenstos pinpoints this fact when he observes—
Those lawyers who bring ADA public accommodations
cases in the face of the disincentives created by the fee-shifting rules are
likely to fall into one or more of three categories: lawyers with atypically
low litigation costs; lawyers with atypically good ability to determine which
cases are likely to succeed (and thus generate a fee award); and lawyers with
ideological motives. Serial litigants are likely to populate each of these
three categories. The
ADA
’s rules
governing physical accessibility are highly complex, detailed, and contextual.
Lawyers are thus likely to experience a high fixed cost in familiarizing
themselves with and internalizing those rules. But once an attorney has handled
a number of accessibility cases, the additional cost of learning the rules
governing a new case drops. . . . specialization will also enable the attorney
to recover higher fees—both by justifying a higher “lodestar” rate, and by
making possible more effective screening of cases. . . . Finally, lawyers and plaintiffs
who are ideologically motivated are not likely to stop with making only one
business accessible when so many others are violating the law.
[163]
There may be plaintiffs with disabilities and attorneys who go
over the line and bring lawsuits that are factually unjustified, wrongly
motivated, or marred by some collusive element or other unethical conduct. Such
parties and attorneys can and should be sanctioned, and this, in fact, has
occurred.
[164]
However, if the Title III private right of action is weakened or restricted in
a misguided attempt to control serial plaintiffs and attorneys, but no measures
are taken to strengthen the ability of the average person with a disability to
bring a private lawsuit, not only will physical accessibility among public accommodations
come to a halt, but all the other nondiscrimination requirements of Title III
compliance will suffer as well.
Existing Ways of Dealing with Vexatious Litigation
The federal judiciary is not powerless against plaintiffs and
attorneys who bring vexatious litigation, defined as a “lawsuit instituted
maliciously and without good cause.”
[165]
All district courts “have the inherent power to file restrictive prefiling
orders against vexatious litigants with abusive and lengthy histories of
litigation.”
[166]
A number of federal courts in those districts of
California
and
Florida
in which the great majority of Title III
serial litigation has been filed have devised numerous ways to impose limits on
a litigant’s repeated filing of access lawsuits in the district and an attorney’s
right to fees under the
ADA
’s
fee-shifting provisions.
One of the earliest cases to sanction a Title III plaintiff in
some way was the Florida decision of Rodriguez
v. Investco, L.L.C.
[167]
The court did not make an explicit reference to frivolous litigation but did
find that the “Plaintiff was evasive and willfully ignorant, totally lacking
credibility” and questioned “whether attorney fees should be awarded where no
effort is made pre-suit to obtain voluntary compliance.”
[168]
Since the plaintiff lost the case, he was in any event ineligible for attorney
fees, but the court also awarded costs assessed against the plaintiff.
[169]
Since then, numerous courts in Florida and California have noted and extended
the question raised by Judge Presnell concerning attorney fees, and have
exercised their discretion under Title III
[170]
to deny attorney fees when no pre-suit demand letter was given to the
defendant.
[171]
One
Florida
court presented a
variant on the denial of fees when it exercised its discretion to deny the
plaintiffs’ demand for attorney fees, expenses, and costs after settlement of
Title III litigation, except for the amount that defendants’ attorneys conceded
as reasonable.
[172]
Another
California
case involved the imposition of sanctions specifically aimed at curtailing
future filings from a specific plaintiff and attorney firm. In Molski v. Mandarin Touch Restaurant,
[173]
the court invoked its “inherent power to levy sanctions in response to abusive
litigation practices” as well as its authority under the Central District’s
Local Rule 83-8 to fashion “appropriate orders to control” vexatious
litigation.
[174]
The court analyzed the plaintiff’s access filings in the aggregate to find that
“the allegations contained in Plaintiff’s complaints are contrived and not credible,”
and “even if the businesses sued by [the Plaintiff] were in violation of the
ADA, this fact is outweighed by the Court’s finding that he acted in bad faith,
for the improper purpose of extorting a settlement.”
[175]
After considering additional factors relating to the plaintiff’s motive,
representation by counsel, and the adequacy of other sanctions, the court
imposed a prefiling requirement under which the plaintiff would have to seek
the court’s leave and file the Mandarin
Touch order before filing any new complaint in the Central District. The
court concluded that such a specific prefiling order protected not only the
court and defendants but also the “purpose and spirit of the
ADA
,”
because it prevented abuse and “does not limit the right of a legitimately
aggrieved disabled individual to seek legal relief under the
ADA
.”
[176]
The Mandarin Touch court subsequently
exercised its inherent power to issue a similar prefiling order against the
attorney firm that represented the plaintiff in Mandarin Touch. The court’s finding was based on its review of the
firm’s litigation history “of giving unethical advice [to unrepresented
defendants], making questionable allegations of physical injury, pursuing
excessive compensatory damages, and securing quick settlements.”
[177]
Rule 11 of the Federal Rules of Civil Procedure offers another
procedural route to control vexatious litigants.
[178]
Rule 11 builds on and expands the federal court’s equitable power to impose
sanctions against a litigant who acts in bad faith in instituting or conducting
litigation. Rule 11 requires a
ruling on the merits, and the applicant must bring a separate motion,
[179]
but a court may also raise the rule on its own and enter an order requiring an
attorney, law firm, or party to show cause why specified behavior has not
violated Rule 11.
[180]
In
general, the courts have relied more on their inherent discretion in imposing
sanctions against Title III vexatious litigants rather than on Rule 11.
Nonetheless, Rule 11 gives courts a number of tools for controlling vexatious
litigants, ranging from an order to pay all or some of the opposing party’s
reasonable attorney fees and expenses incurred by the violation to nonmonetary
directives such as striking an offending pleading or referring the matter to
disciplinary authorities.
[181]
The court is able to consider such factors as whether the conduct in question
is part of a pattern or activity, whether the person has engaged in similar
conduct in other litigation, and what sanctions are needed to deter similar
behavior in other litigants.
[182]
Another means of imposing sanctions on attorneys who engage in
vexatious litigation or unethical legal practices is to complain to the state
bar where they practice and are members, as a violation of state ethical
cannons and local rules could lead to various penalties and even disbarment. A
less formal but nonetheless effective potential “sanction” in this period of
considerable public backlash against access litigation is the impact of being
labeled as someone who brings excessive litigation. As one commentator
observed—
The experience of the lawyers who have filed the large
number of suits in
South Florida
shows that demanding
high fees has been more successful in generating bad publicity than as a
litigation tactic. They have collected only a small amount of attorney fees,
been the subject of a bar complaint and even been discredited within the
disability community. . . . [W]hile these attorneys may be filing a large
number of ADA Title III claims and making high fee demands, there is no evidence
that the judges are automatically acquiescing to the fee requests or that their
actions will generate more lawsuits.
[183]
The cases described above establish that federal courts
already have the discretion and authority to impose sanctions on litigants who
bring abusive litigation intended to needlessly harass or extort defendants, or
attorneys who engage in the unethical practice of law, regardless of the law
under which suit is brought. None of these cases, however, should necessarily
be endorsed as an appropriate or desirable way to deal with serial litigants
under Title III, since many factors besides harassment can enter into a
plaintiff’s or attorney’s decision to bring multiple lawsuits under Title III.
It is possible to argue, for example, that filing a large number of access
lawsuits in one small town or region is the most effective way to bring about
broad compliance in the region and enables defendant businesses to work
collectively with one defendant attorney or firm.
[184]
The behavior of the few Title III plaintiffs and attorneys who have truly
engaged in unethical conduct or vexatious litigation should not be used as the
basis for devising rules of general application on standing or rewarding
attorney fees for all Title III ADA plaintiffs and attorneys. Some
California
courts, at least, have distinguished clearly between the imposition of
sanctions on unethical Title III litigants and preventing plaintiffs and
attorneys from fully exercising their rights under federal or state
accessibility laws. One court that declined to condition its reward of
plaintiff’s attorney fees on the giving of clear and unequivocal pretrial
notice to the defendant stated that “[t]o be sure, there are excesses and
abuses in the prosecution of
ADA
cases. . . . But the Court cannot find a basis in those abuses to create an
impediment to recovery of statutory relief where the individual case is
meritorious.”
[185]
E. Conclusion and Recommendations
This examination of the private right of action under Title
III will conclude with a closer look at one example of serial litigation, filed
over approximately one month, that exemplifies many of the issues that have
been raised. In early 2005, Gina Hackel, Ms. Wheelchair Wisconsin 2004, filed
lawsuits in federal court alleging
ADA
violations against
24 businesses in
Fox
Valley
,
a region in
Wisconsin
with 16
towns, villages, and cities. Hackel lived in
Fox
Valley
and was represented by a well-known law
firm from
Florida
—Schwartz Zweben
& Associates—that had brought hundreds of Title III lawsuits in that state
on behalf of people with disabilities. The defendants ranged in size from
individually owned small businesses to larger chain stores and the town’s Regal
Cinema. In accordance with her right of private action under Title III, the
plaintiff did not issue demand letters to the defendants before filing her
complaints in federal court.
Bruce Hohol, owner of HoHo’s Café, was one of the first to be
sued. Initially, he did not take the lawsuit seriously, partly because he
serves a clientele that includes many seniors and people with disabilities, who
are always assisted over the two entrance steps as a matter of course.
[186]
While Hohol had heard of the ADA, he believed he was obeying the law and said
he was informed by a Fox Valley’s mayor, city attorney, and building inspector
upon his inquiry that his facility was “grandfathered in” and he did not have
obligations under the law. Once he became aware that other businesses were
being sued, he tracked filings daily by calling the courthouse, and took the
unusual step of obtaining and reading a copy of the entire law so he could
understand it for himself. Seeking assistance, he called an obscure phone
number recorded in the law that led him to someone who, in turn, referred him
to Robin Jones, director of the Great Lakes ADA and Accessible IT
Assistance
Center
(
Great Lakes
ADA
Center
).
It was the first time Hohol had heard of the person or the organization.
[187]
Twelve of the smaller businesses, including HoHo’s Café,
banded together to retain the services of Robert Shumaker, a Wisconsin attorney
who already represented one of the businesses on other matters.
[188]
As Shumaker explains it, the group’s primary goal was to minimize the plaintiff’s
attorney fees as much as possible. With that objective, Shumaker went to court
and filed papers asserting that the 12 businesses admitted being out of
compliance, had no objection to having their premises surveyed by an
ADA
expert, and agreed to come into full compliance in accordance with the survey
findings. Since the plaintiff was suing purely for injunctive relief under
Title III, the defendants’ action essentially mooted the plaintiff’s case
against them, since there was no live issue to argue before the court. The
parties reached a settlement under which the businesses would be inspected for
ADA
compliance by a licensed Wisconsin architect or a qualified
ADA
consultant of their choice, with a report given to the plaintiff within 90
days. The plaintiff could dispute the findings of the report but had to give
the defendants 90 days’ notice and an opportunity to correct any alleged
deficiencies before returning to the court. The court could award attorney fees
and costs to the defendants if it did not agree with the plaintiff’s
objections.
The executive director of the Heart of the Valley Chamber of
Commerce, Bobbie Beckman, describes the level of
ADA
awareness among the Valley’s business community before the litigation as very
low or nonexistent, with most businesses relying on local building inspectors
to tell them if their facility was out of compliance with the law.
[189]
The litigation created tremendous anger in the community. There was a common
feeling that outsiders (e.g., the attorneys from
Florida
)
were coming into town to extract fees from local businesses and that the entire
situation could have been resolved differently if the plaintiff had simply
addressed them individually as a customer who wanted to eat or shop in their
establishments. While these sentiments are not uncommon among defendants of
serial litigation, what happened in
Fox
Valley
after the settlement is
somewhat unusual. The communities rose above their resentment of the litigation
and did not display a “bunker mentality” by ignoring the federal law’s
requirements. Rather, the Chamber and the
Great Lakes
ADA
Center
worked together to offer two very well-attended seminars and technical
assistance to “open a line of communication, educate the public and business
owners, and dispel some of the myths, fears, and concerns that have arisen from
the recent complaints filed against our local businesses.”
The
Fox
Valley
litigation achieved a number of positive outcomes. The businesses that were
sued achieved compliance with Title III and increased accessibility for people
with disabilities in the Valley; there was greater ADA awareness throughout the
region’s business community and general public; and compliance and technical
assistance resources were widely disseminated. Nonetheless, there is
considerable stakeholder disagreement on the real impetus behind such changes,
the role litigation can or should play in bringing about compliance, and
whether there are realistic alternatives to litigation.
Beckman recognizes that the lawsuits ultimately achieved good
results throughout
Fox
Valley
but questions whether lawsuits were the only way to obtain change. She knows
that a couple small businesses closed down because they did not think they
could afford the required changes and recalls that some businesses were
unwilling to be publicly identified with the post-litigation education
seminars, either as sponsors or as hosts, because of their fear that the
plaintiff and her attorneys would come, scope out the place, and target them
for the next round of lawsuits. While Beckman agrees that business organizations
such as her own are the best vehicle for providing
ADA
educational outreach to small businesses in rural areas and small towns, she
also acknowledged that the seminars would likely not have happened without the
lawsuits and was hard-pressed to think of suggestions for getting sufficient,
prompt attention from business organizations without bringing litigation.
For his part, Hohol remains deeply convinced that all the
positive results in Fox Valley, and more, could have been attained if people
with disabilities and the business community had sat down together and
cooperatively figured out how to achieve accessibility. He admits that he is
still angry about having to spend money on unnecessary litigation when a
personal approach would have accomplished the same thing. He says he would have
been willing to check out for himself what the law says, then work to come into
compliance. Hohol admits, though, that he can speak only for himself and his
community, and cannot vouch for how well voluntary compliance would work in larger
cities. Hohol’s perceptions and conviction contrast with those of plaintiff
Hackel, who told local
Wisconsin
newspapers that “the
lawsuits followed years of frustration in trying to persuade area
municipalities and businesses to comply with the 15-year-old law.”
[190]
Hackel’s view was echoed by another
Fox
Valley
wheelchair user, who said, “You
can talk to these people until you’re blue in the face, but they’re not going
to spend any money unless they have to.”
[191]
The attorneys involved in the settlement also reflect opinions
that go beyond resolution of the immediate lawsuits. Defense attorney Shumaker
is “very happy” about how his litigation strategy worked to keep plaintiff
attorney fees low but also holds the strong opinion that bringing federal court
litigation without written notice to a defendant is deeply unfair, even though
there is nothing that requires such notice in the ADA or in other civil rights
laws.
[192]
Shumaker’s desire to see some kind of 90-day notice provision in Title III
seems to be based at least in part on his certainty that attorneys who bring
serial lawsuits without warning are primarily intent on provoking a lengthy
legal battle before settling for large fee awards, and only secondarily seeking
increased accessibility. This characterization does not necessarily ring true.
The plaintiff and her attorneys did not seek damages for disability
discrimination, which are available under
Wisconsin
state law.
[193]
Gene Zweben, the plaintiff’s attorney, seems sincerely pleased about the
results attained in
Fox
Valley
,
focusing on how access barriers were removed and reduced throughout the region
as a result of the lawsuits. Zweben recalls the defense attorney as someone who
“understood what needed to be done to make places more accessible,” found that
the defendants in Fox Valley were generally ignorant of the law and not eager
to make readily accessible changes or accommodations, and feels that people
with disabilities must self-advocate for their rights, since DOJ does not have
the staff to investigate Title III violations all across the country.
[194]
For the business community in
Fox
Valley
and their attorney, the fact
that they did not receive prelitigation notice is seen as dishonorable,
evidence of greed, and indicative of a lack of real interest in greater
accessibility.
[195]
This attribution of bad motive to the other side makes it easy to justify
following a course of action that, above all, is aimed at bypassing or
minimizing the plaintiff’s right to request attorney fees. However, even the
most idealistic attorneys understandably wish to be paid for their time. The
defense attorney in
Fox
Valley
,
when asked, indicated that he could understand a lawyer’s desire to be
compensated for prelitigation time that is spent listening to a client’s story,
checking out the facts and the business, doing research, and calling or sending
a letter on a client’s behalf. The kinds of barriers that are removable under
the “readily achievable” standard—for example, reversing the direction in which
a door opens or adding signage or adjusting the height of a grab bar—are the
very barriers that can be easily fixed before a lawsuit is brought, leaving
attorneys who choose not to charge their clients up front without recourse to
fees, because the problem has been fixed. There is no way to guarantee that an
attorney is not motivated by a greedy desire for escalating fees, but the
failure to give a defendant prelitigation notice cannot be taken as evidence of
such greed in the post-Buckhannon world.
The assertion that “things would have been different” if only
a customer with a disability had made a personal request, or if a demand letter
had been issued before the lawsuit, is as haunting as it is impossible to
prove. Hohol radiates the kind of civic and social responsibility that is increasingly
rare in transient and highly competitive urban environments. Most failed
attempts to create a business and disability community collaboration around
voluntary Title III compliance have taken place in urban centers; not in small
towns and rural areas, where one or a few community business leaders could
potentially mobilize an entire community toward compliance. In tightly knit
national industries, such as cinemas and hotel chains, a litigation strategy
that targeted some of the largest players in the industry helped to secure the
voluntary cooperation and compliance of many smaller players in that industry.
[196]
It remains an open question though, whether broader voluntary compliance could
have been achieved without the “kickstart” of initial litigation.
Whether in an urban or rural context, the broader disability
community’s involvement and the need for some way to resolve individual
resistance and disagreements over determining “readily achievable” changes are
equally necessary. Just as a lack of prefiling notice from a plaintiff attorney
is not necessarily a sign of bad motive, a business’s reluctance to simply take
the word of a customer with disabilities concerning the law is not necessarily
a sign of bad faith or noncompliance. On the other hand, the percentage of
attorneys and plaintiffs who bring Title III lawsuits primarily for self-gain
is minuscule compared with the number of businesses that persist in a
calculated decision to disregard or willfully ignore the existence of
obligations under federal and state accessibility laws. There is a private
right of action under Title III because Congress recognized that voluntary
compliance and collaboration is an unreliable vehicle for providing access, and
that people with disabilities should not be forced to rely on the kindness of
neighbors or strangers.
Perhaps one final illustrative point to take from the
Fox
Valley
lawsuits is that litigation
becomes the flashpoint of anger when it is virtually the only means for a law’s
enforcement rather than a last resort for enforcement. Hackel and her attorneys
did not break any legal rule by filing 24 lawsuits without a demand letter. The
businesses that settled were all noncompliant to some extent. The lawsuits
achieved greater accessibility and encouraged compliance even among businesses
that were not sued. But for the public at large, the question of whether the
defendants all deserved to be sued without notice imports considerations beyond
whether the rules were met. The same 16 years since the ADA’s enactment that
are proof for the disability community of how little Title III entities pay
attention to access rights and compliance are, for some in the business
community, years filled with official misinformation and lack of regulatory
enforcement. The
ADA
’s primary
enforcement mechanism (litigation) differs sharply from the enforcement of health
and safety and fire regulations—where an agent of the state regularly comes to
the business and upholds standards that are universally recognized as necessary
for society at large. Title III is about achieving accessibility and abolishing
disability discrimination for society at large, not about lawsuits.
Nonetheless, it is remarkably easy for the media, business organizations, and
the public to focus on a few “villains” who bring lawsuits, instead of on the
systemic notification, education, and enforcement that are needed to achieve
Title III’s goals.
Fox
Valley
’s
ongoing attempt to increase compliance after litigation is all too uncommon,
and it came about through the leadership and cooperation of the small business
and disability communities as well as some media personalities.
[197]
The disability and small business communities are
both “sympathetic” and have compelling stories to tell. Each community has a
lot at stake. Each side is deeply emotional. And often individuals belonging to
each community genuinely can not seem to understand why the other is so angry.
The following are some broad policy recommendations to maximize the potential
for reproducing the best outcomes from the
Fox
Valley
litigation while bypassing
some of the area’s lingering resentment:
·
The DOJ and all technical assistance
organizations, such as the Disability and Business Technical Assistance Centers
(DBTACs), must be given specific funding and a mandate for outreach to chambers
of commerce, Rotary Clubs, and other small business organizations, especially
those serving rural areas and smaller towns. The assistance and cooperation of
these business associations, as well as any local disability advocacy groups
that work with small businesses, is needed to accurately inform businesses of
their obligation to comply with Title III, to disseminate technical resource
information, and to help lower the current level of tension and fear among
business communities.
·
The accessibility requirements of civil rights
law must be publicly broadcast, acknowledged, and respected at the same level
as other applicable regulations and laws, and equally acknowledged as a
make-or-break issue in running a business. When business and industry
associations work together to foster the idea that the law is unfair and lobby
for legislative change that will weaken the private right of action overall,
they are not doing their constituents any favors and certainly are harming the
prospect for achieving voluntary Title III compliance.
·
Title III compliance cannot depend only on
voluntary compliance from the few business owners who are motivated by either a
personal familiarity with disability or the determination to do the right thing
legally and ethically, regardless of the cost. Nor can compliance depend only
on litigation and the minority of people with disabilities who are willing and able to bring lawsuits. If
private litigation remains virtually the only means of external enforcement
motivating business compliance with Title III, it will likely continue to bear
the brunt of public backlash and industry lobbying. Widespread Title III
compliance cannot be achieved without business and public outreach, a visible
and efficient administrative enforcement procedure, the wide availability of
qualified accessibility expertise, and economic incentives such as tax and
other credits.
But even with these policy changes, the private
right of action remains critical to Title III’s enforcement and must be
strengthened so that a broader range of people with disabilities across the
country can gain access to a more readily available private bar that is
competent to advise, litigate, and settle access claims. As millions of people
with disabilities and the ongoing inaccessibility of much of the country can
attest to, we have not yet reached the point where serial litigation could not
be brought because Title III compliance has become the norm. The following
recommendations concern the private right of action:
·
Effect a statutory repair of Buckhannon’s condition of a “judicially
sanctioned” change in the parties’ relationship for the recovery of attorney
fees under Title III, so that attorney fee-shifting rules will apply if a Title
III plaintiff or would-be plaintiff has been the catalyst for a public
accommodation’s coming into compliance with its Title III obligations.
·
Make compensatory damages available under Title
III.
·
Establish a statutory minimum damages amount for
the denial of access rights under Title III.
II. Class Actions and Settlements
A. Introduction
The enactment in 1938 of Rule 23 of the Federal
Rules of Civil Procedure, governing the circumstances under which class actions
may be brought in federal court, helped the class action to become widely
recognized as an invaluable litigation tool. Class actions are lawsuits brought
by one or more individuals on behalf of a larger group, and they are
significant because any legal victory achieved by the named plaintiffs results
in legal relief on behalf of the entire group, including absent putative class
members. At the same time, any legal settlement, compromise, or dismissal of
the action, once approved by the court, will also bind the entire class. In the
context of the Americans with Disabilities Act, class actions can be used—
·
To require corporate defendants to remedy
discrimination consistently and across geographic and individual circumstances,
rather than on a mere case-by-case basis.
·
To extend the benefits of the
ADA
’s
prohibition on discrimination to individuals who lack the financial and other
resources to hire a lawyer and bring a personal action on their own.
·
To more widely publicize the requirements of the
ADA
and the effects of
discrimination on the lives of people with disabilities.
Like any tool, class action litigation can be abused when it
is used inappropriately. The efficiency, problematic agency relationship, and
costs of class action litigation—especially in such areas as mass tort and
product liability—have been extensively discussed by academics
[198]
and have led to the enactment of various reforms, most recently the Class
Action Fairness Act of 2005 (CAFA).
[199]
CAFA addresses very specific problems often associated with mass tort and
consumer class actions—such as the value of settlement coupons given by the
defendant and the removability of an action to federal court—that generally do
not arise in the ADA context.
[200]
However, CAFA’s provisions apply to class actions filed in federal court after
February 18, 2005, including
ADA
class actions. Even if CAFA’s other changes have little or perhaps even a
negative impact on ADA class actions, the new notice requirements contained in
CAFA’s Consumers’ Class Action Bill of Rights could arguably have a beneficial
effect. CAFA establishes “each defendant to serve an appropriate government
official of each state in which a class member resides, in addition to an
appropriate federal official, with notice of the proposed settlement and
certain specified settlement-related papers, within 10 days of the settlement
being filed with the federal court.”
[201]
In addition, final settlement approval cannot be given until at least 90 days
after this service has occurred.
[202]
Finally, if notice has not been properly given in accordance with these
provisions, class members may refuse to be bound by the settlement.
[203]
The impact of these notice provisions is uncertain at this time, especially
since state and federal officials are not required to do anything in response to the notice, but the requirement in and of itself
slows the process of obtaining final settlement approval and theoretically
makes it harder for the parties’ attorneys to engage in unnoticed collusion.
The specific problems that have arisen in the
ADA
class action context are associated almost exclusively with the settlement of
Title III class action lawsuits. Generally, plaintiffs have been a group of people
with primarily mobility/dexterity disabilities in one state; the defendants
have been corporate entities that operate public accommodations nationally; and
the lawsuits have requested injunctive relief unaccompanied by a demand for
damages. A number of these cases originated around 2000 and drew the attention
of the National Association for Protection and Advocacy Systems (NAPAS; now
known as National Disability Rights Network, NDRN
[204]
),
eventually leading to a teleconference training of NAPAS attorneys on the issue
on October 1, 2002. The problematic cases highlighted at the conference had
settlement proposals that did the following:
·
Used an expansive class definition that
encompassed potentially millions of people with various disabilities throughout
the country, though the class representatives did not necessarily encompass people
with different disabilities and the proposed settlement did not adequately address
the specific concerns of people with nonmobility disabilities.
·
Superseded pending access litigation, foreclosed
for a number of years any future litigation against any of the corporate
defendant’s stores, and required the broad release of access claims under both
federal and state laws without any analysis of the potentially broader state
rights that could be claimed and were therefore given up by the parts of the
class that lived in states with strong disability rights laws.
·
Bound the class members to accept architectural
access standards that are below the undisputed minimum standards set out
explicitly in the ADAAG and provided minimal or no accessibility standards for
certain groups within the class (e.g., people with visual disabilities or deaf
individuals).
The cases also underscored the general difficulty of
monitoring settlement provisions. For a class action settlement to be truly
fair, adequate, and reasonable for a whole class of plaintiffs with various
disabilities, it must, at a minimum, provide adequate relief for the different
types of discrimination and inaccessibility that class members with different
disabilities could face. Adequate monitoring and implementation of
particularized access requirements when a defendant operates numerous existing,
new, and to-be-constructed public accommodations in a wide geographic area
require adequate resources, as well as experience and commitment from, and
ongoing remuneration for, class counsel.
The research summarized here will focus on the key cases and
proposed settlements in which these problems were first raised. We will discuss
a few ongoing cases that exhibit the same problems and review educational
suggestions for plaintiff class action counsel, as well as some alternative
class action proposals obtained from interviews with key disability rights
attorneys working in the area. Finally, there is a sampling of ADA case
settlements in which class action litigation has been used effectively and has
not raised these problems to the same extent, or at all.
B. Problematic Class Action Cases
·
Access
Now, Inc. et al. v. the May Department Store Company, Case No. 00-CV-148
Filed 10/14/00 in
Florida
National class settlement covering all May Company department stores in 49
states
·
Association
for Disabled Americans, Inc. et al. v. Amoco Oil Company et al.
Case No. 98-CV-2002
Filed 08/24/98 in Florida
National class settlement covering approximately 4,000 U.S. Amoco, BP, and ARCO
service stations (excluding California)
·
Association
for Disabled Americans, Inc. et al. v. 7-Eleven, Inc.
Case No. 01-CV-0230
Filed 02/02/01 in Texas
National class settlement covering several thousand convenience stores and gas
stations nationwide
·
American
Disability Association, Inc. v. BFS Retail and Commercial Operations, LLC.
Case No. 01-CV-6529
Filed 04/04/01 in
Florida
National class settlement covering approximately 2,200 Bridgestone/Firestone
tire and service stores nationwide
These are the four key cases and proposed class
action settlements that first sparked concern among attorneys who are familiar
with
ADA
class actions and the ADA
Accessibility Guidelines (ADAAG) specifications. Some NAPAS attorneys and other
Title III practitioners initially noticed the consent decrees because they were
already involved in bringing litigation or negotiating settlement on behalf of
a separate group of people with disabilities in other parts of the country that
would have been superseded by the proposed national settlement.
[205]
When these attorneys reviewed the proposed settlements closely, they discovered
numerous shortcomings.
[206]
Chief among the objectionable aspects:
·
A filed complaint that implicated all the
defendant’s facilities across the country as being in violation of the ADA or
Title III, but only made specific allegations concerning stores in one state
(the May Company complaint focused on access issues at certain Lord &
Taylor stores in Florida;
[207]
12 of the 13 facilities listed in the Amoco complaint are in Florida
[208]
).
·
Little or no court-monitored activity—such as
the initiation of formal discovery concerning defendant’s national policies and
practices or the filing of additional motions—between the filing of a complaint
and the notice that a formal settlement of a proposed class action had been
reached.
·
An extremely expansive class definition that
encompassed people with various disabilities. The 7-Eleven case referred to “all
people with a disability . . . and all entities acting or purporting to act in
behalf of any such people, who could assert a claim under ADA Title III against
7-Eleven.”
[209]
In
the BFS case, the class was even broader, encompassing all those who “have a
claim or cause of action under state, federal or local law or rule because they
are people with Mobility Disabilities, Dexterity, Vision, or Hearing
Disabilities or any other disability covered by title III of the
ADA
.”
[210]
The proposed class definition in the May Company settlement was the narrowest,
referring to “[a]ll people with mobility disabilities who use a mobility aid
such as a wheelchair, scooter, walker, cane and/or crutches.”
[211]
The class proposed in the Amoco settlement encompassed “all people with
mobility, dexterity, vision, or hearing disabilities.”
[212]
·
Inadequate representation of people with various
kinds of disabilities, even though the class purported to encompass these people.
The May Company proposed settlement had the most narrowly defined class, encompassing
“persons with mobility disabilities who use a mobility aid such as a
wheelchair, scooter, walker, cane and/or crutches,” yet the settlement did not
address the lack of accessible parking and a path of travel from the parking
lot to an accessible entrance, the most common complaint of wheelchair users.
[213]
Moreover, a guide dog is a mobility aid, so people with visual impairments who
use guide dogs could fall within the class and be bound by the proposed
settlement. However, none of the class representatives alleged a visual
disability or the use of an assistive animal as a mobility aid.
[214]
A similar limitation was observed by the court in the 7-Eleven case; it found
that “the two individual plaintiffs and the Association [for Disabled
Americans] have demonstrated the requisite standing to pursue Title III claims
against 7-11 related to mobility, visual, and hearing impairments and satisfied
the case-in-controversy requirements of Article III with regard to these
disabilities . . . [but] the Court must reject plaintiffs’ claim that this
limited standing confers carte blanch standing to pursue the Title III claims
that every disabled person may have against 7-11.”
[215]
·
An extremely broad release of each class member’s
disability access claims, both state and federal, without noting or accounting
for the wide variance among state accessibility laws, many of which grant
substantive accessibility requirements and remedial rights that go beyond those
enacted in Title III of the
ADA
.
Some states grant plaintiffs the right to claim monetary damages as well as
retrofitting or other injunctive relief,
[216]
and some state laws grant presumptive damages of a specific amount for each
instance of disability discrimination.
[217]
In addition, in states such as
Arizona
,
the attorney general may become involved in accessibility cases, thereby
enabling the court “to vindicate the public interest” and additionally “assess
a civil penalty against the covered person or entity.”
[218]
Since the 7-Eleven settlement language proposed barring action by “all entities
acting or purporting to act in behalf” of people with disabilities, it would conceivably curtail a state’s sovereign
right to enforce its own accessibility laws.
·
Relief that fails to address entire segments of
the purported class. In the May Company case, the proposed settlement failed to
address any accessible concerns commonly held by people with visual
disabilities, such as the provision of Braille signage or policies guaranteeing
the admittance of assistance animals in May Company’s public accommodations.
[219]
The BFS proposed consent decree essentially covered all people with
disabilities yet failed to give relief typically of concern to people with visual
disabilities (e.g., shopping assistance, talking ATMs, Braille signage, a
service animal policy) or people with hearing disabilities (e.g., the
settlement requires hearing-aid-compatible receivers but does not refer to
amplified headsets, TTY availability, or training employees on how to
effectively communicate with deaf and hard-of-hearing customers).
[220]
·
Avoidance of ADAAG requirements applicable to
new construction and alterations. The proposed settlements uniformly lowered
the minimum accessibility standards adopted in
ADA
implementing regulations that have been carefully tailored to balance the
ADA
’s
overall goal of achieving accessibility for people with disabilities through
integration and a public accommodation’s need for flexibility and administrative
and cost concerns.
[221]
The ADAAG requirements are not mere technical minutiae. They are the factors
that enable customers with disabilities to independently enter, maneuver
through, and use the services offered by public accommodations, or not. The
failure to meet an ADAAG minimum standard can result in a person with a
mobility impairment being unable to use a so-called “accessible” restroom or
make it more dangerous for a blind person using a cane to negotiate protruding
objects in an aisle. While there may be leeway in a settlement for attaining
the readily achievable barrier-removal standard of existing construction and,
arguably, some minimal level of tolerance for post-1993 newly constructed
facilities that would otherwise require complete reconstruction, there is no
justification for accepting deviations from the ADAAG for post-settlement
construction.
[222]
In the proposed 7-Eleven settlement, 58 of 63 listed architectural elements
fell below ADAAG minimum standards, and 41 elements on the list allowed a more
lenient standard even for post-1993 newly constructed stores.
[223]
The “tolerances” in the proposed Amoco settlement lowered the ADAAG standard
for 4 of 61 listed architectural elements.
[224]
These concessions in minimum standards appear to have been made for no other
apparent reason than the convenience of the defendant.
·
Plaintiff class releases claims for an extended
time. Both the Amoco and BFS settlements proposed a release that would be in
effect for seven years,
[225]
arguably foreclosing even the future claims of future class members
encountering inaccessibility at the defendants’ post-settlement newly
constructed facilities.
·
Wholly inadequate notice provisions for a
national class action. For the May Company settlement, the parties stipulated “that
notice need not be given of the certification of the class [for purposes of
settlement],” even though the proposed settlement included over 8.6 million
people.
[226]
Notice of the settlement itself was published in only two magazines, one a
publication targeted specifically to veterans with spinal cord injuries and the
other a magazine for wheelchair users that had an annual subscription base of
24,000. Notice was also put on a Web site specializing in travel news for people
with disabilities.
[227]
As objectors’ counsel stated, they “learned about this potential nationwide
class action by happenstance.”
[228]
The huge class proposed in the BFS encompassed all people with disabilities “who
have or will claim that they has been denied access at one or more of
Defendants’ facilities in violation of the ADA or state law,” and the class
members did not receive individual notice of the consent decree or an
opportunity to opt out.
[229]
·
No or inadequate monitoring of settlement
compliance. The May Company settlement contained no provisions for monitoring
settlement implementation by class representatives or by a neutral third party;
May store managers were left to monitor compliance with the
ADA
.
[230]
As a very general rule, any settlement that involves significant injunctive
relief yet leaves the attainment of that relief entirely in the hands of the
defendant is potentially suspect.
[231]
In the 7-Eleven settlement, the monitoring provisions required the defendant to
survey all of its stores within a specified time frame, after which fewer than
6 percent of the stores could be inspected, presumably at the defendant’s
expense. The survey instrument was not made available until after the time for
filing objections was past; additional inspections could not be undertaken even
if the class paid for them; and there was no provision for what would happen if
any inspection showed that stores had failed to make required accessibility
changes.
[232]
The objections outlined above did not always achieve their
goals in terms of preventing class certification or disapproval of the proposed
consent decree, though this was in fact achieved in the May Company and
7-Eleven cases.
[233]
In other cases, the objections led to negotiations in which the parties agreed
to further refine the consent decree, add additional relief for subclasses, and
narrow the scope of the release language.
[234]
In some cases, the parties agreed to narrow the class definition to exclude a
specified subclass because of an intervention that was brought on its behalf.
[235]
The uniform concern among the attorneys interviewed was the
fear that once a large national class action with all or some of the above
shortcomings has been approved, it will stand as a dangerous precedent. These
flawed consent decrees profess to regulate the rights of millions of Americans
with disabilities, and the approval of one makes it that much easier for the
next court to approve a consent decree with an expansive class definition,
overly wide release, and watered-down ADAAG requirements. This fear is what has
prompted NDRN to organize a “cadre of lawyers to evaluate and, if necessary,
file objections to these proposed settlements.”
[236]
Other private attorneys, primarily solo or small practitioners, have given
extensive labor and time to crafting objections to the settlement and/or
working to have their client group excluded from the overly broad class
definition.
In many ways, NDRN attorneys are ideally placed to act as
objectors to inappropriate Title III class action settlements. Each P&A
agency has expertise in both federal accessibility laws and its own state’s
disability discrimination laws, as well as a mandate to protect the rights of
all people with disabilities. Unfortunately, some defendants in national class
action settlements have recently adopted the tactic of raising objections to a P&A
agency’s standing to intervene and raise objections to settlement.
[237]
In response, NDRN attorneys have been forced to find several people with
disabilities who live in the state where the objections are raised and whom the
P&A can identify as actual objectors to the settlement. This need to find,
interview, take depositions, and prepare individuals with disabilities who
object to settlement, just in case the P&A’s standing to object is
questioned in court places even more time pressure on NDRN attorneys who are
trying to guard against proposed settlements.
One of the above cases has, in fact, translated into an
unfortunate precedent. The court ultimately approved the Amoco settlement,
[238]
but even though the settlement that was approved was a substantial improvement
over the consent decree that was originally proposed, P&A objectors did not
prevail on the issue of ADAAG tolerances. This loss spilled over in the BFS
settlement decision, where the court also allowed unjustified ADAAG tolerances.
[239]
Currently, overly broad national settlements continue to arise, and objections
continue to be made. In one case, the objectors managed to influence the
defense attorneys, who cooperated with the objectors to craft a much more
appropriate settlement.
[240]
In other instances, defense attorneys have fought to maintain inappropriately
wide class definitions, all the while resubmitting a moving-target consent
decree to the court.
[241]
C.
ADA
Class Action Education and Alternatives
Two attorneys who have worked a number of years in
the area of Title III litigation—Lainey Feingold and Amy Robertson—developed a
series of suggestions aimed at educating the plaintiff bar.
[242]
Their best practices suggestions can help those who bring Title III class
action litigation draft consent decrees that achieve relief for the entire
class and appropriately release claims in return. Their article highlights the
dangers that class counsel for a group of people with disabilities must know
about and avoid to ethically and professionally carry out their duties.
[243]
Their suggestions encompass the need to—
·
ensure adequate class representatives and
experienced class attorneys;
·
include effective monitoring and dispute
settlement mechanisms to ensure postsettlement compliance by the defendant;
·
carefully tailor the class definition, class
claims, and releases clauses; and
·
require notice that is posted widely and
appropriately in order to gather the valid concerns of all class members,
especially if the proposed class definition encompasses people with a wide
range of disabilities and resulting different forums for receiving information.
Judicial education concerning the need to closely oversee
national and regional Title III class actions could help prevent the passage of
problematic settlements. Brian East, an attorney with the Texas P&A,
suggested that existing statutory and regulatory tools governing class action
settlements are sufficient for preventing entry into problematic settlements.
However, the courts are not necessarily aware of the problems that can occur with
Title III class action settlements; fail to pay sufficient attention to the
settlements the attorneys involved bring forward; and, consequently, fail to
use existing tools to prevent potential collusion or abuse.
[244]
Another stakeholder group that could benefit from further
education on class settlement issues is disability advocates and the broader
disability community. Some disability attorneys and advocates hold the opinion
that any class settlement that does not address the needs of all people with disabilities and all potential barriers is problematic.
[245]
However, it is not always possible or strategically advantageous to have all
disabilities represented among the named class representatives, and not all
attorneys have expertise in the accommodation needs of people with different
disabilities. The achievement of a timely, tailored settlement that addresses
only the needs of a class of people with specific kinds of disabilities will
not bind the rights of people with other disabilities, and will leave the door
open for litigation and effective settlement concerning the accommodation needs
of other groups.
One potential alternative to class action litigation is
championed by Lainey Feingold, who has developed a unique approach to the
resolution of Title III accessibility issues and implementing
ADA
compliance when dealing with corporate defendants that operate multiple public
accommodations. Feingold’s “structured negotiation” approach does not rely on
the initiation of litigation. Rather it begins with a privileged settlement
communication sent to the corporate entity and ideally concludes with a
settlement agreement in which plaintiff attorneys and their experts work
directly with the corporate entity.
[246]
Feingold has worked closely with organizations of the blind
and other members of the blind community for some years, and her letter clearly
details the accessibility problems that ATMs and point-of-sale (POS) terminals
present to people with visual disabilities. The letter is similar to a typical
demand letter in that it describes her own and co-counsel’s legal credentials,
the federal and state laws that underlie the right to ATMs and POS machines
that can be independently used by people with visual disabilities, and remedies
required under the law. Feingold’s letter deviates from a demand letter by
offering to work with the corporate counsel for “a nonlitigated resolution
[that] would require a written, enforceable agreement with three components: injunctive relief for purchase and installation
of accessible [equipment] and related policy and training issues; and related
damages and attorney fees as allowed by statute.”
[247]
The letter sets a deadline for corporate counsel to respond concerning their
willingness to work on the structured negotiation process.
Feingold has used this approach for more than 10 years and has
a strong record of success in achieving corporate cooperation. By using this
structured negotiations approach she has achieved 15 legally binding settlement
agreements on the incorporation of accessible technology for people with visual
disabilities. General counsel for some of the financial institutions that have
engaged in structured negotiation invariably contrast the approach favorably
with the initiation of litigation, and all those interviewed said they
developed a positive working relationship with Feingold, even though receipt of
the initial letter was “shocking.”
[248]
There are positive and negative aspects to the use of
structured negotiations. There have been criticisms of the amount of time it
can take to implement a structured negotiations settlement agreement; the
general counsel interviewed mentioned amounts of time ranging from two to five
years. On the other hand, hard-fought litigation can swallow inordinate amounts
of time even before a settlement or judgment is achieved. Aspects of the
structured negotiation settlement agreement are often kept confidential by
agreement, so the approach does not necessarily incentivize accessibility
compliance among others in the industry in the same way as the initiation of a
public lawsuit. Feingold includes a list of past participants in structured
negotiations when she sends out the initial communication, but while
corporations and counsel who have already dealt with her may be willing to
speak to others to whom she has sent a letter, they may not freely bring up the
issues in their interactions with others in their industry. Both litigation and
the structured negotiations approach can effect lasting corporate change in an
organization once judgment or settlement is reached, as long as ongoing
training and education are included as a component of settlement. While the
resources that a defendant is forced to expend on litigation can arguably leave
a deeper impression concerning the need for change, litigation also frequently
fosters lingering resentment that can undermine the transformation of corporate
culture.
Feingold and her co-counsel, Linda Dardarian, have achieved
considerable success with the structured negotiation approach, having entered
22 binding settlement agreements to date with some of the biggest companies in
the country, including American Express, Bank of America, Wal-Mart, and
7-Eleven. Feingold also has an established working relationship with a
clientele of people with visual disabilities, the backing of her co-counsel’s
firm (which is recognized for litigating discrimination class actions), and
negotiation skills that are widely recognized by her peers. These factors
combine to make the transferability of her approach difficult to predict.
D. Other ADA Class Action Cases
Class action litigation has been used successfully in
enforcing other aspects of the
ADA
and has achieved all the goals of class actions recognized in the introduction.
Class actions have raised the profile of the
ADA
and its nondiscrimination and accessibility requirements. People with
disabilities, who frequently are in the lowest economic echelons, are able to
participate in protecting their rights, which they would be unable to do if
they had to bear the financial brunt of bringing a lawsuit. Also, class action
victories have achieved systemic changes that multiple individual lawsuits
could not have wrought.
Title I litigation has been rare, but two high-profile cases
have emerged in the past few years. In Glover/Albrecht
v. Potter,
[249]
a class action was brought against the United States Postal Service (USPS) on
behalf of “people employed by the USPS throughout the
United
States
between January 1, 1992, and the
present while in permanent rehabilitation positions who were allegedly denied
promotional and/or advancement opportunities allegedly due to discrimination on
the basis of disability.” There have been more than 25,000 rehabilitation
employees since 1992, making Glover the largest disability discrimination employment class action ever settled.
Preliminary approval of the settlement was given December 3, 2003, by Denver
EEOC Administrative Judge Dickie Montamayer. Settlement includes injunctive
relief to ensure equal promotion opportunities and the establishment of a streamlined
claims process through which class members may seek up to $25,000 in back pay
and emotional distress damages.
In Bates v. United
Parcel Service,
[250]
a pattern-or-practice class action lawsuit was initiated against UPS,
challenging its policy of applying the Department of Transportation hearing
standard to the entire UPS fleet, including lighter vehicles that were not
regulated by DOT. At trial, the court rejected UPS’s business necessity and
undue burden defenses, and found in favor of the drivers. Many of the drivers’
additional policy accommodation issues—such as UPS’s failure to provide visual
fire alarms in the workplace—had been settled before trial, and ultimately the
class members received both injunctive relief and monetary damages.
Title II class action litigation includes a number of
important Olmstead decisions that
have resulted in settlements that have required state and local entities to
take concrete actions concerning the release of institutionalized people into
the community. One example is Travis D.
v. Eastmont Human Services Center, which was initially filed in 1996 on
behalf of a class of individuals with mental retardation and other
developmental disabilities. Though the action was initiated before the Supreme
Court’s 1999 Olmstead decision, the
latter decision undoubtedly helped motivate settlement in Travis D., which finally took place in 2004.
[251]
The class ultimately included 200 people who had been institutionalized between
August 1996 and February 2004. Approximately 90 class members continued to be
institutionalized at the time of settlement. The settlement provided for
community services to be developed for 45 residents of one existing
institution, closure of two of the institution’s units, a legislative proposal
to eliminate a statutory provision that made institutional commitment easy, and
various additional measures to facilitate the discharge of additional
institutional residents.
[252]
Other successful Title II settlements have occurred in areas as varied as
public transportation
[253]
to high school and high-stakes exit exams.
[254]
Despite the problems noted with Title III class
actions, good tailored settlements have been achieved by experienced class
counsel, resulting in benefits to the overall class. In Farrar-Kuhn and Lucas, et al. v. Conoco, Inc.,
[255]
the class entered a settlement concerning the corporate defendant’s operation
of public accommodations in six states. The settlement agreement
·
held a firm line on systemic reductions or ADAAG
tolerances in new construction, particularly postsettlement new construction;
·
established a pilot program by which the parties
would survey the first six sites together with an independent expert to work
out disagreements onsite whenever possible before proceeding with surveying the
remainder of defendant’s stores;
·
released only the class’s Title III claims and
the individual plaintiffs’
Colorado
claims in exchange for approximately $2,000 in individual damages.
E. Recommendations for Further
Research and Conclusion
Like the private right of action, the class action is a tool
that is available and used for the enforcement of Title III’s accessibility
requirements. Also like the private right of action, the class action as it has
been and is currently used in Title III litigation is coming under criticism
because of the potential for abuse. With class action settlements, the
potential for abuse comes about because the plaintiff class can be defined to
include members of the disability community whose right to bring an individual
lawsuit would be traded for inadequate or no accessibility action on the part
of the defendant. Most of those warning of the abuse potential in class
actions, however, are plaintiff attorneys who recognize the ongoing need for
the tool but want the risk for collusive abuse between plaintiff and defense
attorneys recognized and specifically addressed. In other words, there is no
call for a general curtailment in the bringing of class actions, only a call
for measures that would strengthen the broader disability community’s ability
to receive notice of, object to, and otherwise have a positive impact on the
shaping of class action settlements.
Given the reality that class action litigation has
achieved excellent results and implementation in other areas of the
ADA
,
what can be done to preserve and further support the use of this powerful and
efficient litigation tool in future cases concerning accessibility in public
accommodations? The following are recommendations for preserving the use of the
class action tool in Title III litigation while reducing the potential for
abuse and entry into problematic class action settlements:
·
Continue monitoring for abuse, but also explore
any possibility for strengthening the current system by creating at least the
possibility of recovering attorney fees for raising reasonable objections to
national and regional class action settlements.
·
Encourage education of and intervention by DOJ
and by attorneys general in states where citizens with disabilities would be
adversely affected by these settlements. This option is especially reasonable
to explore given the new CAFA provisions requiring notice to “appropriate”
state officials with the settlement of federal class actions.
·
Consider ways to link the CAFA notice provisions
to state and federal officials to actual notice to cross-disability groups with
a legal component and to P&A agencies in all affected states.
·
Educate the judiciary on the need for vigilance
concerning national
ADA
class
settlements that would allow public accommodations to avoid or water down ADAAG
requirements and bind an overly broad class of people with disabilities to a
settlement that gives many of them inadequate or no relief.
·
Disseminate information about the structured
negotiation approach and its possibilities for avoiding the inefficiencies of
initiating and sustaining a litigious approach to enforcing Title III against
corporate defendants that operate multiple public accommodations.
PART 3. Strategies for Improving
Public Awareness
Introduction
The public awareness component of the study was developed in
response to a critical need to promote implementation of the
ADA
by increasing public awareness about the law and how to implement it. The
prevalence of negative ADA media stories—along with misperceptions about people
with disabilities that pervade print, television, Internet, and other
media—underscored the importance of asserting a new message that portrays the
ADA
and people with disabilities in a different, more positive light.
The public awareness piece of this project involved
a comprehensive research and planning process that included the following:
·
A review of the state of the art in public
information campaigns.
·
An assessment of past
ADA
public information campaigns.
·
A “situation analysis”—a research-based
assessment of the current circumstances that relate to public awareness and
knowledge of the
ADA
.
A detailed discussion of the research and planning process and
of its findings is included in Appendix E.
The fourth major piece of the public awareness component of
this project was the development of a prototype information campaign to promote
awareness and implementation of the
ADA
,
employing the most up-to-date thinking on how to design public relations
campaigns that really work. In this context, a “prototype” is a model or a
template that, with some fine-tuning and external funding, is ready for
implementation as a full-scale public information campaign. The development of
the prototype used state-of-the-art strategic planning tools, along with
research on stakeholders, to create a model campaign and assemble a toolbox of
useful communication products. The prototype can also be adapted to other
ADA
implementation goals and audiences, meaning that the research and strategic
planning process that was used to develop the prototype can be adapted to other
target audiences and other messages.
The prototype public information campaign—called “Easy Access”—targets
small business owners throughout the United States that provide public
accommodations. The primary messages of the Easy Access campaign are that
complying voluntarily with the ADA is good business and is easier than people
think, while reminding the small business owner that “it’s the law” to comply
with the ADA. The Easy Access prototype campaign includes messages targeted to
the businesses themselves as well as to other audiences. One such audience
includes people with disabilities and their advocates, an audience that is
critical to achieving the goal of improving access to businesses that serve the
public. Although some of the messages contained in the prototype have been
tried before, the prototype offers fresh ideas about how to plan their use
strategically and implement a results-oriented campaign.
The backbone of the Easy Access prototype campaign is the
strategic plan that leads to the development of communication products and
distribution tactics that maximize impact with minimum resources. Although the
communication products are the tangible components of the Easy Access prototype
campaign, the strategic plan is the invisible logic behind decisions about
which communication products to develop and how to distribute them. The plan
identifies the problem that the campaign addresses, summarizes research into
target audiences through a situation analysis, sets campaign goals, and defines
audiences. The last step is to design communication products, specify tactics
for their distribution, and specify how the impact of each communication
product will be evaluated.
Numerous communication products were developed, including news
releases, public service announcements, brochures, and Web-based digital
products. For each communication product, a “rationale and implementation
strategy” was created that provides the reasoning behind that particular
product, including objectives, target primary and secondary audiences,
communication strategy for the product, proposed distribution strategies, and a
plan for evaluating its impact.
I. Rationale and Implementation
Strategy for the Easy Access Prototype
The strategic plan for the Easy Access prototype
information campaign can be summarized as a rationale and implementation
strategy for the overall campaign. The strategy addresses the following aspects
of a comprehensive strategic planning process:
·
Problem statement
·
Situation analysis
·
Goals
·
Audiences
·
Communication and distribution strategies
·
Impact evaluation
Each of these aspects is described in more detail in the next
section. Following the summary of the strategic plan for the Easy Access
prototype is a description of the model communication products that were
developed for the prototype information campaign, along with seven distribution
strategies for getting the Easy Access message to the right primary and
secondary audiences.
Problem Statement
Many small businesses—businesses selling goods/services to the
public that meet the small business size standards of the U.S. Small Business
Administration (SBA)—are not in compliance with the public accommodations
mandate of the Americans with Disabilities Act (ADA), despite the legal requirement
that all businesses, large and small, must comply.
Situation Analysis
Americans with disabilities and their advocates rightfully
feel that 16 years after the
ADA
went into effect, small businesses should be in compliance with its public
accommodations requirements. In the stakeholder dialogues conducted for this
report, high—and sometimes unrealistic—expectations for what can be
accomplished through a public information campaign were in evidence. The
analysis of the external situation, which included focus groups with small
business owners, indicated basic awareness of the
ADA
but limited knowledge on the part of small businesses as to whether the law
applies to them and exactly how to comply with it. Further research showed that
a wealth of information is available to help small businesses with compliance.
What’s missing is the motivation among small business owners to become more
knowledgeable about how to comply. Gaining knowledge is the first step toward
desired behavior; that is, compliance.
To that end, the Easy Access prototype focuses on education as
one of the “Three E’s” of bringing about social change (education, engineering,
and enforcement). For significant changes in behavior to occur, education must
be combined with engineering and enforcement strategies. Part 1 of this report
includes recommendations for engineering (for example, expedited business
licenses for businesses that demonstrate compliance with the
ADA
)
and enforcement strategies that, together with education efforts such as this
prototype information campaign, can lead to more effective
ADA
implementation.
The following are key results of the situation
analysis:
·
Small businesses, as defined by the SBA, were
selected as the primary target of the public information campaign, primarily
because research showed the likely benefit to them of an education effort
centered on a public information campaign (see Appendix E). The primary goal of
the Easy Access campaign was to encourage small business owners to comply with
ADA
access requirements.
·
Extensive research was conducted through
stakeholder dialogues and focus groups with small business owners to identify
barriers to
ADA
compliance and to assess what small
business owners know about
ADA
compliance and what would motivate them to comply.
·
Most small business owners are aware of the
ADA
but are largely ignorant of specifics or how to access step-by-step assistance
in compliance. In addition, many fear litigation, making the topic of
ADA
compliance something they like to avoid.
·
Many small business owners are not motivated to
comply because they think the ADA does not apply to them, do not realize how
much potential new business would become available through compliance, and do
not recognize the marketing opportunity to project a positive image of their
businesses through compliance.
·
Many small businesses have not engaged in
compliance behaviors, and past behavioral change efforts (e.g., in
San
Francisco
and
Chicago
)
have not been successful.
·
Based on the research, the Easy Access prototype
was designed to use short, motivational messages through multiple communication
channels to encourage small business owners to access more detailed compliance
information; to provide easy access to more detailed, existing information; and
to use secondary audiences (landlords, business associations, architects, people
with disabilities and their advocates) as message couriers to add credibility
and persuasive power to the campaign.
·
Anticipating budget constraints when the
prototype is actually implemented, principles of “guerilla marketing” and “laser
targeting” of messages were used throughout the research and planning process.
Guerilla marketing uses unconventional marketing tools and strategies to
maximize results using a minimum of resources. This approach is ideal for
activists who seek to bring about positive social change with limited budgets.
Guerilla marketing means doing more with less by applying just the right kind
of pressure in just the right way to bring about desired change. Laser
targeting means focusing highly resonant messages to narrowly defined target
audiences with similar characteristics, much like a laser beam. This approach
reflects state-of-the-art thinking that rejects “flashlight campaigns” that
seek to illuminate the so-called general public across a wide range of issues.
The net effect of flashlight campaigns is no effect, much like shining a flashlight at the moon.
·
Research suggests a role for branding in the
Easy Access prototype campaign. Branding is the process of linking certain perceptions,
both cognitive and emotional, about a product, organization, or idea with
easy-to-remember names and icons. For example, focus groups with small business
owners suggest they do not know how to find information they need or how to
determine which information is accurate. This finding suggests branding as a
way to label or identify current, accurate information that members of the
target audience can rely on to steer them toward compliance and greater access.
·
Digital technology has radically increased the
channels of communication available for message distribution. However,
audiences have a finite capacity to access and process information. So digital
technology is a good news/bad news innovation. The good news is that
information can be transmitted to geographically dispersed audiences at minimal
cost. The bad news is that the audience has more control over the information
it accesses and more to choose from than just the three television networks.
With digital technology, the challenge is to motivate audiences to actively
access information provided by the campaign.
·
The primary communication strategy is to
emphasize “carrots” (showing key benefits) while also mentioning the “stick” (“it’s
the law”). Key message points emphasize that
ADA
compliance is good business (increased customer base and positive image among
consumers) and that compliance is easier than most small business owners
realize. Small business owners are also reminded that compliance is a federal
law that applies to them.
·
Following guerilla marketing principles, simple,
inexpensive evaluation strategies are provided for each communication product.
When implemented, these prototype evaluation tools should be supplemented by a
comprehensive evaluation.
Goals
Based on stakeholder dialogues and focus groups with small
business owners, four major goals were established for the Easy Access public
information campaign: (1) to increase awareness among small business owners
that all businesses must comply with the ADA; (2) to increase awareness among
small business owners of the number and spending power of Americans with
disabilities; (3) to increase awareness among small business owners of the
resources available to them to make ADA compliance easy; and (4) to increase
the number of small business owners who actively seek more information that
will help them make their businesses ADA-compliant.
Audiences
The primary audience for the campaign is small business
owners. Important secondary audiences include Americans with disabilities,
small business associations, commercial landlords, and architects, as well as
the media, disability advocates, and others specified in the rationale and
implementation strategy for each communication product. Secondary audiences
play a key role in distribution of messages targeted at the primary audience.
Communication and Distribution Strategies
Communication and distribution strategies for each
communication product are spelled out in the rationale and implementation
strategy for each product. Communication strategies outline the underlying
logic of the message and how the message will help achieve the goals of the
campaign. Distribution strategies outline how the communication products will
be delivered to the target audience. Often, secondary audiences serve as couriers
for communication products, so that the message has greater impact (e.g.,
mediated communication facilitated by face-to-face communication from a member
of a secondary audience to a primary audience; for example, an individual with
a disability hands a brochure promoting Easy Access to a small business owner).
Impact Evaluation
For every communication product, a small-scale, cost-effective
impact evaluation strategy is suggested. If this prototype were to be funded as
a full-scale campaign, these small-scale evaluations could be supplemented by
an overall impact evaluation. In an impact evaluation, the public information
campaign would be implemented in five major target markets; five other markets
of comparable size would be included in the evaluation as comparison markets.
Awareness, knowledge, knowledge-seeking behaviors, opinion, and compliance
behaviors among small business owners would be measured in target and
comparison markets before and after the campaign was implemented. Data from the
target and comparison markets would be compared to evaluate the impact of the
campaign on desired outcomes.
Communication Products
The most visible, tangible aspects of a public information
campaign are the communication products themselves. The Easy Access prototype includes three different
types of communication products: short motivational messages for small business
owners, more detailed informational messages for small business owners, and
messages for secondary audiences that serve as dissemination channels and
credible information sources.
Motivational messages are designed to cut through
the advertising/information clutter in which most small business owners are
immersed. The goal of motivational messages is to encourage small business
owners (and secondary audiences) to seek out more detailed information and to
direct them to those resources. The Easy Access prototype includes five such
motivational communication products:
·
Launch
news release. The launch news release takes an event of established hard
news value and provides the first opportunity to put key message points before
the target audiences. Because the release deals with hard (or breaking) news,
newspapers and magazines are more likely to use it. The template begins with an
endorsement of the campaign by the “U.S. Association of Small Businesses.” This
endorsement would need to be replaced by actual quotes from an actual
organization; the rest of the release is ready to be used.
·
Feature
news release. This feature article highlights a small business testimonial
on the benefits of compliance.
·
Small
business brochure. This product is targeted directly to small businesses.
·
Scripts
for audio messages. Scripts for 30-second and 60-second spots are provided.
These short ads can carry only a little information and so must focus on
motivation and on providing a gateway to more detailed information, by, for
example, providing a toll-free phone number or an Internet URL.
·
Storyboards
for video messages. Scripts are provided with descriptions of video shots
for both 30- and 60-second videos that can be aired as public service
announcements (PSAs), paid ads, or downloads or links on the Web, or
distributed to bloggers and webmasters.
Informational messages provide detailed
information to the target audience, once the audience has been sufficiently
motivated to access the information. The Easy Access prototype includes three
such informational communication products:
·
Online
FAQs. The FAQ (frequently asked questions) format has become increasingly
familiar to the general public through the Internet. Many Web sites have FAQs
prominently displayed on their home page. In public information campaigns, FAQ
handouts are standard collateral materials in press kits and at meetings.
·
Fact
sheet on myths and facts about the
ADA
. A fact
sheet summarizes the most salient points in a succinct format. This
communication product uses a “myth and fact” format adapted from DOJ materials
to distill the most common misperceptions among small business owners and to
provide correct factual information.
·
Access
laminated card. This pocket-sized card includes the key campaign messages
on one side and a very brief checklist of access-related points on the other.
This would typically be used as a take-away from an ADA-centered meeting or
event.
To further the objectives of the Easy Access
campaign, secondary audience messages are designed to use these influential
stakeholders as couriers of campaign information, serving both as a means of
distribution and a form of third-party endorsement that enhances the
credibility of the information provided. The Easy Access prototype includes
four such secondary audience communication products.
·
Landlord
brochure. Landlords share access responsibility with their tenants. The
brochure seeks to raise the awareness of landlords’ own shared responsibility
for accessibility and to communicate with tenants about the key messages of the
campaign.
·
Architect
flyer. This flyer is designed to motivate architects to communicate with
their clients regarding the messages of the campaign and is accompanied by the
small business brochure, which they can share with their clients.
·
Small
business association letter and toolkit. This packet is designed to make it
easy for neighborhood business associations, Rotary Clubs, and so on to conduct
an informational session at a meeting using a variety of materials. The
seven-page packet includes a cover letter, a description of package contents,
suggestions for how to use the materials, a handout that describes basic facts
of
ADA
compliance, and a sample
meeting flyer.
·
People
with disabilities brochure. The brochure is designed to motivate people
with disabilities and their advocates to communicate with small businesses
regarding the messages of the campaign.
Distribution Strategies for Communication Products
The following are seven distribution strategies
for getting the Easy Access message to the right primary and secondary
audiences. For each distribution strategy, an example from the prototype
information campaign is provided.
·
News
media example. A news release featuring a small business would be targeted
to business editors and through PR Newswire. Once the article has been
published, a digital laser image of the article can be transferred onto a
plaque with a Good News Commendation from the Easy Access campaign that is
suitable for permanent display at the place of business. A digital version of
the article could also be stored on an Easy Access Web site in a “Small
Business Testimonials” archive that holds high-credibility messages about
ADA
compliance.
·
Bulk
distribution example. Secondary audiences will receive copies of the small
business brochures in bulk through organizations with which they affiliate, as
well as directly from the Easy Access campaign.
·
Pass-along
example. Secondary audiences—such as small business associations, community
organizations such as Rotary Clubs, architects serving small businesses, and people
with disabilities—will pass along brochures to the primary audience (small
business owners).
·
Direct
mail example. Architects will receive brochures through direct mail.
·
Search
engine advertising example. When the search terms “
ADA
”
and “small business” are used in an online search (using popular search engines
such as Google, Yahoo, and MSN), the small business brochure will be supported
as a sponsored link on the right side of the search display screen. Clicking on
the link will display a digital version of the brochure, suitable for printing
from the screen or downloading as a PDF file. Sponsored links for additional
search terms will be added as appropriate.
·
iPod
download example. Audio and video messages will be recorded and available
as podcast downloads. Using the podcast distribution format, business
associations, advocates, and others will be able to download these messages.
For example, the graphics in the small business brochure will be displayed in
the Now Playing box on iTunes while an audio version of the brochure is
playing.
·
USB thumb
drive promotional example. Promotional USB thumb drives, with the Easy
Access logo and Web address (URL) stamped on the casing, will be given away at
small business functions. The audio small business brochure might be stored as
an MP3 file labeled “LISTEN TO ME FIRST!” Clicking on this icon will launch the
MP3 application on the recipient’s computer. The PowerPoint version of the
brochure could also be stored on the thumb drive and labeled, “SEE ME FIRST!”
II. The Easy Access Prototype
Following is the set of model communication products that were
developed for the Easy Access, along with the rationale and implementation
strategy document created for each communication product that provides the
reasoning behind that particular product and a plan for implementing it. This
series of interrelated materials is intended to be used in combination to
address the goals of the Easy Access public information campaign: While each
product addresses its own objectives, the different products work to maximum
benefit when used together.
Small Business Easy Access Public Information
Campaign
LIST OF DOCUMENTS
Introduction/Overview
Short Motivational Messages:
1. Launch
News Release/Rationale and Implementation Strategy
2. Feature
News Release/Rationale and Implementation Strategy
3. Small
Business Brochure/Rationale and Implementation Strategy
4. Scripts
for Audio Messages/Rationale and Implementation Strategy
5. Storyboards
for Video Messages/Rationale and Implementation Strategy
6. Disability-Friendly
Yellow Pages Ad/Rationale and Implementation Strategy
Informational
Messages:
7. The
Americans with Disabilities Act: FAQs for Small Businesses/Rationale and
Implementation Strategy
8. Myths
and Facts about the ADA/Rationale and Implementation Strategy
9. Access
Laminated Card/Rationale and Implementation Strategy
Messages for
Secondary Audiences:
10. People
with Disabilities Brochure/Rationale and Implementation Strategy
11. Business
Association Toolkit/Rationale and Implementation Strategy
12. Landlord
Brochure/Rationale and Implementation Strategy
13. Architect
Flyer/Rationale and Implementation Strategy
An Introduction
to theEasy
Access Public Information Campaign
Prototype
A.
Introduction/Overview
PUBLIC INFORMATION CAMPAIGN STRATEGY
This overview of the strategic framework for the
prototype public information campaign summarizes the strategic thinking, data
collection, and planning that went into its development. In constructing the
prototype, a series of communication products were developed, including news
releases, public service announcements, brochures, and Web-based digital products.
For each communication product, a rationale and implementation strategy is
provided that explains the objectives for the product, a brief analysis of
research on the target audiences, and the communication/distribution strategy
for that product.
>
As a prototype, this campaign provides a model that
is ready to be implemented and that can also be adapted to other ADA implementation goals and
audiences.
Problem Statement
|
Many small businesses* are not in compliance with
the public accommodations mandate of the Americans with Disabilities Act
(ADA), despite the legal requirement that all businesses, large and small,
must comply.
|
|
* Businesses selling goods/services to the public that meet the
small business size standards of the U.S. Small Business Administration.
|
Situation Analysis
|
Americans with disabilities and their advocates
rightfully feel that 16 years after the
ADA
went into effect, small
businesses should be in compliance with its public accommodations
requirements. In the stakeholder dialogues conducted for this report,
high—and sometimes unrealistic—expectations for what can be accomplished
through a public information campaign were in evidence. The analysis of the
external situation, which included focus groups with small business owners, indicated
basic awareness of the
ADA
but limited knowledge regarding (1) whether the
ADA
applies to them and (2)
exactly how to comply. Further research showed that a wealth of information
is available to help small businesses with compliance. What’s missing is the motivation among small business owners
to become more knowledgeable about
how to comply. Gaining knowledge is the first step toward desired behavior
(compliance).
|
Goals
|
Based on stakeholder dialogues and focus groups
with small business owners, four major goals were established for the Easy
Access public information campaign:
■
To
increase awareness among small business owners that all businesses must
comply with the
ADA
.
■
To
increase awareness among small business owners of the number and spending
power of Americans with disabilities.
■
To
increase awareness among small business owners of the resources available to
them to make
ADA
compliance easy.
■
To
increase the number of small business owners who actively seek more
information that will help them make their businesses ADA-compliant.
|
Audiences
|
The primary audience for the campaign is small
business owners. Important secondary audiences include Americans with
disabilities, small business associations, commercial landlords, and
architects, as well as the media, disability advocates, and others specified
in the rationale and implementation strategy for each communication product.
Secondary audiences play a key role in distribution of messages targeted at
the primary audience.
|
Communication and Distribution
Strategies
|
Communication and distribution strategies for
each communication product are spelled out in the rationale and
implementation strategy for each product. Communication strategies outline the underlying
logic of the message itself and how the message will help achieve the goals
of the campaign. Distribution strategies outline how the communication products will be delivered to
the target audience. Often, secondary audiences serve as couriers for
communication products, so the message has a greater impact (e.g., mediated
communication facilitated by face-to-face communication from a member of a
secondary audience to a primary audience; for example, a person with a
disability hands a brochure promoting easy access to a small business owner).
|
Impact Evaluation
|
For
every communication product, a small-scale, cost-effective impact evaluation
strategy is suggested. If this prototype were to be funded as a full-scale
campaign, these small-scale evaluations could be supplemented by an overall
impact evaluation. In an impact evaluation, the public information campaign
would be implemented in five major target markets; five other markets of comparable size would be included in the
evaluation as comparison markets.
Awareness, knowledge, knowledge-seeking behaviors, opinion, and compliance
behaviors among small business owners would be measured in target and
comparison markets before and after campaign implementation. Data from the
target and comparison markets would be compared to evaluate the impact of the
campaign on the desired outcomes.
|
The campaign includes three different types of
communication products:
- Short
motivational messages
- Launch news release
- Feature news release
- Small business brochure
- Scripts for 30-second and 60-second audio messages
- Video storyboard
- Disability-friendly Yellow Pages ad
- Informational
messages
- Online FAQ
- Myths and facts
- Laminated checklist card
- Messages
for secondary audiences
- Landlord brochure
- Architect brochure
- Small business association letter and brochure
- People with disabilities brochure
The communication products developed for this
prototype campaign are designed as a series of interrelated materials intended
to be used in combination to address the campaign’s goals. While each product
addresses its own objectives, the products work to maximum benefit when used
together. Similarly, the information campaign alone is not sufficient to change
behavior. For significant changes in behavior to occur, education strategies
must be combined with engineering and enforcement strategies. This report
includes recommendations for engineering and enforcement strategies that,
together with effective education efforts such as this prototype information
campaign, can lead to more effective
ADA
implementation.
FOR
IMMEDIATE RELEASE
Contact: Mary Flacker
Public
Information Officer
ADA
Easy
Access Campaign
440
Grand Avenue, Suite 500
Oakland
,
CA
94610
510-465-7884
U.S.
Association
of Small Businesses Endorses
ADA
“Easy Access”
Campaign to Encourage Small Business Compliance
WASHINGTON
,
DC
—The U.S. Association of
Small Businesses announced its support today of an information campaign
targeted at small businesses that encourages compliance with the 1992 Americans
with Disabilities Act (ADA).
“Most small business owners
know about the
ADA
,” said John Smith, president of the U.S. Association of
Small Businesses. “But many small businesses assume the law does not apply to
them. Other small business owners simply don’t know what to do to comply.”
Regardless of size, all
businesses that provide goods and services to the public are required to make
their businesses accessible to people with disabilities. However, government
agencies have provided mechanisms for small businesses to make compliance as
painless as possible. For example, the Department of Justice operates a
toll-free ADA Information Line at 800-514-0301, providing technical assistance
to small businesses regarding
ADA
compliance.
Although small businesses are
required to remove physical barriers that keep customers with disabilities
away, the changes must be readily achievable, meaning that they must be easy to
accomplish with little difficulty or expense. Also, small businesses can phase
in compliance by removing barriers over several years. Tax credits and deductions
for
ADA
compliance reduce burdens on
small businesses.
In a series of discussions
with small business owners, researchers for Berkeley Policy Associates (BPA)
discovered that many small business owners were aware of the
ADA
but did not know precisely
how to comply. The current information campaign uses two key messages to draw
attention to the
ADA
and increase awareness of specific ways in which small
businesses can comply with the law. These key messages are that making
businesses accessible to people with disabilities is good business and that
compliance need not be very expensive or burdensome.
The information campaign will
be rolled out in 10 major markets, with 10 others used for comparison purposes.
At the end of the campaign, researchers will compare outcomes in markets that
received the campaign information with outcomes in markets where no new
information was provided.
Dr. Kay Magill of BPA, which
designed a prototype of the campaign, compared the current campaign to those
encouraging seat belt use and forest fire safety. “It’s very important for all
stakeholders to understand that voluntary compliance campaigns achieve success
in a step-by-step fashion,” said Magill, who has 25 years of experience
evaluating communication programs. “Americans took decades to use seat belts
conscientiously.”
“Like any positive social
change, you begin at the beginning,” said Magill. “In this case, the first step
is providing small business owners with helpful, detailed information about
what steps they can take now to begin complying with the
ADA
. Of course, the long-term
goal is to ensure that people with disabilities can have full access to all
small businesses.”
Based on research conducted
by Berkeley Policy Associates, many small business owners are wary of
ADA
compliance. But that
attitude changes when business owners learn of the discretionary spending power
of people with disabilities. According to the Department of Justice, Americans
with disabilities control $175 billion in discretionary income. “With that kind
of consumer spending power, providing access is simply good business,” said
Magill.
“It makes no sense for small businesses to
ignore the
ADA
,” said Smith. “People with disabilities are a huge
potential market, and compliance really is not that difficult. It is the law
but, more than that, it makes good business sense.”
For more information, go to www.ada/easyaccess.com.
[1]
###
Small Business Easy Access Public Information Campaign
1. LAUNCH NEWS RELEASE
Rationale and
Implementation Strategy
Communication
Product
|
Launch news release template: 550–600 words. The quotations
in the sample release are for illustration only; they would be replaced with
actual quotations from a spokesperson from a national association of small
businesses. The URL www.ada/easyaccess/com also is included for illustrative purposes only; it is not an actual Web
site. The rest of the news release can be used “as is.”
The launch news release takes an event of established
hard news value and provides the first opportunity to put key message points
before the target audiences. Because the release deals with hard (breaking)
news, newspapers and magazines are more likely to use it. Because the news
release deals with small businesses, the “pitch” letter from the campaign
should be directed to the current business editors of publications in the
target markets.
|
Objective
|
This product is tailored to accomplish three objectives:
■
To provide the target
audience and the media outlets that serve that audience with their first
introduction to the Easy Access campaign.
■
To motivate small business
owners to seek more information about how to comply with
ADA
, by mentioning the discretionary spending potential of
Americans with disabilities.
■
To have a credible source (e.g., the Administrator
of the U.S. Small Business Administration) point out that
ADA
compliance is mandatory and makes good business sense.
|
Situation
Analysis
|
Through
focus groups with the target population, BPA learned that—
■
Most small business owners and managers are
unclear on their specific obligations under
ADA
to
provide access to people with disabilities.
■
Many small business owners were not aware that
the
ADA
applied to them, as well
as every other small business selling goods and services to the public.
■
Many small business owners are unaware of the
discretionary spending power of Americans with disabilities.
|
Primary
Audience
|
Owners of small businesses (defined as any business that
sells goods and services to the public and meets the small business size standards
of the U.S. Small Business Administration).
|
Secondary
Audiences
|
Secondary audiences are key stakeholders who may be
unaware that small businesses are required to comply with the
ADA
, need
encouragement to bring the
ADA
to the attention of small businesses, or have
expectations about what the Easy Access campaign can accomplish. Secondary
audiences include—
■
People with disabilities
■
ADA
advocates, both individuals and groups
|
Communication
Strategy
|
■
This communication product
seeks to create an initial awareness of the Easy Access campaign.
■
The goal is to motivate
the primary target audience to seek additional information from resources on
the Web or via the telephone.
■
The strategy combines a big
carrot ($175 billion in discretionary income) and a small stick (statement
from an authority figure that
ADA
compliance is required by law).
■
Embedded in the message
are efforts to educate Americans with disabilities and their advocates about
the limits of what can be accomplished in the short run through public
information campaigns (i.e., to manage expectations).
|
Distribution
Strategy
|
■
Online Media
Distribution
News releases will be distributed to online news publications, including
newsletters for small business associations, industry associations,
disability advocacy organizations, and so on.
■
PR Newswire
News releases will also be distributed via PR Newswire and other methods to
the current business section editors of print newspapers in target markets.
■
Pass-Along
Once published in print, the newspaper clippings can be passed along to the
primary audience via face-to-face interactions.
■
E-mail
Distribution
Once published online, the article can be forwarded to other publications and
individuals via download or e-mail.
|
Impact
Evaluation
|
■
Use search engine to
locate number of sites publishing the news release and number of stories or
articles that refer to the news release on the Internet.
■
Use a clipping service or
contact newspapers in target market to determine which/how many published a
story based on the news release.
■
Contact a sample of small
business owners in the target market to determine how many have seen articles
based on the news release.
|
Small Business Easy Access Public Information
Campaign
Rationale and
Implementation Strategy
Communication
Product
|
Feature news release template:
350 words. Material highlighted in green is customized for each market. The rest of the news
release can be used “as is.”
The feature news release is a
tactic used to take relatively timeless information and give it a “news peg”
(i.e., some attribute that makes it current and newsworthy). This article
takes a human interest angle, examining how one local business owner brought
his business into compliance with
ADA
requirements. This provides
the context for communicating additional background information about
ADA
compliance for small
businesses. The news release is targeted for the business section and is
written from a business point of view.
|
Objective
|
This product is tailored to
accomplish three objectives:
■
To
localize the issue of
ADA
compliance by providing a
local community example of a small business taking steps to make his or her
business accessible.
■
To
motivate small business owners to seek more information about how to comply
with
ADA
by rewarding a local business
for
ADA
compliance with free publicity.
■
To
teach small business owners basic facts about
ADA
and small business requirements under
ADA
.
|
Situation
Analysis
|
Through focus groups with the target population,
BPA learned that—
■
Most
small business owners and managers were unclear on their specific obligations
under
ADA
to provide access to people with disabilities.
■
Compliance
projects in
San
Francisco
and
Chicago
indicated that small business owners are not
sufficiently motivated to comply or to seek information.
|
Primary
Audience
|
Owners of small businesses
(defined as any business that sells goods and services to the public and
meets the small business size standards of the U.S. Small Business
Administration).
|
Secondary
Audiences
|
Secondary audiences play a
role in identifying a target ADA-compliant business and amplifying the
article by passing it along to other businesses. Secondary audiences include—
■
Small
business associations
■
People
with disabilities
■
ADA
advocates, both individuals
and groups
|
Communication
Strategy
|
■
This
communication product seeks to encourage information-seeking behaviors of the
primary audience by localizing compliance through an example of a small
business owner complying with the
ADA
.
■
The
goal is to motivate this audience to seek additional information from
resources on the Web and elsewhere.
■
Small
business owners with recent
ADA
compliance would be
identified in each target market with the help of small business
associations.
■
A
telephone interview would be used to gather information for the local
material highlighted in green.
|
Distribution
Strategy
|
■
Local Business Editor
Localized news releases will
be distributed to the current business section editor of the newspaper in
that market.
■
News Clipping Pass-Along
People with disabilities and
advocates for the
ADA
may distribute copies of the
news clipping to other businesses in the community to ensure exposure and to “reward”
ADA-compliant businesses with publicity.
■
“Good News” Award
Once the article has been
published, a digital laser image of it will be transferred onto a plaque with
a Good News Commendation from the Easy Access campaign. This plaque will be
suitable for permanent display at the place of business.
■
Digital Archive
A digital version of the
newspaper clipping will be stored on the Easy Access Web site in a section
set aside for “Small Business Testimonials.” This section of the Web site
will serve the dual purpose of providing high-credibility message points
about
ADA
compliance, where small
business owners communicate with each other, and of providing ideas for small
business promotion through
ADA
compliance.
|
Impact
Evaluation
|
■
Contact
newspapers in target market to determine which/how many published a story
based on the news release. (A clipping service can provide this information
for a charge.)
■
Contact
a sample of small business owners in the target market to determine how many
saw articles based on the news release.
■
Contact
the featured business owner by phone 30 days after the news release is
published. Ask the owner what kind of reaction he or she has received as a
result of the article. Ask specifically about any reactions from other business
owners.
|
IT’S EASIER THAN YOU THINK
INFORMATION –
AT YOUR FINGERTIPS!
As you can see, people
with disabilities may be a large untapped market. A wealth of information about
the Americans with Disabilities Act has been tailored for small businesses like
yours.
Go to the Easy Access
Web site at: www.ada/easyaccess.com for information about—
■
Evaluating what
barriers you may need to remove.
■
Determining what
is “readily achievable.”
■
Doing new construction,
alterations, and additions.
■
Complying with
ADA
Standards for Accessible Design.
■
Other access
requirements.
Or contact an
ADA
specialist at the U.S. Department of Justice by calling 800-514-0301 (voice) or
800-514-0383 (TTY).
Access is
GOOD Business
. . . and it’s easier than
you think!
SMALL BUSINESS
AND THE AMERICANS WITH
DISABILITIES ACT (
ADA
)
People need “a way in” to your business if they are
going to become your customers. If your business is in a building that’s
difficult to enter, or if you limit some people’s ability to have access to the
full range of your products or services, you are literally turning away
customers.
That’s what happens when your business has barriers
to access by people with disabilities. As one business owner said, “You’re
leaving money on the table when people with disabilities can’t get into your
store.”
More than 50 million Americans – almost one in
five – told the U.S. Census in 2000 that they have a disability. That means
that there are millions of potential customers for businesses that provide
access to people with disabilities. Not counting older Americans, who also need
access to businesses, people with disabilities are estimated to have about $175
billion in discretionary income!
Invest in Access. With numbers like these, it’s clear that you’re making a good
investment when you make sure your business is accessible to people with
disabilities. Plus, making your business disability-friendly makes it
user-friendly to everyone.
Yes, it’s the law, and yes, it applies to you. If you
own or operate a business that serves the public, Title III of the Americans
with Disabilities Act (ADA) prohibits discrimination against people with
disabilities in all places of public accommodation and commercial facilities,
and it applies whether your business currently serves customers with
disabilities or not.
The
ADA
says you must make whatever readily
achievable modifications are needed to remove barriers and permit access to
people with disabilities. The
ADA
is more than a building code, and
it applies to more than just ramps and doors. The access required by the
ADA
is all about enabling your
customers to interact with all aspects of your business.
Small Business Easy Access Public Information
Campaign
3. SMALL BUSINESS BROCHURE
Rationale &
Implementation Strategy
Communication
Product
|
|
Objective
|
This product is tailored to
accomplish four objectives:
■
To
increase awareness among small business owners of the number and spending
power of Americans with disabilities.
■
To
increase awareness among small business owners of the resources available to
them that make
ADA
compliance easy.
■
To
increase awareness among small business owners that all businesses must
comply with the
ADA
.
■
To
increase the number of small business owners who actively seek more
information that will help them make their businesses ADA-compliant.
|
Situation
Analysis
|
Through a series of focus
groups with the target population, BPA learned that—
■
Most
small business owners and managers have a rudimentary awareness of
ADA
.
■
However,
most were unclear as to their specific obligations under
ADA
to provide access to people
with disabilities.
■
Further,
focus groups indicated that participants needed more information about how
exactly to comply; they needed how-to guidance.
■
Materials
that have already been developed by SBA and DOJ are seen as useful and
appropriate, but most business owners don’t yet know of their existence.
|
Primary
Audience
|
Owners of small businesses
(defined as any business that sells goods and services to the public and
meets the small business size standards of the U.S. Small Business
Administration).
|
Secondary
Audiences
|
Secondary audiences for this
product are identified as potential channels of distribution of brochures to
the primary audience. The secondary audiences also will learn useful facts
about the
ADA
and its application to small
businesses.
■
Small
business associations
■
Architects
serving small business clientele
■
People
with disabilities
|
Communication
Strategy
|
The brochure provides a
communication vehicle to facilitate face-to-face communication between
secondary and primary audiences. As a printed document capable of
communicating moderately dense information, the brochure can educate as well
as motivate audience members to seek more information.
The brochure can also be used
as part of an online package of materials, not only visually pleasing online,
but also easy to download and distribute in printed form.
The communication strategy
executed in this product provides rudimentary information about the
obligations of small businesses under
ADA
(500 words). The brochure
also motivates business owners to seek additional information from resources
on the Web.
|
Distribution
Strategy
|
■
Pass along
Secondary audiences such as
small business associations, community organizations such as Rotary Clubs,
architects serving small businesses, and people with disabilities will pass along
brochures to the primary audience (small business owners).
■
Bulk Distribution
Secondary audiences will
receive copies of the brochures in bulk through organizations with which they
affiliate, as well as directly from the Easy Access campaign.
■
Direct Mail
Small business owners and
managers will receive brochures through direct mail.
■
Easy Access Web
Download
A digital version of the small
business brochure will be stored as a PDF file on the Easy Access Web site,
suitable for downloading. In addition, a PowerPoint version of the brochure
can be downloaded from the Web site. These digital versions of the brochure
will have the same full graphical support as the paper brochure.
|
Distribution
Strategy
(cont’d)
|
■
Easy Access Web
Download
A digital version of the small
business brochure will be stored as a PDF file on the Easy Access Web site,
suitable for downloading. In addition, a PowerPoint version of the brochure
can be downloaded from the Web site. These digital versions of the brochure
will have the same full graphical support as the paper brochure.
■
Search Engine
Advertising
When the search terms “
ADA
” and “small business” are
used in an online search (using popular search engines such as Google, Yahoo,
or MSN), the small business brochure will be supported as a sponsored link on
the right side of the search display screen. Clicking on the link will
display a digital version of the brochure, suitable for printing from the
screen or downloading as a PDF file. Sponsored links for additional search
terms will be added as appropriate.
■
iPod Downloads
An audio version of the small
business brochure will be recorded and available as an iPod download. Using
Apple’s iTunes distribution system, small business owners will be able to
download the audio brochure to play while jogging, walking, and so forth, as
well as to listen to while driving (using an interface device to connect the
iPod to the car stereo). The graphics in the small business brochure will be
displayed in the “Now Playing” box on iTunes while the audio file is playing.
■
USB Thumb Drive
Promotionals
Promotional USB thumb drives,
with the Easy Access logo and URL stamped on the casing, will be given away
at small business functions. The audio brochure will be stored as MP3 files
labeled as “LISTEN TO ME FIRST!” Clicking on this icon will launch the MP3
application on the recipient’s computer. The PowerPoint version of the
brochure will also be stored on the thumb drive and labeled “SEE ME FIRST!”
|
Impact
Evaluation
|
The hotlink (URL) on the
brochure could be specific to the brochure. A person accessing the Web site
would first go to a Web page that simply counts the hits and click-throughs.
This would provide a
behavioral measure of the brochure’s effectiveness at motivating small
business owners and managers to seek more information.
|
4. SCRIPTS FOR AUDIO MESSAGES
ADA
Easy Access Public Information Campaign
30-second Audio Message
A. Two Shop Owners Discuss
ADA
SFX:
|
GENERIC BUSINESS SHOP DOOR
CHIME/BUZZER (03 SECONDS)
|
MS.
BRODY:
|
Good morning, Mr. Latch. Maria’s
watching my shop. Heard you remodeled.
|
MR.
LATCH:
|
Nothing major. Just a ramp to
replace that front step.
|
MS.
BRODY:
|
Must have cost a bundle.
|
MR.
LATCH:
|
No, I went to a Web site for
small businesses. It helps us comply with the Americans with Disabilities
Act. Didn’t cost much.
|
MS.
BRODY:
|
Still, it IS an expense...
|
MR.
LATCH:
|
No, it’s an investment. People
with disabilities have 175 BILLION dollars in discretionary income to spend.
|
MS.
BRODY:
|
I never see any of that!
|
MR.
LATCH:
|
Maybe they can’t get past your
door. You know, access is good business.
|
ANNCR:
|
For more information, go to www–DOT–ada–SLASH–easyaccess–DOT–com.
|
ADA
Easy Access Public Information Campaign
60-second Audio Message
B. Two Shop Owners Discuss
ADA
SFX:
|
GENERIC BUSINESS SHOP DOOR
CHIME/BUZZER (03 SECONDS)
|
MS.
BRODY:
|
Good morning, Mr. Latch. I’ve got
Maria watching the shop. Thought I’d come down and see what you’ve been up
to. Heard you were remodeling.
|
MR.
LATCH:
|
Yup. Nothing major. Just a ramp
in front to replace that step. And I rearranged some of the display tables.
|
MS.
BRODY:
|
Nice! It feels roomier. But you
must have spent a bundle.
|
MR.
LATCH:
|
Not really. I got all the ideas
off the Internet. There’s a Web site for small businesses that helps you
comply with the Americans with Disabilities Act.
|
MS.
BRODY:
|
Oh boy! Now you’re making me
nervous...
|
MR.
LATCH:
|
You shouldn’t be. The way the law
works, you can make your business more accessible in affordable steps.
|
MS.
BRODY:
|
Still, it’s an expense...
|
MR.
LATCH:
|
I think of it as an investment –
in new customers. Did you know that people with disabilities have 175 BILLION
dollars in discretionary spending?
|
MS.
BRODY:
|
I didn’t know that. How come I
never see any of that spending power in my shop?
|
MR.
LATCH:
|
Maybe they can’t get past your
door. You know, access is good business. And it’s a lot easier than you
think.
|
ANNCR:
|
Any business that sells goods and
services to the public must comply with the Americans with Disabilities Act.
For more information, go to www–DOT–ada–SLASH–easyaccess–DOT–com.
|
Small
Business Easy Access Public Information Campaign
Rationale and
Implementation Strategy
Communication
Product
|
30-second and 60-second audio
messages for radio broadcasting, Web links, and Internet downloads and
podcasts.
The audio message is the
mainstay of many not-for-profit public information campaigns. Often aired as
a free PSA (public service announcement) by radio stations and multimedia
communication vehicles, these short ads can carry little information and so
must focus on motivation and on providing a gateway to more detailed information,
often on another medium (e.g., radio announcements that provide a toll-free
phone number or an Internet URL).
These audio messages can also
be used as paid ads, which offers the sponsoring organization control over
when the messages are aired (on radio) or how they are presented as downloads
or links (on the Web).
|
Objective
|
This product is tailored to
accomplish two objectives:
■
To
motivate small business owners to seek more information about
ADA
compliance by appealing to
their desire to invest in attracting new customers.
■
To
provide access to more detailed how-to information via the Internet.
|
Situation
Analysis
|
Through focus groups with the target population,
BPA learned that—
■
Most
small business owners and managers were unclear on their specific obligations
under the
ADA
.
■
Compliance
projects in
San
Francisco
and
Chicago
indicated that small business owners are
not sufficiently motivated to comply, or to seek information.
■
Focus
groups indicated that small business owners are responsive to the notion that
compliance is an investment in attracting new customers, not a cost.
|
Primary
Audience
|
Owners of small businesses
(defined as any business that sells goods and services to the public and
meets the small business size standards of the U.S. Small Business
Administration).
|
Secondary
Audiences
|
Secondary audiences play a
role in identifying a target ADA-compliant business and amplifying the
communication product by passing it along to other businesses. These
audiences include—
■
Advertising
and public affairs staff at broadcast, cablecast, and satellite radio
stations that serve selected markets.
■
People
with disabilities.
■
ADA
advocates, both individuals
and groups.
|
Communication
Strategy
|
■
This
communication product seeks to encourage information-seeking behaviors of the
primary audience by positioning
ADA
compliance as an investment
rather than an expense.
■
The
goal is to motivate this audience to seek additional information, especially
from resources on the Web.
■
By
casting the audio message as a dialog between two shop owners, message
resistance is reduced because business owners are not being lectured to.
■
The
60-second audio message acknowledges that
ADA
compliance is a topic that
makes small business owners nervous, then reduces those concerns by
indicating how easy it is to comply with the
ADA
.
■
Both
the 30-second and 60-second audio messages would air in the same markets. The
30-second spot is more terse and underscores points that listeners learn from
the longer audio message.
■
Small
businesses will not be the only ones that hear the radio and/or podcast
messages. People with disabilities and their advocates also will hear the
messages, which communicate that efforts are underway to improve access to
small businesses for people with disabilities. This will reinforce other
efforts to bring small businesses into compliance.
■
The
general public will also hear the messages, which will serve to raise
awareness about public accommodation issues under the
ADA
and about the importance of
public access to all places of business, small or large.
|
Distribution
Strategy
|
■
Radio
The 60-second and 30-second
audio messages will be delivered to the advertising and public affairs staff
at broadcast, cablecast, and satellite radio stations that serve the target
markets; advertising or sponsorship time will be purchased for news and talk
shows with high concentrations of business listeners, such as Marketplace or Tech Nation on NPR; airtime during these and similar programs will
be requested for PSAs.
■
Easy Access Web Downloads
The 30-second and 60-second
audio messages will be available as digitally downloadable files on the Easy
Access Web site, for playback on computers, iPods, and other personal
playback devices.
■
iPod Downloads
Both the 30-second and
60-second audio messages will be available as iPod downloads. Using Apple’s
iTunes distribution system, small business owners will be able to download
the messages for playback on iTunes or iPods.
■
USB Thumb Drive Promotionals
Promotional USB thumb drives,
with the Easy Access logo and URL stamped on the casing, will be given away
at small business functions and as “freebies” at the front desk of small
business association offices. Both audio messages will be stored as an MP3
file labeled as “LISTEN TO ME FIRST.” Clicking on this icon will launch the
MP3 application on the recipient’s computer.
|
Impact
Evaluation
|
Without a survey of small
business owners in the target markets, impact evaluations are difficult to
achieve for this communication product. Several process measures are possible
that look at the necessary conditions for impact, such as successfully
distributing the message. However, measuring the process of message
dissemination is not the same as measuring the final impact of the campaign.
Regarding downloads from the
proposed campaign Web site, a simple counter on the Web site could keep a
running tally of the number of downloads occurring over designated time
frames.
Regarding over-the-air
broadcasting of the audio messages, whether as paid advertising or PSAs,
evaluators from the campaign can contact radio stations in the target markets
to determine how often the messages ran. This information can be coupled with
secondary research from the rating services to estimate how many potential
audience members were reached by the messages.
|
5. STORYBOARDS FOR VIDEO MESSAGES
ADA
Easy Access Public
Information Campaign
30-second
Video Message
Video Storyboard:
Accessible Shopping
SEQUENCE:
Series of scenes of people going by several stores. A variety of people go in
and out of the one store that is accessible, in some cases going past it and
then going back to it when they realize that it is accessible. Everyone goes
past the stores that are not clearly accessible. Some sample photos are
provided. The shots and production elements line up as follows:
AUDIO
|
DESCRIPTION OF VIDEO
|
|
DIAGRAM/PHOTO
|
|
|
|
|
Music: Upbeat instrumental music
SFX: Street noise
(low volume)
Narration: None
|
Opening shot: Long shot of 3–4 storefronts, all with
attractive window displays.
|
1
|
|
Music: Upbeat instrumental music
SFX: None
Narration: “Do ALL of your customers have access to your
business?”
|
Zoom in for medium shot of store in center, show accessible entrance and
other access features.
|
2
|
|
Music: Upbeat instrumental music
SFX: Street noise
(low volume)
Narration: None
|
Zoom out for wide shot of storefronts. People move in and
out of frame, passing by the stores.
|
3
|
|
Music: Low volume
SFX: None
Narration: “You’re losing money if they don’t.”
|
People passing by take note of inaccessible entrance.
|
4
|
PHOTO
|
Music: Low volume
SFX: None
Narration: “Access is good business.”
|
A variety of people go in and out of the one store that is
accessible. For example, a person in
a wheelchair goes past store, glances at store, turns back to store,
looks at the ramp, goes up the
ramp and into the store.
|
5
|
|
Music: Low volume
SFX: None
Narration: “And the
ADA
– the
Americans with Disabilities Act – says that any business that sells goods and
services to the public must provide access to people with disabilities.”
|
Camera follows variety of people in and out of the
accessible store (parents with strollers, more people with disabilities,
etc.).
|
6
|
PHOTO
CAPTION:
Americans
with Disabilities Act
**THE
ADA
**
|
Music: Low volume
SFX: None
Narration: “Access IS good business.”
|
Close-up of storefront with accessible entrance.
|
7
|
PHOTO
|
Music: Low volume
SFX: None
Narration: “And it’s a lot easier than you think. For more
information, go to www–DOT–ada–SLASH–easyaccess–DOT–com.”
|
Closing shot.
|
8
|
Access is good
business…and easier than you think.
www.ada/easyaccess.com
|
ADA
Easy Access Public Information
Campaign
60-second Video Message
Video Storyboard:
Accessible Shopping
SEQUENCE:
Series of scenes showing people going in and out of different stores that are
accessible, in some cases passing by stores that do not appear to be
accessible, or backing up to go into a store when they first pass it by and
then realize that it is accessible. Some sample photos are provided. The shots and
production elements line up as follows:
AUDIO
|
DESCRIPTION OF VIDEO
|
|
DIAGRAM/PHOTO
|
|
|
|
|
Music: Upbeat instrumental music
SFX: Street noise
(low volume)
Narration: None
|
Opening shot: Long shot of 3–4 storefronts, all with
attractive window displays.
|
1
|
|
Music: Upbeat instrumental music
SFX: None
Narration: “Do ALL of your customers have access to your
business?”
|
Zoom in for medium shot of store in center, show accessible entrance and
other access features.
|
2
|
|
Music: Upbeat instrumental music
SFX: Street noise
(low volume)
Narration: None
|
Zoom out for wide shot of storefronts. People move in and
out of frame, passing by the stores.
|
3
|
|
Music: Upbeat instrumental music
SFX: Street noise
(low volume)
Narration: None
|
People passing by take note of accessible entrance.
|
4
|
|
Music: Low volume
SFX: None
Narration: “You’re losing money if they don’t.”
|
People passing by take note of inaccessible entrance.
|
5
|
PHOTO
|
Music: Low volume
SFX: None
Narration: “Access is good business.”
|
Person in
a wheelchair goes past store, glances at store, turns back to store,
looks at the ramp, goes up the
ramp and into the store.
|
6
|
|
Music: Low volume
SFX: None
Narration: “And the
ADA
– the
Americans with Disabilities Act – says that any business that sells goods and
services to the public must provide access to people with disabilities.”
|
Camera follows variety of people in and out of different
stores (people with disabilities, parents with strollers, etc.).
|
7
|
PHOTO
CAPTION:
Americans
with Disabilities Act
**THE
ADA
**
|
Music: Music comes up
SFX: None
Narration: None
|
Person using a cane walks out of the store slowly (path is
clear for person with visual disability).
|
8
|
|
Music: Upbeat instrumental music
SFX: None
Narration: None
|
Person
with a mobility disability goes up a ramp and into a store.
|
9
|
PHOTO
|
Music: Upbeat instrumental music
SFX: None
Narration: None
|
Person in
a wheelchair is in a store where aisles are wide enough to maneuver.
|
10
|
|
Music: Fade to low volume
SFX: None
Narration: “Access under the
ADA
? Think
of it as an investment – in new customers.”
|
Transportation to hotel.
|
11
|
|
Music: Low volume
SFX: None
Narration: None
|
Family entering hotel.
|
12
|
|
Music: Low volume
SFX: None
Narration: “Access IS good business.”
|
Close-up of storefront with accessible entrance.
|
13
|
PHOTO
|
Music: Low volume
SFX: None
Narration: “And it’s a lot easier than you think. For more
information, go to www–DOT–ada–SLASH–easyaccess–DOT–com.”
|
Closing shot.
|
14
|
Access is good
business…and easier than you think.
www.ada/easyaccess.com
|
Small
Business Easy Access Public Information Campaign
Rationale and
Implementation Strategy
Communication
Product
|
30-second and 60-second video
messages for television broadcasting, Web links, and Internet downloads and
podcasts.
Video messages are often aired
as free PSAs (public service announcements) on television stations and
multimedia communication vehicles. Video spots can also be used as paid ads,
which offers the sponsoring organization control over when the messages are
aired (on television) or how they are presented as downloads or links (on the
Web). The video messages can also be distributed to bloggers and webmasters,
particularly those in the disability community, for use as links or
downloads.
Similar to messages produced
for audio distribution, these short video messages focus on motivation and
provide a gateway to more detailed information, often on another medium
(e.g., television ads that provide a toll-free phone number or an Internet
URL). However, video messages are far more expensive than audio messages to
produce and, thus, are far less commonly used in not-for-profit public
information campaigns.
|
Objective
|
This product is tailored to
accomplish three objectives:
■
To
motivate small business owners to seek more information about
ADA
compliance by appealing to
their desire to invest in attracting new customers.
■
To
provide access to how-to information via the Internet.
■
To
have a broader reach that includes secondary audiences.
|
Situation
Analysis
|
Through focus groups and Stakeholder Dialogues,
BPA learned that—
■
Most
small business owners were unclear as to their specific obligations under
ADA
to provide access to people with
disabilities.
■
Small
business owners are not sufficiently motivated to comply, or to seek information.
■
Focus
groups indicated that small businesses respond to the idea that
ADA
compliance is an investment, not a cost.
|
Primary
Audience
|
Owners of small businesses
(defined as any business that sells goods and services to the public and
meets the small business size standards of the U.S. Small Business
Administration).
|
Secondary
Audiences
|
Secondary audiences play a
role in identifying a target ADA-compliant business and amplifying the
communication product by passing it along to other businesses. These
audiences include—
■
Advertising
and public affairs staff at broadcast, cablecast, and satellite television
stations that serve selected markets.
■
Bloggers
and webmasters who provide links and/or air paid advertisements and PSAs.
■
People
with disabilities.
■
ADA
advocates, both individuals
and groups.
|
Communication
Strategy
|
■
Showing
customers of all types, with and without visible disabilities, using a store’s
accessible entrance provides a strong visual message that “access is good
business.”
■
Another
message that is communicated visually is that “access is for everyone.”
■
Both
the 30-second message and the 60-second message would air in the same
markets.
■
This
communication product seeks to encourage information-seeking behaviors of the
primary audience by positioning
ADA
compliance as an investment
in bringing in customers, similar to an attractive window display.
■
The
goal is to motivate this audience to seek additional information, especially
from resources on the Web.
■
Small
businesses will not be the only ones the messages will reach. People with
disabilities and their advocates will also see the messages, which
communicate that efforts are under way to improve access to small businesses
for people with disabilities. This will reinforce other efforts to bring
small businesses into compliance.
■
The
general public will also see the messages, which will serve to raise
awareness about public accommodation issues under the
ADA
and the importance of public
access to all places of business, small or large.
|
Distribution
Strategy
|
■
Local Television Stations
The
video messages will be delivered to the advertising and public affairs staff
at broadcast, cable, and satellite stations that serve the target markets;
advertising or sponsorship time will be purchased for news and talk shows
with high concentrations of business viewers, such as CNN, FOX, and other
network programs on business and financial matters; airtime during these and
similar programs will be requested for PSAs.
■
Easy Access Web
Downloads
The
video messages will be available as digital downloadable files on the Easy
Access Web site for playback on computers, iPods, and other personal playback
devices.
■
iPod Downloads
The
video messages will be available as an iPod download. Using Apple’s iTunes distribution
system, small business owners will be able to download the video messages to
play on iTunes.
■
Other Digital Outlets
The
video messages will also be made available to bloggers, webmasters, and
others in the disability community as digital downloadable files.
■
USB Thumb Drive
Promotionals
Promotional
USB thumb drives, with the Easy Access logo and URL stamped on the casing,
will be given away at small business functions. The video messages will be
stored in RAM and WMV formats on the thumb drives. They will be labeled “SEE
ME FIRST!”
|
Impact
Evaluation
|
Without a survey of small
business owners in the target markets, impact evaluations are difficult to
achieve for this communication product. Several process measures are possible
that look at the necessary conditions for impact, such as successfully
distributing the message. However, measuring the message dissemination
process is not the same as measuring the campaign’s impact.
Regarding downloads from the
proposed campaign Web site, a simple counter on the Web site could keep a
running tally of the number of downloads occurring over designated time
frames. Downloads from other sites could be tallied via the click-throughs.
Regarding over-the-air
broadcasting of the messages, whether as paid advertising or PSAs, evaluators
from the campaign can contact broadcast and cable stations in the target
markets to determine how often the messages ran. This information can be
coupled with secondary research from the rating services to estimate how many
potential audience members were reached.
|
6. DISABILITY-FRIENDLY YELLOW PAGES AD
C. Advertise in the
Disability-Friendly Yellow Pages!
What Are the
Disability-Friendly Yellow Pages?
The Disability-Friendly
Yellow Pages is a service designed to help businesses access the growing market
of consumers with disabilities. It is designed as an online information
service for people with disabilities and their families, friends, or caregivers
to help people locate businesses near them that are disability-friendly or
barrier-free. The online service is searchable by keyword, type of business,
location, type of product or service, and special features.
What Is a Disability-Friendly
Business?
Before
you decide whether to advertise your business in the Disability-Friendly Yellow
Pages, consider what it means to be disability-friendly. It means that you have
made and continue to make efforts to make your business and services accessible
to individuals with disabilities.
■
Can a person
with a disability park, approach, and enter your business?
■
Once inside, can
customers with disabilities access your goods and services?
■
If public
restrooms are available, are they accessible to customers with disabilities?
■
Can you and your
customers with disabilities communicate with each other?
Why Advertise in the
Disability-Friendly Yellow Pages?
More than 50 million
Americans – almost one in five – told the U.S. Census in 2000 that they have a
disability. That means millions of potential customers for businesses that are
accessible to people with disabilities. Not counting older Americans, people
with disabilities are estimated to have about $175 billion in discretionary
income. If you want to reach this market, we can help.
How Does a Business Get
Listed?
You are encouraged to assess
whether you consider your business to be disability-friendly. (See How Disability-Friendly Is Your Business?) The
choice to advertise is up to you. The service does not certify that businesses
are barrier-free, but it does provide an opportunity for consumers to submit
ratings and write reviews of their service experience (such as the customer
rating system used by Amazon.com). To get a listing, go to www.disabilityyellow.com.
How Can My Business Become
More Disability-Friendly?
There’s a wealth of
information available about accessibility and the Americans with Disabilities
Act, tailored to businesses that provide goods and services to the public. To
view or download the brochure “Small Business and the Americans with
Disabilities Act (ADA)” or to find a variety of other easy-to-use information,
go to www.ada/easyaccess.com.
1. Can a person with a disability park, approach,
and enter your business?
- Is there a
route of travel that does not require stairs?
- Is route at
least 36” wide and free from protruding objects blocking the path?
- If ramps are
required to approach or enter your business, are they—
o
No
steeper than a 1:12 slope?
o
At
least 36” wide between railings or curbs?
o
Covered
in a nonslip material?
o
Equipped with a
landing (flat space) at the top and bottom of the ramp?
- Is adequate
and appropriate accessible parking available?
o
Are there enough
spaces (at least one space, even in small lots)?
o
Are spaces marked with a visible sign, without steep cross-slope,
and the access aisles clearly marked?
o
Are the spaces near an accessible
entrance, with an accessible path to that entrance?
- Are exterior
doors free from barriers?
o
When opened at a 90-degree angle,
do entry doors provide for a minimum 32” clear opening?
o
Is door hardware operable with a “closed
fist,” or without grasping or turning?
o
Is the threshold no more than ¼”
high (if beveled, ¾”)?
o
Can the entrance door be opened
without too much force?
2. Do customers with disabilities have access to
your goods and services?
- Are
circulation routes or aisles free from barriers? Do display racks allow
for turning space for people who use wheelchairs (60” or “T-shaped”)?
- Is at least a
portion of the sales counter no more than 36” tall?
- Is the
approach to the sales counter clear?
3. If public restrooms are available, are they
accessible to customers with disabilities?
- Are all
restrooms accessible, or is there signage to direct people to accessible
restrooms?
- Do restroom
doors provide 32” clear opening?
- Is the path
to the restrooms free of barriers?
- Are faucet
controls and soap and towel dispensers within reach?
4. Can customers with disabilities communicate
with you?
- Do you have a
TDD so customers who are deaf or hard of hearing can call you? If not, are
you familiar with using the telephone relay service?
- Do you keep
paper and pencil handy for writing things down?
- Do employees
have a helpful and positive attitude toward serving customers?
Small Business Easy Access Public Information Campaign
Rationale and
Implementation Strategy
Communication
Product
|
|
Objective
|
This product is tailored to
accomplish four objectives:
■
To
increase awareness among small business owners of the number and spending
power of Americans with disabilities.
■
To
increase awareness among small business owners of the key elements of
accessibility under the
ADA
.
■
To
increase awareness among small business owners of the resources available to
them to make
ADA
compliance easy.
■
To
motivate small business owners and operators to increase their accessibility
to customers with disabilities.
|
Situation
Analysis
|
Through a series of focus
groups with the target population, BPA learned that—
■
Most
small business owners and managers have a rudimentary awareness of
ADA
but are unclear on their specific
obligations under
ADA
to provide access to people
with disabilities.
■
The
obligation to make businesses accessible to people with disabilities is
viewed in a positive light by small business owners when seen from the
perspective of marketing to a new customer base.
|
Primary
Audience
|
Owners of small businesses
(defined as any business that sells goods and services to the public and
meets the small business size standards of the U.S. Small Business
Administration).
|
Secondary
Audiences
|
The audience of people with
disabilities is an essential target for the Yellow Pages, as they are the end
user. (Additional marketing materials would be developed to target people
with disabilities as the prime user of the online service.)
|
Communication
Strategy
|
The ad encourages businesses
to consider the value of the disability consumer market, consider how barrier-free
their businesses are, and consider reaching people with disabilities to be a
marketing effort just like reaching any other market segment. Using a
familiar marketing tool like the Yellow Pages brings the concept of
accessibility home by incorporating it into business owners’ familiar
marketing territory, rather than treating
ADA
compliance as some separate,
scary effort outside the realm of everyday experience.
|
Distribution
Strategy
|
The primary distribution
mechanism would be as a mailing insert for inclusion in commercial telephone
bills.
The ad would also be posted on
phone company Web sites, small business and industry association Web sites,
shopping sites and other sites that small business owners are likely to
frequent, as well as being included on the Easy Access campaign Web site.
|
Impact
Evaluation
|
The key measure of impact
would be the number of businesses that advertise through the Yellow Pages. An
intermediate outcome would be the number of hits on the Yellow Pages ad on
the Easy Access Web
site.
|
Small
Business Easy Access Public Information Campaign
7. THE AMERICANS WITH DISABILITIES ACT: FAQS FOR SMALL BUSINESSES
What is the
Americans with Disabilities Act?
The Americans with
Disabilities Act (ADA) was passed in 1990, signed into law by President George
H. W. Bush. The
ADA
is a civil rights law for people with disabilities;
it is intended to break down barriers to their leading the full, productive
lives that all Americans are entitled to, and to enable society to benefit from
their skills and talents.
Who are
Americans with disabilities?
According to the 2000 U.S.
Census, more than 50 million Americans reported that they had disabilities.
That translates to almost one in five people in this country. In addition, AARP
says that 4 million Americans turn 50 each year and become more likely to
experience age-related changes in their hearing, vision, mobility, and overall
physical condition that they may not define as disabilities. That’s a lot of
people who shop, work, and live in our communities who might face barriers that
could limit their access. Not counting older Americans, people with
disabilities are estimated to have about $175 billion in discretionary income,
according to the U.S. Department of Labor.
What does the
ADA
cover?
The
ADA
has different sections (titles) that prohibit
discrimination against people with disabilities in several specific areas,
including public accommodations, public services, employment, transportation,
and telecommunications.
I own a small
business that’s been around since around 1980. Does the
ADA
apply to me?
Yes, if you own or operate a
business that serves the public. Title III of the Americans with Disabilities
Act (ADA) prohibits discrimination against people with disabilities in all
places of public accommodation and commercial facilities, and it applies
whether your business currently serves customers with disabilities or not. The
ADA
applies to more than just ramps and doors; it’s
about enabling your customers to interact with all aspects of your business.
What does “public
accommodation” mean?
Under the
ADA
, “public accommodations” are facilities and
establishments that serve the public. A wide range of business are considered
to be public accommodations, including restaurants, hotels and other places of
lodging, medical offices, stores, and places for exercise, recreation, or
entertainment.
Will I have
to spend a lot of money to do this?
No, the law only requires
businesses to do what is “readily achievable.” This means you need only do what
is “easily accomplishable and able to be carried out without much difficulty or
expense.” The law allows businesses to determine on a case-by-case basis what
steps they will take to comply, based on their particular circumstances and
available resources. This might include things like ramping a few steps or
installing grab bars where only routine reinforcement of the wall is required.
Where adjustments are not readily achievable, you can use alternatives such as
helping a customer reach articles from inaccessible shelves, home delivery of
groceries, or coming to the door to receive or return dry cleaning. Similarly,
you can read information to your customers instead of Brailling menus or price
tags, and you can communicate with your customers using a pen and notepad
instead of hiring a sign language interpreter.
Are there any
tax breaks for money I spend to make my business accessible?
A tax credit under Section 44
of the Internal Revenue Code is available to eligible small businesses; it
covers a variety of ADA-related expenditures, including removal of
architectural barriers and making alterations to comply with the applicable
accessibility standards. (The credit cannot be used for new construction, only
modifications of existing facilities.) A tax deduction is available under
Section 190 of the Internal Revenue Code for the removal of architectural or
transportation barriers to comply with applicable accessibility standards.
Can I get
fined or sued if my business does not comply?
There is no current system for
fining businesses that do not comply with the law. However, you could be sued
if you discriminate against a person with a disability by failing to make your
business accessible, and enforcement actions by the U.S. Department of Justice
can involve civil penalties.
Where can I
find more information?
For more information about how
businesses can comply with the
ADA
and reach this nearly untapped market of people with
disabilities, visit the Easy Access Web site at: www.ada/easyaccess.com. Or call the U.S. Department of Justice’s toll-free
ADA Information Line: 800-514-0301 (voice) or 800-514-0383 (TTY).
Small Business Easy Access Public Information
Campaign
Rationale and
Implementation Strategy
Communication
Product
|
Two-page fact
sheet on the
ADA
, organized in
question-and-answer format.
The FAQ
(Frequently Asked Questions) format has become increasingly familiar to the
general public through the Internet. Many Web sites have FAQs prominently
displayed on their home page. In public information campaigns, FAQ handouts
are standard collateral materials in press kits, meetings, and so on.
|
Objective
|
This product is
tailored to accomplish three objectives:
■
To
provide small business owners with basic facts about
ADA
as it applies to
small businesses.
■
To
provide small business owners with basic facts about the size of the
population of people with disabilities who cannot do business with
inaccessible businesses.
■
To
provide small business owners with access to a wide range of more detailed
material for the Easy Access campaign Web site.
|
Situation
Analysis
|
Through a series
of focus groups with the target population, BPA learned that—
■
Most
small business owners and managers have a rudimentary awareness of
ADA
.
■
However,
most are unclear as to their specific obligations under
ADA
to provide
access to people with disabilities.
■
Further,
focus groups indicated that participants need more information about how
exactly to comply; they need how-to guidance.
■
Materials
that have already been developed by SBA and DOJ are seen as useful and
appropriate, but most business owners don’t yet know of their existence.
|
Primary
Audience
|
Owners of small
businesses (defined as any business that sells goods and services to the
public and meets the small business size standards of the U.S. Small Business
Administration).
|
Secondary
Audiences
|
Secondary
audiences include—
■
Small
business associations
■
People
with disabilities
■
Individuals
and organizations that advocate on behalf of people with disabilities
|
Communication
Strategy
|
■
This
communication product seeks to motivate small business owners to seek more
detailed information on
ADA
compliance.
■
The
strategy is to point out that compliance is the law and to address barriers
to adoption of the desired behavior (making small businesses more
accessible).
■
This
communication product seeks to begin the process to persuade small business
owners that compliance is not expensive and that access will enable them to
attract more customers.
|
Distribution
Strategy
|
■
Bulk Distribution
Individuals and
organizations that wish to use the fact sheet as collateral material at
public presentations and as take-away materials in the offices of small
business associations, chambers of commerce, and so on will order it in bulk
from the Easy Access Web site.
■
Direct Mail
Small business
owners will receive single copies of the fact sheet through direct mail.
■
Easy Access Web Downloads
“FAQs for Small
Businesses” can be downloaded as a PDF file from the Easy Access Web site by
small business owners, small business associations, people with disabilities,
and
ADA
advocacy groups.
■
PowerPoint Version
A PowerPoint
version of the “FAQs for Small Businesses” fact sheet will be created from
the existing paper version. The PowerPoint file can be downloaded from the
Easy Access Web site.
|
Distribution
Strategy
(cont’d)
|
■
Collateral Material: Public Meetings
The “FAQs for
Small Businesses” fact sheet is an indispensable component of the collateral
materials distributed to audiences whenever
ADA
is discussed in
a public forum (e.g., meetings of small business associations).
■
Collateral Material: Media
“FAQs for Small Businesses” is provided to
members of the media as additional collateral material whenever other
communication products are distributed to the media.
■
Search Engine Advertising
When the search
terms “
ADA
” and “small
businesses” are used in an online search (using popular search engines such
as Google, Yahoo, or MSN), the “FAQs for Small Businesses” fact sheet will be
supported as a sponsored link on the right side of the search display screen.
Clicking on the link will display a digital version of “FAQs for Small
Businesses,” suitable for printing or downloading as a PDF file. Sponsored
links for additional search terms will be added as appropriate.
■
USB
Thumb Drive
Promotionals
Promotional USB
thumb drives, with the Easy Access logo and URL stamped on the casing, will be given away at small business
functions. A PowerPoint version of the “FAQs for Small Businesses” fact sheet
may be stored on the thumb drive and labeled “SEE ME FIRST!”
|
Impact
Evaluation
|
Whenever an
evaluation is done of the Easy Access campaign, this would be one of the
communication products evaluated. For example, if a small business
association organizes a meeting of business owners to discuss
ADA
, the fact sheet
would be one of the products rated for usefulness/clarity by participants.
|
8. “MYTHS AND FACTS” ABOUT THE
ADA
Myths and Facts About the
Americans with Disabilities Act
Excerpt
from “Myths and Facts,”
U.S.
Department of Justice
ADA
Regulations and Technical Assistance Materials
(updated
April 4, 2006), available at: www.ada.gov/pubs/mythfct.txt
MYTH: The
ADA
is rigid and requires businesses to spend lots of
money to make their existing facilities accessible.
FACT: The
ADA
is based on common sense. It recognizes that
altering existing structures is more costly than making new construction
accessible. The law only requires that public accommodations (e.g.,
stores, banks, restaurants, and hotels) remove architectural barriers in
existing facilities when it is “readily achievable”; that is, it can be done “without
much difficulty or expense.” Inexpensive, easy steps to take include ramping
one step; installing a bathroom grab bar; lowering a paper towel dispenser;
rearranging furniture; installing offset hinges to widen a doorway; or painting
new lines to create an accessible parking space.
MYTH: The
ADA
requires businesses to remove barriers overnight.
FACT: Businesses are only required to do what is readily
achievable at that time. A small business may find that installing a ramp is
not readily achievable this year, but if profits improve it will be readily
achievable next year. Businesses are encouraged to evaluate their facilities
and develop a long-term plan for barrier removal that is commensurate with
their resources.
MYTH: Many
ADA
cases involve frivolous issues.
FACT: The Justice Department’s enforcement of the
ADA
has been fair and rooted in common sense. The
overwhelming majority of the complaints received by the Justice Department have
merit. Our focus is on fundamental issues of access to goods and services that
are basic to people’s lives. We have avoided pursuing fringe and frivolous issues
and will continue to do so.
MYTH: The government
thinks everything is readily achievable.
FACT: Not true. Often it may not be readily achievable to
remove a barrier—especially in older structures. Let’s say a small business is
located above ground. Installing an elevator would not, most likely, be readily
achievable— and there may not be enough room to build a ramp—or the business
may not be profitable enough to build a ramp. In these circumstances, the
ADA
would allow a business to simply provide curbside
service to people with disabilities.
MYTH: Restaurants must
provide menus in Braille.
FACT: Not true. Waiters can read the menu to blind
customers.
MYTH: Sign language
interpreters are required everywhere.
FACT: The
ADA
only requires that effective communication not
exclude people with disabilities—which in many situations means providing
written materials or exchanging notes. The law does not require any measure
that would cause an undue financial or administrative burden.
MYTH: The government is
no help when it comes to paying for accessibility.
FACT: Not so. Federal tax incentives are available to
help meet the cost of
ADA
compliance.
MYTH: Businesses must
pay large fines when they violate the
ADA
.
FACT: Courts may levy civil penalties only in cases brought
by the Justice Department, not private litigants. The Department only seeks
such penalties when the violation is substantial and the business has shown bad
faith in failing to comply. Bad faith can take many forms, including hostile
acts against people with disabilities, a long-term failure even to inquire into
what the
ADA
requires, or sustained resistance to voluntary
compliance. The Department also considers a business’s size and resources in
determining whether civil penalties are appropriate. Civil penalties may not be
assessed in cases against state or local governments or employers.
MYTH: The Justice
Department sues first and asks questions later.
FACT: The primary goal of the Department’s enforcement
program is to increase voluntary compliance through technical assistance and
negotiation. Under existing rules, the Department may not file a lawsuit unless
it has first tried to settle the dispute through negotiations—which is why most
every complaint settles.
MYTH: The Justice
Department never files suits.
FACT: As of January 19, 2007, the Department has been
party to 335 suits under the
ADA
. Although it tries extensively to promote voluntary
compliance, the Department will take legal action when entities continue to
resist complying with the law.
Small
Business Easy Access Public Information Campaign
Rationale and
Implementation Strategy
Communication
Product
|
Double-sided 8.5” X 11” fact
sheet
A fact sheet summarizes the most salient points
regarding an organization or issue in a succinct format. This communication
product uses a “myth and fact” format to distill the most common
misperceptions among small business owners and to provide correct factual
information.
|
Objective
|
This product is tailored to
accomplish two objectives:
■
To
provide accurate, factual information about the
ADA
and its application to small
businesses.
■
To
dispel widely held myths among small business owners about the actual or
potential negative impact of
ADA
enforcement on businesses.
|
Situation
Analysis
|
Through focus groups with the target population,
BPA learned that—
■
Many
small business owners and managers believe myths or “urban legends” about the
ADA
and its enforcement.
■
Many
small business owners are fearful that the Department of Justice will cause
severe economic hardships for small business through overzealous enforcement
of the
ADA
.
■
Many
small business owners fear that the government’s enforcement of the
ADA
is unmindful of the
challenges faced by small businesses.
|
Primary
Audience
|
Owners of small businesses
(defined as any business that sells goods and services to the public and
meets the small business size standards of the U.S. Small Business
Administration).
|
Secondary
Audiences
|
Secondary audiences play a
role as channels to help inform small business owners about the myths and
facts of
ADA
enforcement. Secondary
audiences include—
■
Small
business associations
■
People
with disabilities
■
ADA
advocates, both individuals
and groups
|
Communication
Strategy
|
■
This
communication product seeks to address misperceptions regarding
ADA
enforcement by putting these
misperceptions into words and labeling them as myths.
■
For
each misperception about
ADA
enforcement, the fact sheet provides specific
facts about actual
ADA
enforcement practices by the
Department of Justice, as documented in literature provided by DOJ.
■
The
goal of the fact sheet is to address as many myths as possible using terse
language to put the misperception on the table and then dismantle it with
facts.
|
Distribution
Strategy
|
■
Bulk Distribution
Individuals and organizations
wishing to use the fact sheet as collateral material at public presentations
and as take-away material in the offices of small business associations,
chambers of commerce, and so on will order the fact sheet in bulk from the
Easy Access Web site.
■
Direct Mail
Small business owners will
receive single copies of the fact sheet through direct mail.
■
Easy Access Web Downloads
The “Myths and Facts” fact
sheet can be downloaded as a PDF file from the Easy Access Web site by small
business owners, small business associations, people with disabilities, and
ADA
advocacy groups.
■
PowerPoint Version
A PowerPoint version of the “Myths
and Facts” fact sheet will be created from the existing paper version. The
PowerPoint file can be downloaded from the Easy Access Web site.
|
Distribution
Strategy
(cont’d)
|
■
Collateral Material: Public Meetings
The “Myths and Facts” fact
sheet is an indispensable component of the collateral materials distributed
to audiences whenever
ADA
is discussed in a public
forum (e.g., meetings of small business associations).
■
Collateral Material: Media
The fact sheet is provided to
members of the media as additional collateral material whenever other
communication products are distributed to the media.
■
Search Engine Advertising
When the search terms “
ADA
” and “compliance” are used in
an online search (using popular search engines such as Google, Yahoo, or
MSN), the “Myths & Facts” fact sheet will be supported as a sponsored
link on the right side of the search display screen. Clicking on the link
will display a digital version of the fact sheet suitable for printing or
downloading as a PDF file. Sponsored links for additional search terms
will be added as appropriate.
■
USB Thumb Drive
Promotionals
Promotional USB thumb drives,
with the Easy Access logo and
URL stamped on the casing, will be given away at small business functions. A
PowerPoint version of the fact sheet may be stored on the thumb drive and, as
desired, labeled “SEE ME FIRST!”
|
Impact
Evaluation
|
The number of downloads from
the Easy Access campaign Web site can be counted digitally. Whenever the “Myths
and Facts” fact sheet is used at a public presentation, simple evaluation
postcards (preaddressed, with return postage provided) can be used to evaluate
this communication product, along with other communication products.
|
Small Business Easy Access Public Information Campaign
ACCESS IS GOOD BUSINESS…
Sometimes,
finding new customers and satisfying existing ones all comes down to access.
Block people’s access to your
business with physical or communication barriers, and there’s a good chance
they won’t be spending their money there. Remove barriers, and your business
can really profit. And, you’ll be complying with the Americans with
Disabilities Act (ADA) by serving people with disabilities on an equal basis
with everyone else.
How disability-friendly is your
business? Turn this card over and ask yourself Easy Access’s four key
questions.
|
IT’S EASIER THAN YOU THINK!
Do you consider your
business to be disability-friendly?
o Can a person with a disability park, approach, and enter your
business?
o Once inside, can customers with disabilities access your goods
and services?
o If public restrooms are available, are they accessible to
customers with disabilities?
o Can you and your customers with disabilities communicate with
each other?
For more information on providing access
to people with disabilities, go to the
Easy Access Web site at www.ada/easyaccess.com.
|
Small
Business Easy Access Public Information Campaign
Rationale and
Implementation Strategy
Communication
Product
|
|
Objective
|
This product is
tailored to accomplish two objectives:
■
To
remind small business owners that complying with the
ADA
means serving
people with disabilities on an equal basis with everyone else.
■
To
motivate small business owners to provide access and comply with the
ADA
.
|
Situation
Analysis
|
Through a series
of focus groups with the target population, BPA learned that—
■
Most
small business owners and managers have a rudimentary awareness of
ADA
.
■
However,
most were unclear as to what compliance with the
ADA
might entail,
and some were fearful that compliance was difficult and/or costly.
|
Primary
Audience
|
Owners of small
businesses (defined as any business that sells goods and services to the
public and meets the small business size standards of the U.S. Small Business
Administration)
|
Secondary
Audiences
|
Secondary
audiences for this product are identified as potential channels of
distribution of brochures to the primary audience. The secondary audiences
also will learn useful facts about the
ADA
and its
application to small businesses.
■
Small
business associations
■
Community-based
organizations that may hold events or make presentations for owners of small
businesses
■
People
with disabilities
|
Communication
Strategy
|
The laminated
card provides a communication vehicle to facilitate face-to-face
communication between secondary and primary audiences. As a take-away from a
presentation or ADA-centered event, the card can serve as a reminder of the
need to comply with the
ADA
, and can
educate—and reassure—owners of small businesses about easy ways to be
disability-friendly.
The card can be
expanded in size and used as an additional fact sheet in an online package of
materials that is easy to download and distribute in printed form.
The communication
strategy used in this product provides rudimentary information about the
obligations of small businesses under
ADA
and provides
small business owners and operators with a checklist that illustrates easy
ways to provide access and be disability-friendly.
|
Distribution
Strategy
|
■
Face-to-Face
Secondary
audiences such as small business associations, community organizations (e.g.,
Rotary Clubs), and people with disabilities will pass the card along to the
primary audience.
■
Bulk
Distribution
Secondary
audiences will receive cards in bulk through organizations with which they
affiliate, as well as directly from the Easy Access campaign.
■
Business
Web Site Links
Many business
associations, chambers of commerce, and so forth have Web sites. The
expanded, “fact sheet” version of the Easy Access laminated card will be made
available on these Web sites as a hyperlink, similar to a sponsored link on a
search engine. Clicking on the link will display a digital version of the
card, suitable for printing or downloading as a PDF file.
|
Impact
Evaluation
|
A tally of the
number of cards passed along by a sample of the organizations (secondary
audiences) to which the cards were distributed would provide a measure of
small business interest in the message of the card and in the ADA-centered
events and presentations at which the cards are distributed.
|
For information at your
fingertips, go to the Easy Access Web site at www.ada/easyaccess.com.
The Easy Access Web site has materials that may be of
use to you in your communications with small business owners and others in your
area, including—
■
ADA
Frequently Asked Questions (FAQs)
■
Small Business
Brochure
■
ADA
“Myths
and Facts”
■
Sample news
releases and scripts for audio messages
In addition
to materials that target small businesses directly, there are also materials
for organizations and associations that support small businesses, as well as
landlords and architects. You can use these materials to persuade others to get
involved in Easy Access and work with
you to help your community’s small businesses offer more access to people with
disabilities.
Order free copies of Easy Access materials to hand
out to small businesses and others in your area, or download them to your
computer to print out or distribute through e-mail or other electronic means.
If you modify any of the materials or adapt them to
your community and would like to share your versions with other advocates
working to improve implementation of
ADA
compliance, please upload your materials to the Easy
Access Web site by clicking on the “Add Materials” button, or go to www.ada/easyaccess/newmaterials.com.
You may be interested in the “rationale and
implementation strategy” developed for each of the communication materials
created for the Easy Access campaign, which describes why each of the materials
was developed and how it is intended to be used.
Keep in mind that the Easy Access materials help
support effective one-on-one communication but can’t replace it. Remember,
one-on-one communication between business owners and you – as an important
customer to them – may be the
ADA
’s single most powerful tool of persuasion!
Access is
GOOD
Business
...and
it’s easier than you think!
THE EASY ACCESS PUBLIC INFORMATION CAMPAIGN
WHAT PEOPLE WITH DISABILITIES CAN DO TO ENCOURAGE
SMALL BUSINESS TO BECOME ACCESSIBLE
The EASY ACCESS public information campaign
If you are a
person with a disability—or an advocate on behalf of people with disabilities—
you are invited to be part of a multifaceted information campaign to encourage
owners of small businesses to implement the Americans with Disabilities Act (ADA).
Easy Access
■
Targets small businesses.
■
Promotes the idea to small business owners that it’s good
business to comply voluntarily with the
ADA
, while
reminding them that “it’s the law.”
■
Tells small business
owners that “it’s easier than you think” to implement the
ADA
.
■
Connects small business owners with specific how-to
information and motivates them to use it to make their businesses more
accessible.
Access is the Law. Title III of
the
ADA
says that any business that
serves the public must be readily accessible to and usable by people with
disabilities. The Easy Access public information campaign was developed in the
belief that the more different ways in which small businesses get the important
message about the
ADA
, the more
likely they are to respond.
Taking
a Guerilla Marketing Approach. Guerilla marketing means applying
just the right kind of pressure in just the right way to bring about desired
change. This approach is ideal for activists who seek to bring about positive
social change, people who are driven more by their convictions than their
pocketbooks. In essence, we do more with less by using all our resources
and being smart about how we use them.
By using
communication materials and strategies from Easy Access and making direct connections
with small business owners you know or encounter, you can help promote
community-based
ADA
awareness and
compliance. In fact, one-on-one communication between business owners and
people with disabilities—who, after all, are an important market segment for
them—may be the ADA’s single most powerful tool of persuasion.
Research
suggests that most small businesses are aware that the
ADA
exists but
know little about how it applies to them and how to make their businesses
accessible to people with disabilities. By using education and persuasion as
your lead strategy, and leaving litigation as a last resort, you can come to be
seen as both an ally and a valued customer that the business owner is pleased
to accommodate.
You can
provide a valuable service to the small business owners you know or encounter
by providing them with an easy place to start, so they don’t need to plow
through the vast amount of currently available information that has been
tailored to help small businesses comply with the
ADA
. Point them
to useful, detailed how-to guides, especially helpful technical assistance from
the Department of Justice and the Small Business Administration.
Education
alone may not be sufficient to get businesses to make changes, but it is a good
place to start. You can be a source of support—keep in mind that this is a
sensitive issue for both of you—as well as a valued customer. Look for the
win-win: You want access and owners want customers.
Small
Business Easy Access Public Information Campaign
Rationale and
Implementation Strategy
Communication
Product
|
|
Objective
|
This product is
tailored to accomplish three objectives:
■
To
provide people with disabilities and those who advocate on behalf of them
with strategies and tactics for encouraging small business owners to comply
with the
ADA
.
■
To
provide people with disabilities and their advocates with facts about
themselves as consumers that they can share with small business owners.
■
To
motivate people with disabilities and their advocates to play a role in the
dissemination of Easy Access materials.
|
Situation
Analysis
|
Through
stakeholder dialogues with people with disabilities and their advocates, BPA
learned that—
■
People with disabilities are frustrated by the
lack of
ADA
compliance among
small business owners.
■
Many people with disabilities feel that small
business owners will comply with
ADA
only if forced to do so through mediation or litigation.
■
Many people with disabilities feel that small
business owners are best persuaded to comply voluntarily by emphasizing their
moral and legal obligation to comply.
■
According to research on public information
campaigns, that kind of persuasive strategy is not effective at bringing
about desired behaviors.
|
Primary
Audience
|
People with
disabilities.
|
Secondary
Audiences
|
Secondary audiences
in the Easy Access campaign are potential channels of distribution of
brochures to the primary audience. The secondary audiences also will learn
useful facts about the
ADA
and its
application to small businesses. Secondary audiences include—
■
Individuals
and organizations that advocate on behalf of people with disabilities
■
Small
business owners
|
Communication
Strategy
|
The brochure for
people with disabilities provides a vehicle to facilitate face-to-face
communication between secondary and primary audiences. As a printed document
capable of communicating moderately dense information, the brochure can
educate as well as motivate audience members to seek more information. The
brochure motivates people with disabilities and their advocates to seek additional
information from resources on the Web.
In addition,
recognizing that people with disabilities are frustrated by the lack of small
business compliance with
ADA
, the brochure
shows them how to direct their energies in ways that are most likely to be effective.
The brochure seeks to direct people with disabilities away from communication
strategies that will not work with small business owners.
By explaining how
important people with disabilities are as a market segment (the language of
commerce), the brochure seeks to enhance the self-esteem and efficacy of
people with disabilities.
|
Distribution
Strategy
|
■
Pass-along
Secondary
audiences such as people with disabilities, their advocates, small business
associations, and community organizations such as Rotary Clubs will pass the
brochure along to the primary audience (small business owners).
■
Bulk
Distribution
The secondary
audiences will receive copies of the brochure in bulk through organizations
with which they affiliate, such as Centers for Independent Living, as well as
directly from the Easy Access campaign.
■
Easy
Access Web Download
A digital version
of the brochure will be stored as a PDF file on the Easy Access Web site,
suitable for downloading. A PowerPoint version also can be downloaded from the
Web site. These digital versions of the brochure will have the same full
graphical support as the paper brochure.
|
Distribution
Strategy
(cont’d)
|
■
Search
Engine Advertising
When the search
terms “
ADA
” and “small
business” are used in an online search (using popular search engines such as
Google, Yahoo or MSN), the Brochure for People with Disabilities will be
supported as a sponsored link on the right side of the search display screen.
Clicking on the link will display a digital version of the Brochure for
People with Disabilities, suitable for printing from the screen or
downloading as a PDF file. Sponsored links for additional search terms will
be added as appropriate.
■
iPod
Downloads
An audio version
of the brochure will be recorded and available as an iPod download. Using
Apple’s iTunes distribution system, people with disabilities and their
advocates will be able to download the “audio brochure” to play while doing
other things, including driving (using an interface device to connect the
iPod to the car stereo). The graphics in the brochure will be displayed in
the “Now Playing” box on iTunes while the audio file is playing.
■
USB
Thumb Drive Promotionals
Promotional USB
thumb drives, with the Easy Access logo and URL stamped on the casing, will
be given away at functions attended by people with disabilities and their
advocates. The audio brochure will be stored as MP3 files labeled “LISTEN TO
ME FIRST!” Clicking on this icon will launch the MP3 application on the
recipient’s computer. A PowerPoint version of the brochure can be created and
stored on the thumb drive and labeled “SEE ME FIRST!”
|
Impact
Evaluation
|
The hotlink (URL)
on the brochure could be specific to it. A person accessing the Web site
would first go to a Web page that simply counts the hits and click-throughs.
This would
provide a behavioral measure of the brochure’s effectiveness at motivating
small business owners and managers to seek more information.
|
11. BUSINESS ASSOCIATION TOOLKIT
Access is
GOOD Business
...and it’s easier
than
you think!
SMALL BUSINESSES AND
THE AMERICANS WITH DISABILITIES ACT (
ADA
)
PROGRAM AND PRESENTATION TOOLKIT
[LETTERHEAD]
[DATE]
Easy
Access Public Information Campaign Sponsors
Address
City,
State, ZIP
Dear
Supporters of America’s Small Businesses,
The
Americans with Disabilities Act (ADA) was signed into law by President George
H. W. Bush in 1990. It was intended to break down the barriers that prevented
people with disabilities from leading the full, productive lives that all
Americans are entitled to, and to enable society to benefit from their skills
and talents. There is a long way to go, however, before the promise of the
ADA
is fulfilled,
especially when it comes to people with disabilities having access to the products
and services of our country’s small businesses.
As
an organization that supports or provides a forum for owners and operators of
small businesses in your community [or
state, or region], you are in a position of leadership and responsibility
with regard to members of your association and other small businesses in your
area. Not only is promoting compliance with the law consistent with the mission
of an organization like yours that supports small businesses, it also can be of
enormous financial benefit to the small businesses you serve and, most likely,
to you as small business owners yourselves. People with disabilities may be a large untapped market for you!
This
ADA Program and Presentation Toolkit is being provided by [Information Campaign Sponsors] for your use in the meetings,
programs, presentations, and events you hold for the benefit of the small
businesses you serve. There is a wealth
of information about the
ADA
,
tailored for small businesses like theirs, that is available, and you can help them
find it!
Sincerely,
Easy
Access Public Information Campaign Sponsors
PROGRAM AND
PRESENTATION MATERIALS
WHAT MATERIALS ARE IN
THIS TOOLKIT?
■
Handout: Access Is Good Business
■
Sample Flyer: Inviting members to attend program
■
Small Business Brochure
■
ADA
FAQs
(Frequently Asked Questions)
■
Myths and Facts about the
ADA
■
Access Checklist
■
Additional communication products for architects and
landlords
■
“Ten Small Business Mistakes” video from the U.S.
Department of Justice (available in the online and downloadable versions of
this Toolkit)
WHAT DO THE MATERIALS IN
THIS PACKAGE COVER?
The materials in this package provide a brief overview of
facts small businesses need to know about the
ADA
, and they tell the audience where to go for detailed how-to
information about—
■
New construction, alterations, and additions. If a
business building or facility is altered in any way that affects its usability
(e.g., remodeling, renovation, changes in the structure of the building), the
part of the building that is altered must be as accessible to and usable by
people with disabilities as feasible. New buildings or facilities must be built
in strict compliance with the ADA Standards for Accessible Design.
■
Determining what is “readily achievable.” The
ADA
requires that businesses that serve the public remove
architectural barriers in existing facilities when it is “readily achievable”;
that is, it can be done without much difficulty or expense. Think about how hard businesspeople work already to attract
new customers and to provide good service to the customers they have—it’s an
easy step to get information about how to make sure their businesses are
accessible to people with disabilities.
■
Learning how access
for all of a business’ customers and potential customers can be easily achieved
by following the principles of universal design. Universal design is both art
and craft, combining imaginative design with functional elements that work for
everyone, regardless of where they are on the continuum of human abilities. In
universal design, access is the rule, not the exception.
■
Finding out
about tax incentives that are available to small businesses that
incur expenses in removing barriers or increasing access for people with
disabilities. A tax credit is available to eligible small businesses for a
variety of ADA-related expenses, including removal of architectural barriers. A
tax deduction is also available for the removal of architectural or
transportation barriers to comply with applicable accessibility standards.
SUGGESTIONS FOR USING THE
MATERIALS IN THIS PACKAGE
The materials in this package can be used alone or in
combination for programs, presentations, or other events sponsored by your
organization, or as agenda or program elements in your regular meetings. Feel
free to employ them in any way that is useful to your organization and its
members. You may want to hold events or make presentations on topics such as—
■
How removing
barriers to access for people with disabilities can be seen as a business
opportunity, not just a legal requirement.
■
How the
ADA
is about much more than just lawsuits (or fear of
lawsuits).
■
How providing
the access required by the
ADA
is easier that you might think.
An important goal of this package is to connect small
businesses with the many available resources on the
ADA
that are tailored just for them. To download materials from
the Easy Access public information campaign or find links to
the U.S. Access Board, the Department of Justice’s ADA Business Connection, and
other useful resources on the Web, go to www.ada/easyaccess.com.
A wealth of information about the
ADA
has been
created specifically for American’s small businesses—and you can help them find it!
HANDOUT
ACCESS
IS GOOD BUSINESS BECAUSE—
People
need “a way in” to a business if they are going to become customers. If the
business is in a building that’s difficult to enter, or if some people’s
ability to have access to its full range of products or services is limited,
customers are literally being turned away. That’s what happens when a business
has barriers to access by people with disabilities. As one business owner said,
“You’re leaving money on the table when people with disabilities can’t get into
your store.”
PEOPLE WITH
DISABILITIES REPRESENT A LOT OF CUSTOMERS
According to the 2000 U.S. Census, more than 50 million
Americans reported that they had disabilities. That translates to almost one in
five people in this country. In addition, AARP says that 4 million Americans
turn 50 each year and, thus, become more likely to experience age-related
changes in their hearing, vision, mobility, and overall physical condition that
they may not define as disabilities. That’s a lot of people who shop, work, and
live in our communities who might face barriers that could limit their access.
PEOPLE WITH
DISABILITIES HAVE A
LOT
OF SPENDING POWER
Not counting older Americans, people with disabilities are
estimated to have about $175 billion in discretionary spending power, according
to the U.S. Department of Labor.
ACCESS IS A
GOOD INVESTMENT
It’s clear
that businesses are making a good investment when they make sure people with
disabilities have easy access to their buildings and facilities. Plus, making a
business user-friendly to people with disabilities makes it user-friendly to
everyone. Businesses such as
architects, interior designers, and commercial real estate agents who have
small business clients can serve their clients well—and profitably—if they can
offer important know-how about access. Small business clients are not likely to
have in-house staff or consultants who are knowledgeable about access for
people with disabilities; the professionals who serve them are perfectly
positioned to earn their business by helping them make their facilities
welcoming to all customers, including people with disabilities. For a
landlord, making a business property accessible to people with disabilities
makes it a more valuable business location, not only for current tenants but
also for businesses looking to lease a property in the future.
ACCESS IS
EASIER THAN YOU THINK
The
Americans with Disabilities Act (ADA) requires that businesses make only those
changes that are “easily accomplishable and able to be carried out without much
difficulty or expense,” such as simple ramping of a few steps, installation of
grab bars, and similar adjustments.
Title III
of the
ADA
prohibits
discrimination against people with disabilities in all places of public
accommodation and commercial facilities. If
you own, operate, or lease a business that serves the public, you must remove
barriers to the extent feasible to allow access by people with disabilities. If
you are engaging in new construction for your business building or facility,
you must make sure it is readily accessible to and usable by people with
disabilities.
The
ADA
applies whether a business currently serves customers with
disabilities or not. More than just a building code, the
ADA
goes beyond just ramps and doors. The access required by
the
ADA
is about enabling customers to interact with all aspects of
a business.
SAMPLE FLYER
INVITING MEMBERS TO ATTEND PROGRAM
[NAME OF YOUR ORGANIZATION]
EXPAND YOUR CUSTOMER BASE!
Do you own a small business or
know somebody who does?
Expand your
customer base by improving the access people with disabilities have to your
business. Customers need access. If some people’s access to your full
range of products or services is limited, you are literally turning away
customers.
[Name of your
organization] is presenting a program called “ACCESS IS GOOD BUSINESS” that is
important for all small businesses. The Americans with Disabilities Act (ADA),
which prohibits discrimination against people with disabilities in all places
of public accommodation and commercial facilities, applies to you if you own,
operate, or lease a business that serves the public.
Come to “ACCESS
IS GOOD BUSINESS” – this important event will take place:
Day of the week and date
Time
Location
This event is
sponsored by [name of your organization]. For more information on programs and
membership, please contact ________________.
Small Business Easy Access Public Information
Campaign
Rationale and
Implementation Strategy
Communication
Product
|
Seven-page
printed packet that includes cover letter, a description of package contents,
suggestions for how to use the materials, a handout that describes basic
facts of ADA compliance, and a sample flyer for a meeting sponsored by a
business association on the topic of ADA compliance.
The package
serves as an introduction to a set of collateral materials (other
communication products containing other campaign message points directed at
small business owners) that would be sent to business associations as part of
the toolkit.
|
Objective
|
This product is
tailored to accomplish three objectives:
■
To
provide business associations that have small business members with basic
facts about
ADA
compliance for
small businesses.
■
To
provide business associations that have small business members with materials
about the
ADA
that are useful
and valuable to their members and are easy to use for presentations,
meetings, and events.
■
To
motivate small business associations to play a role in the dissemination of
Easy Access materials.
|
Situation
Analysis
|
Through
stakeholder dialogues and discussions with small business owners, BPA learned
that—
■
Small
business owners network with other small business owners through business
associations that include small businesses as members.
■
Small
business associations provide a safe environment for small business owners to
learn about a topic they don’t fully understand and may consider a threat to
their profitability.
|
Situation
Analysis
(cont’d)
|
■
Because small business owners interact
frequently with these associations, the organizations provide a good
dissemination point. The materials allow the association to provide a
value-added service to its members at no cost.
■
Research on social marketing shows that people
are more likely to sustain desired behaviors when they commit to a behavior
in the presence of others whose opinions they respect. Small business owners
who make a commitment to access in the context of a meeting with other
business owners are more likely to honor the commitment.
|
Primary
Audience
|
Small business
associations and other community organizations that have small business
members.
|
Secondary
Audiences
|
Secondary
audiences include small business owners.
|
Communication
Strategy
|
This
communication product seeks to motivate small business associations to
provide ADA-related information to their members as a service by—
■
Providing
information about the importance and value of
ADA
compliance.
■
Providing
materials that are easy for organizations to present to their members.
■
Packaging
together materials that could be used for a full meeting agenda or program.
|
Distribution
Strategy
|
■
Direct Mail
The business
association toolkit is mailed and e-mailed to small business associations by
the organization sponsoring the Easy Access campaign, using membership lists
of such organizations as the Rotary Club. The toolkit serves as a gateway to
a variety of materials directly targeted at small businesses.
■
Search
Engine Advertising
When the search
terms “
ADA
” and “small
business” are used in an online search (using popular search engines such as
Google, Yahoo, or MSN), the toolkit will be supported as a sponsored link on
the right side of the search display screen. Clicking on the link will
display a digital version of the toolkit, suitable for printing from the
screen or downloading as a PDF file. Sponsored links for additional search
terms will be added as appropriate.
|
Distribution
Strategy
(cont’d)
|
■
Easy
Access Web Download
PDF versions of
the business association toolkit and its associated materials will be
available as a download from the Easy Access Web site. This digital version
of these materials will have the same full graphical support as the paper
materials. The materials will include—
o
Small
Business Brochure
o
ADA
FAQs (Frequently
Asked Questions)
o
Myths
and Facts about the
ADA
o
Access
Laminated Card
o
Architect
Flyer and Landlord Brochure
o
“Ten
Small Business Mistakes” video from the U.S. Department of Justice (available
in the online and downloadable versions of this toolkit)
■
iPod Downloads
An audio version
of the business association toolkit and its associated materials will be
recorded and available as an iPod download. Using Apple’s iTunes distribution
system, members of small business associations will be able to download the “audio
flyer” to play while jogging, walking, and so forth, as well as to listen to
while driving (using an interface device to connect the iPod to the car
stereo). The graphics in the business association toolkit will be displayed
in the “Now Playing” box on iTunes while the audio file is playing.
■
USB
Thumb Drive
Promotionals
Promotional USB
thumb drives, with the Easy Access logo and URL stamped on the casing, will
be given away at small business association functions. PowerPoint versions of
the toolkit and its associated materials, including the DOJ video “Ten Small
Business Mistakes,” can also be stored on the thumb drive and labeled “SEE ME
FIRST!”
|
Impact
Evaluation
|
When the business
association toolkit and its associated materials are sent to a small business
association (whether solicited or unsolicited), a follow-up phone call would
confirm that the materials arrived to the destination. In that call, the
evaluator could determine how the materials are being used. If a meeting of
small businesses is planned to discuss the
ADA
, a packet of
program evaluation postcards (return postage prepaid) could be sent to the
association.
|
INFORMATION –
AT YOUR FINGERTIPS!
There’s a wealth of information available about the
ADA
, tailored for small business owners and managers,
building owners, and other target audiences. You can provide a valuable
service to the small business owners to whom you lease by helping them find an
easy place to start, so they don’t need to plow through the vast amount of
currently available information that has been tailored to help small businesses
comply with
ADA
. It’s easy to find information that can help you and
your tenants and prospective tenants.
To find information and materials that clarify your
responsibilities under the
ADA
, go
to www.ada/easyaccess.com. There you will find information developed specifically for the Easy Access
public information campaign, as well as links to valuable resources such as the
U.S. Access Board, the Small Business Administration, and the ADA Business
Connection of the Department of Justice that cover topics such as—
■
Evaluating what
barriers may need to be removed.
■
Determining what
is “readily achievable.”
■
Doing
alterations and additions.
■
Complying with
ADA
Standards for Accessible Design.
■
Other access
requirements.
For additional information on
the
ADA
and small businesses, you may wish to talk to an
ADA
specialist at the U.S. Department of Justice at:
800-514-0301 (voice) or 800-514-0383 (TTY).
Access is
GOOD Business
. . . and it’s easier
than you think!
BUSINESS PROPERTY OWNERS AND LANDLORDS
AND THE AMERICANS WITH DISABILITIES
ACT (
ADA
)
KNOW YOUR
RESPONSIBILITIES
Title III of the Americans with Disabilities Act
(ADA) prohibits discrimination against people with disabilities in all places
of public accommodation and commercial facilities. If you own, operate, or
lease a business that serves the public, you must remove barriers to the extent
feasible to allow access by people with disabilities. Furthermore, if you are
engaging in new construction for your business building or facility, you must
make sure it is readily accessible and usable by people with disabilities.
If you own a building that includes a place of public
accommodation (i.e., a business that serves the public), both you and those
tenants are fully responsible for complying with the
ADA
’s requirements.
IMPROVE THE VALUE OF
YOUR PROPERTY
Access is good business for you as a landlord. Making
your property accessible for people with disabilities makes it a more valuable
business location not only for your current tenants but also for businesses
looking to lease a property in the future.
Yes, it’s the law, and yes, it applies to you if you
lease to a business that serves the public. Title III of the
ADA
says you and your tenants must make whatever readily
achievable modifications are needed to remove barriers and permit access by
people with disabilities.
Landlords and tenants may agree in their lease or
other contract to allocate shared financial responsibility for
ADA
compliance, but such allocation is only between the
two parties. Both landlord and tenant retain full legal responsibility for
ADA
compliance. Failure to address
ADA
issues may result in your being held liable for
noncompliance with federal law.
Be flexible as you work together to make the place of
business on your property as welcoming as possible to all customers.
IT’S EASIER THAN YOU
THINK
The ADA says that both you and your business tenant
are fully liable for compliance with all provisions of the ADA, which means
making changes that are “easily accomplishable and able to be carried out
without much difficulty or expense,” such as simple ramping of a few steps,
installation of grab bars, and similar modest adjustments.
You and your tenants may be able to take advantage of
tax incentives available to businesses that incur expenses in removing barriers
or increasing access for people with disabilities. A tax credit is available to
eligible small businesses for a variety of ADA-related expenses, including
removal of architectural barriers.
A tax deduction also is available for the removal of
architectural or transportation barriers to comply with applicable
accessibility standards. For more information on this specific topic, see the
Department of Justice publication “Tax Incentives Packet on the Americans with
Disabilities Act” at www.ada.gov/taxpack.htm.
Small Business Easy Access Public Information
Campaign
Rationale and
Implementation Strategy
Communication
Product
|
|
Objective
|
This product is
tailored to accomplish three objectives:
■
To
persuade building owners who lease to small businesses of the value of their
own and their tenants’ compliance with the
ADA
.
■
To
motivate building owners to communicate with their tenants regarding the
messages of the campaign.
■
To
motivate building owners to seek more specific information about how to
comply with the ADA and to tell their tenants where to obtain more detailed
sources of information about how small businesses can comply with the ADA.
|
Situation
Analysis
|
Through
stakeholder dialogues with people with disabilities, representatives of both
large and small businesses, and other stakeholders, BPA learned that—
■
Most
building owners and landlords appear to have a rudimentary awareness of
ADA
.
■
However,
many seem to be unaware of their own
ADA
responsibilities
and those of their small business tenants with regard to providing access to
people with disabilities.
■
Materials
that have already been developed by entities such as SBA and DOJ appear to be
well known to landlords for large businesses, but many landlords of small
businesses don’t yet know of their existence.
|
Primary
Audience
|
Commercial
building owners who lease to small businesses (defined as any business that
sells goods and services to the public and meets the small business size
standards of the U.S. Small Business Administration).
|
Secondary
Audiences
|
Secondary
audiences for this product are identified as potential channels of
distribution of brochures to the primary audience. The secondary audiences
also will learn useful facts about the
ADA
and its
application to small businesses.
■
Small
business associations
■
Other
local associations of building owners, landlords
■
People
with disabilities
|
Communication
Strategy
|
The brochure
provides a communication vehicle to facilitate face-to-face communication
between secondary and primary audiences. As a printed document capable of
communicating moderately dense information, the brochure can educate as well
as motivate audience members to seek more information.
The brochure can
also be used as part of an online package of materials that are not only
visually pleasing online but also easy to download and distribute in printed
form.
The communication
strategy executed in this brochure provides rudimentary information about the
obligations of landlords of small businesses under the
ADA
. The brochure
also motivates such building owners and landlords to seek more specific
information about how to comply with the
ADA
and to tell
their tenants where to obtain more detailed sources of information about how
small businesses can comply with the
ADA
.
|
Distribution
Strategy
|
■
Bulk
Distribution
Secondary
audiences such as small business associations, other local associations of
building owners and landlords, community organizations such as Rotary Clubs,
and people with disabilities will pass brochures along to the primary
audience (landlords for small businesses). These secondary audiences will
receive copies of the brochures in bulk through organizations with which they
affiliate, as well as directly from the Easy Access campaign.
■
Direct
Mail
Building owners
and landlords can receive brochures through direct mail.
■
Search
Engine Advertising
When the search
terms “
ADA
” and “architectural”
are used in an online search (using popular search engines such as Google,
Yahoo, or MSN), the architect flyer will be supported as a sponsored link on
the right side of the search display screen. Clicking on the link will
display a digital version of the flyer, suitable for printing or downloading.
Other search terms and phrases can be added as sponsored links.
|
Distribution
Strategy
(cont’d)
|
■
iPod
Download
An audio version
of the landlord brochure will be recorded and available as an iPod download.
Using Apple’s iTunes distribution system, landlords will be able to download
the “audio brochure”; they will be able to listen to it while driving (using
an interface device to connect the iPod to the car stereo). The graphics in
the brochure will be displayed in the “Now Playing” box on iTunes while the
audio file is playing.
|
Impact
Evaluation
|
The hotlink (URL)
on the brochure could be specific to the brochure for landlords. A building
owner or landlord accessing the Web site would first go to a Web page that
simply counts the hits and click-throughs.
This would
provide a behavioral measure of the brochure’s effectiveness at motivating
building owners or landlords of small businesses to seek more information.
|
ARCHITECTS AND
INTERIOR DESIGNERS, TELL YOUR CLIENTS:
Access is
GOOD Business
...and
it’s easier
than you think!
Your clients that are small
businesses—or those who lease facilities to small businesses—may already
recognize the economic benefits of having a place of business that is welcoming
to everyone, including people with disabilities. They may also know that under
Title III of the Americans with Disabilities Act (ADA) if you own, operate, or
lease a business that serves the public and are engaging in new construction
for your business building or facility, you must make sure it is readily
accessible to people with disabilities.
VALUE FOR YOU AND
YOUR CLIENTS
As an architect or interior designer,
you are in a position of leadership and responsibility with regard to your
clients. You are providing them with value when you let them know that new buildings and facilities must be built in
strict compliance with the ADA Standards for Accessible Design and that you, as
a professional, will seek to meet or exceed those standards for new
construction and alterations.
You also are providing them with value
when you let them know that access for people with disabilities has clear
economic benefits for them and that they are making a good investment when they
make sure that people with disabilities have easy access to their buildings and
facilities.
Doing your part to make sure that everyone can access the buildings that
you design is a good investment for you as an architect. You can take the
small business’s dreams and design a place that welcomes all customers,
including people with disabilities.
IT’S EASIER THAN YOU THINK
A wealth of information is
available about the
ADA
, tailored for clients like yours, and you can help
them find it! To download the accompanying brochure—“Small Business and the
Americans with Disabilities Act (ADA)”—or to find other information suitable for handouts, flyers, and so on,
go to www.ada/easyaccess.com.
There you will find links to
the U.S. Access Board, the Department of Justice’s ADA Business Connection, and
other value-added material to give your clients regarding—
■
Requirements for new construction.
■
Doing alterations and additions.
■
Complying with
ADA
Standards for
Accessible Design.
■
Other access requirements.
Small Business Easy Access
Public Information Campaign
Rationale and
Implementation Strategy
Communication
Product
|
|
Objective
|
This product is
tailored to accomplish two objectives:
■
To
persuade commercial architects with small business clients of the value of
their clients’ compliance with the
ADA
.
■
To
motivate architects to communicate with their clients regarding the messages
of the campaign and tell them where to obtain more detailed sources of
information about how to comply with the
ADA
.
|
Situation
Analysis
|
Through
stakeholder dialogues with people with disabilities and representatives of
both large and small businesses, including architects, BPA learned that—
■
Most
architects are aware of the
ADA
.
■
Technical
assistance materials that have been developed by entities such as SBA and DOJ
appear to be well known to architects, although they are not as well used as
they might be.
■
However,
many architects are unaware that the
ADA
may be
considered as a business opportunity for them rather than a compliance
burden.
■
Further,
many are unaware of how they can be of service to their clients, especially
their small business clients, with regard to compliance with the
ADA
.
|
Primary
Audience
|
Commercial
architects with small business clients (defined as any business that sells
goods and services to the public and meets the small business size standards
of the U.S. Small Business Administration).
|
Secondary
Audiences
|
Secondary
audiences for this product are identified as potential channels of
distribution of flyers to the primary audience. The secondary audiences also
will learn useful facts about the
ADA
and its
application to small businesses.
■
Associations
for architects and builders (e.g., AIA)
■
Other
business associations
■
People
with disabilities
|
Communication
Strategy
|
The flyer
provides a communication vehicle to facilitate face-to-face communication
between secondary and primary audiences. As a printed document capable of
communicating moderately dense information, the flyer can educate as well as
motivate audience members to seek more information.
The flyer will be
accompanied by the “Small Business and the Americans with Disabilities Act
(ADA)” brochure, which can be distributed by the architects to their clients.
With the
accompanying brochure, the flyer can also be used as part of an online
package of materials that are not only visually pleasing online but also easy
to download and distribute in printed form.
The communication
strategy executed in this flyer provides messages that motivate architects to
communicate with their clients regarding the messages of the overall campaign
and tell them where to obtain more detailed information from resources on the
Web.
|
Distribution
Strategy
|
■
Bulk Distribution
Associations for
architects and builders, other business associations to which architects may
belong, community organizations such as Rotary Clubs, and people with
disabilities will pass along the flyers and accompanying brochures to the
primary audience (architects).
These secondary audiences will receive copies of the flyers and brochures in
bulk through organizations with which they affiliate, as well as directly
from the Easy Access campaign.
|
|
■
Direct Mail
Architects will
receive the flyers and accompanying brochures through direct mail, using
membership lists of such organizations as AIA.
■
Easy Access Web Download
A PDF version of
the architect flyer (and of the small business brochure) will be available as
a download from the Easy Access Web site. This digital version of these
materials will have the same full graphical support as the paper materials.
|
Distribution
Strategy
(cont’d)
|
■
Search
Engine Advertising
When the search
terms “
ADA
” and
“architectural” are used in an online search (using popular search engines
such as Google, Yahoo, or MSN), the architect flyer will be supported as a
sponsored link on the right side of the search display screen. Clicking on
the link will display a digital version of the flyer, suitable for printing
or downloading. Other search terms and phrases may be added as sponsored
links.
■
iPod Downloads
An audio version
of the flyer will be recorded and available as an iPod download. Using
Apple’s iTunes distribution system, architects will be able to download the
“audio flyer” to play while jogging, walking, and so forth, as well as to
listen to while driving (using an interface device to connect the iPod to the
car stereo). The graphics in the flyer will be displayed in the “Now Playing”
box on iTunes while the audio file is playing.
■
USB
Thumb Drive
Promotionals
Promotional USB
thumb drives, with the Easy Access logo and URL stamped on the casing, will
be given away at architects’ functions. The audio flyer and brochure will be
stored as MP3 files labeled “LISTEN TO ME FIRST!” Clicking on this icon will
launch the MP3 application on the recipient’s computer. A PowerPoint version
of the flyer and the brochure can also be stored on the thumb drive and
labeled “SEE ME FIRST!”
|
Impact
Evaluation
|
The hotlink (URL)
on the flyer could be specific to the flyer for architects. An architect
accessing the Web site would first go to a Web page that simply counts the
hits and click-throughs.
This would
provide a behavioral measure of the flyer’s effectiveness at motivating
architects with small business clients to seek more information.
|
Conclusion
Research, as well as collaboration and dialogues with diverse
ADA
stakeholders nationwide, revealed a picture of
ADA
implementation that is both hopeful and fraught with challenges. The
ADA
has achieved important and lasting successes in certain sectors of society.
Stakeholders point out the increase in accessible fixed-route public
transportation as required by Title II and the widespread availability of
communications access made possible by implementation of the relay service as
required by Title IV of the
ADA
.
They also report an increase in architectural access, especially in newly
constructed buildings and facilities that are subject to the requirements of
Title II and III. These important accomplishments are making it easier for more
people with disabilities to live active and engaged lives in their communities,
as the
ADA
intended. However, while
these notable successes call for acknowledgment, stakeholders identified areas
where implementation has lagged far behind. They also identified methods for
addressing some of the key implementation issues that have the potential for
broad impact.
These methods include a stepped-up role for Federal Government
enforcement agencies, especially for investigating violations of Title III, and
greater federal agency leadership in establishing government/business
collaborations that could address many of the key needs. These needs include
ADA
training and education on Title I and III for broad audiences; creation of
centers of excellence across all titles of the law; evaluation of existing
ADA
technical assistance methods, procedures, and materials; and initiating needed
research. The Department of Transportation was called on to take specific
actions related to enforcement of the
ADA
’s
transit provisions, and the Federal Communications Commission should take steps
to ensure funding as new communication technologies come online.
Many stakeholders called on Congress to take action in a
variety of areas, including restoring the definition of disability so certain
people who experience discrimination in employment again have access to
remedies, and removing attorney fee restrictions on
ADA
cases so people with disabilities can secure legal representation when they
need it for civil rights claims.
Other creative ideas for improving
ADA
implementation came out of the discussions and research. They focus on building
alliances among diverse business communities; membership, trade, and
professional associations; and unions; and increasing disability awareness.
Some exciting and effective
ADA
implementation practices were identified that can serve as models and that
illustrate how diverse covered entities are going about making the promise of
the
ADA
a reality. These practices
demonstrate the need for organized, ongoing best practices research that will
add to the
ADA
implementation
knowledge base.
Significant effort was devoted to analyzing and understanding
why small businesses have failed to implement Title III of the
ADA
.
The reasons for this failure are complex and arise, ironically, from an attempt
to ensure that small businesses in particular were not subject to an inflexible
burden of compliance. The lack of reliable, tailored technical information and
insufficient motivation for businesses to seek out information proactively
contribute to the problem. There is also insufficient administrative
enforcement, which would provide motivation for compliance while also
publicizing how the “readily achievable” barrier-removal standard of Title III
works in practice. These factors leave people with disabilities with only two
options to resolve access problems: They can ask the business to comply
voluntarily or they can file a lawsuit. Research revealed and stakeholders confirmed
that requests for voluntary compliance have met with limited success. While the
media have portrayed those who litigate as self-serving, the percentage of
attorneys and plaintiffs who bring Title III lawsuits primarily for self-gain
is minuscule compared with the number of businesses that persist in ignoring
the existence of obligations under federal and state accessibility laws. There
is a private right of action under Title III because Congress recognized that
voluntary compliance and collaboration is an unreliable vehicle for providing
access and that people with disabilities should no longer be forced to rely on
the kindness of neighbors or strangers.
Diverse stakeholders identified numerous methods for improving
Title III implementation, especially by small businesses; these included tying
licensing to
ADA
training for
building and construction professionals, creating targeted materials for
businesses and peer-to-peer distribution mechanisms, and creating incentives
and penalties that are embedded in business interactions with locales.
ADA
training for people with disabilities remains a very high priority, and
concerns of culturally diverse communities should be the focus of new
initiatives.
Specifically, the Department of Justice and all technical assistance
organizations, such as the ADA Technical Assistance and IT Centers, must be
given a specific funding and mandate for outreach to chambers of commerce,
Rotary Clubs, and other small business organizations—including those serving
culturally diverse communities, rural areas, and small towns—to disseminate
technical resource information and to help lower the current level of tension
and fear about the ADA that is present in business communities.
The accessibility requirements of civil rights law must be
publicly broadcast, acknowledged, and respected at the same level as other
applicable regulations and laws, and equally acknowledged as a make-or-break
issue in running a business. Widespread Title III compliance cannot be achieved
without business and public outreach, a visible and efficient administrative
enforcement procedure, the wide availability of qualified accessibility
expertise, and economic incentives such as tax and other credits.
Appendix A – Sample Structured
Negotiations Agreement
1. Parties
The Parties to this Agreement are (1) COMPANY and
(2) Goldstein, Demchak, Baller, Borgen & Dardarian (GDB) and Co‑Counsel
Elaine B. Feingold (Feingold) and their clients: LIST CLIENTS (Claimants).
2. Purposes
The purposes of this agreement are:
a.
To protect the interest of all Parties during the pendency of
negotiations concerning disputed claims over SUBJECT OF NEGOTIATIONS
b.
To provide an alternative to litigation in the form of good faith
negotiations concerning disputed claims SUBJECT OF THE DISPUTE; and
c.
To explore whether the Parties’ disputes concerning the SUBJECT OF
DISPUTE can be resolved without the need for litigation.
3. Tolling of Alleged
ADA
and State Law
Claims
The Parties recognize and agree that, as used in
this Agreement, the term “Claim(s)” includes any and all claims that could be
brought either before an administrative agency or in a civil lawsuit in either
state or federal court alleging that people with vision disabilities are being,
have been, and continue to be discriminated against due to the alleged
inaccessibility of SUBJECT OF DISPUTE
To the extent that Claimants could assert a Claim
or any Claims under any state or federal statute, which assertion COMPANY
denies, such Claims will be tolled beginning with the effective date of this
Agreement and will remain tolled during negotiations and throughout the
duration of the tolling agreement as described in paragraph 6 below.
The Parties agree that during the duration of the
tolling agreement GDB, Feingold, and their clients will refrain from filing
state or federal Claims against COMPANY with any agency or court regarding the
subject of this Agreement.
The Agreement is not intended to revive and does
not revive any Claims which would have been barred by the applicable statute of
limitations prior to the effective date of this Agreement. Further, the purpose
and effect of this Agreement is to stop the running of any applicable statute
of limitations as of the effective date of the Agreement and to restart the
running of that statute of limitations immediately upon the expiration of the
thirty-day period set forth in paragraph 6. At the end of the thirty-day
period, all applicable statutes of limitations shall resume running from the
point that they were tolled. In other words, the statutes are not reset by the
execution of this Agreement.
4. Topics To Be Addressed
through Negotiations: The Parties agree that the subject of negotiations
undertaken pursuant to this Agreement will include, but are not limited to:
a.
BASIC TOPIC
b.
TRAINING OR POLICIES RELATED TO BASIC TOPIC;
c.
Reasonable damages and reasonable attorney fees, costs and litigation
expenses as that term is defined in the Americans with Disabilities Act, 42
U.S.C. § 12205 (the ADA) and applicable state laws.
d.
Scope and format of binding agreement addressing (a) –
(c), monitoring, and other relevant issues.
5. Attorney Fees
The Parties recognize that execution of this
Agreement is in lieu of Claimants filing a complaint in federal court. The
Parties agree that Claimants shall not be precluded from recovering reasonable
attorney fees, litigation expenses, and costs, as defined by the
ADA
and applicable state laws,
because Claimants pursued alternative means of dispute resolution, including
but not limited to settlement negotiations, mediation and/or arbitration,
rather than instituting a civil action in this matter. In this regard, COMPANY
will not assert that Claimants or Counsel for Claimants are not entitled to
recover attorney fees, expenses or costs because Claimants or their Counsel did
not obtain relief in the form of an enforceable judgment, consent decree or
court order.
6. Duration of Tolling
Agreement
The tolling effectuated in this Agreement will
remain in effect until thirty (30) days after any party gives written notice by
certified mail to all other parties that the tolling agreement is no longer
effective. Upon such notice, COMPANY’s obligation to negotiate with Claimants
regarding the topics listed in paragraph 4 will expire.
7. No Admission of
Liability
The Parties
expressly recognize and agree that entering into this Agreement does not in any
way constitute an admission of liability or any wrongdoing by any Party, and
that all discussions and negotiations pursuant to this Agreement will
constitute conduct made in an effort to compromise claims within the meaning of
Federal Rules of Evidence, Rule 408 or any similar state rule of evidence.
8. Confidentiality
The
Parties and their attorneys agree that all information discussed or exchanged
during the negotiations contemplated by this Agreement about COMPANY including
but not limited to information about LIST ISSUES OF IMPORTANCE TO COMPANY SUCH
AS, business strategy or plans, staffing, internal processes, vendor
capability, maintenance and equipment, product or service concepts or pricing,
which are not generally available to the public (COMPANY Proprietary
Information) shall not be disclosed to any third parties, including the general
membership of the Claimants except as legally required. To the extent the
Parties retain any experts or consultants for the purposes contemplated by this
Agreement, each such expert or consultant will be advised of the provisions of
this paragraph and will execute an agreement to maintain the confidentiality of
COMPANY Proprietary Information.
9. Rules of Construction
Each Party, through its
legal counsel, has reviewed and participated in the drafting of this Agreement;
and any rule of construction to the effect that ambiguities are construed
against the drafting Party shall not apply in the interpretation or
construction of this Agreement. Section titles used herein are intended for
reference purposes only and are not to be construed as part of the Agreement.
10. Effective Date
The effective date of this Agreement is the date of
the last signature below.
CO-COUNSEL
LAW OFFICE OF ELAINE B.
FEINGOLD
Date: __________________ By:
________________________________
Attorneys for Claimants
COMPANY
Date: __________________ By:
________________________________
Ana
Acton, Systems Change Advocate
FREED
Center for Independent Living
Grass Valley
,
CA
Catherine
Kelly Baird
Executive
Director
California
Governor’s Committee on Employment of People with Disabilities
Sacramento
,
CA
Susan
Barnhill Chandler, Board Member
Californians
for Disability Rights
Sacramento
,
CA
Connie
Barker, Vice President
Environmental
Health Network
San Rafael
,
CA
Dwight
Bateman, Executive Director
Disability
Rights Resources Agency for Independent Living
Modesto
,
CA
Robert
Benson
California
Disability Community Action
Network
Sacramento
,
CA
Carol
Bradley,
ADA
Coordinator
City
of
Sacramento
Sacramento
,
CA
Leslie
Brewer
Director
of Advocacy and Services
Placer
Independent Resource Services
Auburn
,
CA
Kim
Carey
Assistant
to Executive Director
California Governor’s Committee on Employment of
People with Disabilities
Sacramento
,
CA
Brian
Connors, Staff Services Analyst
California
Employment Development Department
Sacramento
,
CA
Rachel
Ford
California
Disability Community Action
Network
Sacramento
,
CA
Don
Fox, Accessibility Compliance Coordinator
Accessible
Design Collaborative
Mariposa
,
CA
Kristi
Gillen
Sacramento
,
CA
Ann
Guerra, Executive Director
FREED
Center for Independent Living
Grass Valley
,
CA
Robert
Holland
Sacramento
,
CA
Mark
Leeper, Executive Director
Disability
Action Center NW
Moscow
,
ID
Bill
Maskill
Strokewaves,
FREED CIL
Grass Valley
,
CA
Tink
Miller, Executive Director
Placer
Independent Resource Services
Auburn
,
CA
Christina
Mills-Hovious
Statewide
Community Organizer
California
Foundation of Independent
Living Centers
Sacramento
,
CA
Mary
Nicholson
Healing
in Motion
French
Camp, CA
Marty
Omoto, Executive Director
California
Disability Community Action
Network
Sacramento
,
CA
Pam
Porteous-Hunt, Associate Director
State
Independent Living Council
Sacramento
,
CA
Mitch
Pomerantz
ADA
Compliance Officer
Department
on Disability
City
of
Los Angeles
Los Angeles
,
CA
Anne
Scheck
Trammart,
Inc., Medical Writing
Thousand Oaks
,
CA
Richard
Skaff
Mill Valley
,
CA
Ken
Stein
Mayor’s
Office on Disability
City
and
County
of
San Francisco
San Francisco
,
CA
Nancy
Thomas
Alameda
County
Network
of Mental Health Clinics
Oakland
,
CA
Terelle
Terry
Californians
for Disability Rights
Sacramento
,
CA
Laura
Williams, President
Californians
for Disability Rights
Glendona
,
CA
Marcia
Yamamoto, Manager
California
Employment Development Department
Sacramento
,
CA
Title III, Large Businesses
February 21–22, 2006
San
Francisco
,
California
Shelley
Bergum, CEO
California
Communications Access Foundation
Oakland
,
CA
Gene
Chelberg, Director
Disability
Programs and
Resource
Center
San Francisco
State
University
San Francisco
,
CA
Anne
Cohen
Disability
and Health Policy Consultant
Disability
Health Access
San Francisco
,
CA
Lainey
Feingold, Attorney
Law
Offices of Lainey Feingold
Berkeley
,
CA
Carl
Goldberg, Associate Counsel
Federated
Department Stores, Inc.
San Francisco
,
CA
Hollis
Harris, Capital Projects Team Manager
Kaiser
Permanente, Inc.
Walnut Creek
,
CA
Logan
Hopper, Architect
Logan
Hopper Associates
Oakland
,
CA
Erica
Jones, Executive Director
Pacific
ADA & TA
Center
Oakland
,
CA
Karen
Jackson
Creative
Movement Coordinator
Berkeley
YMCA
Berkeley
,
CA
Tracy
Justesen, Attorney
U.S.
Department of Justice
Washington
,
DC
Walter
Leveille
Director
of Access Compliance Services
Evan
Terry Associates
Birmingham
,
AL
Jim
Mercurio
Director,
Stadium Operations
San Francisco
49ers
San Francisco
,
CA
Blossom
Michaeloff
Web
Research and Design
Wells
Fargo Bank
San Francisco
,
CA
Mark
Neider, Nurse Manager
Wells
Fargo
San Francisco
,
CA
Larry
Paradis, Executive Director
Disability
Rights Advocates
Berkeley
,
CA
Terrie
Stanley, Director
Health
Services
Partnership
HealthPlan of
California
Fairfield
,
CA
Ken
Stein
Mayor’s
Office on Disability
City
and
County
of
San Francisco
San Francisco
,
CA
Jim
Terry, AIA
Evan
Terry Associates
Birmingham
,
AL
Title III, Small Businesses
February 23–24, 2006
San Francisco
,
California
Anita
Aaron, Executive Director
Rose Resnick Lighthouse for the
Blind
San Francisco
,
CA
Jim
Abrams, President and CEO
California
Hotel and Lodging Association
Sacramento
,
CA
Pat
Christensen, President
San Francisco
,
CA
Paul
Church
Disability
Service Specialist
City
of
Berkeley
Berkeley
,
CA
Stephanie
Cox, Outreach Coordinator
Disability
Rights Advocates
Berkeley
,
CA
Jan
Garrett, Executive Director
Center
for Independent Living
Berkeley
,
CA
Erica
Jones, Executive Director
Pacific
ADA
and TA Center
Oakland
,
CA
Tracy
Justesen, Attorney
U.S.
Department of Justice
Washington
,
DC
Tom
Lakritz, Deputy City Attorney
San Francisco
City
Attorney’s Office
San Francisco
,
CA
Herb
Levine, Executive Director
San Francisco
,
CA
Walter
Leveille, Architect
Evan
Terry Associates
Birmingham
,
AL
Michael
Mankin, Architect
Division
of the State Architect
Sacramento
,
CA
Clifford
Payne, Vice President
Accessibility
Development Associates
Pittsburgh
,
PA
Ken
Stein
Mayor’s
Office on Disability
City
and
County
of
San Francisco
San Francisco
,
CA
Jim
Terry, AIA
Evan
Terry Associates
Birmingham
,
AL
Transportation
April 5–6, 2006
Washington
,
D.C.
Bob
Ashby
Deputy
Assistant General Counsel for Regulation and Enforcement
Office
of the General Counsel
U.S.
Department of
Transportation
Washington
,
DC
Barry
Barker, Executive Director
Transit
Authority of
River
City
Louisville
,
KY
Pam
Boswell, Vice President
Program
Management and Educational Services
American
Public Transit Association
Washington
,
DC
Victor
Burke, Executive Vice President
Dallas
Area Rapid Transit
Dallas
,
TX
Dennis Cannon, Accessibility Specialist
U.S.
Access Board
Washington
,
DC
Robert
Carlson
Technical
Assistance Specialist
Community
Transportation Association of
America
Washington
,
DC
David
Chia, Senior Consultant
Planners
Collaborative Transportation
Boston
,
MA
Nicholas
Coates
Equal
Opportunity Specialist
Office
of Civil Rights
Federal
Transit Administration
Washington
,
DC
John Day
Federal
Transit Administration
Washington
,
DC
Nancy
DiModica
Office
of Transportation Policy
Office
of Safety, Energy and Environment
U.S.
Department of
Transportation
Washington
,
DC
Doug
Douglas, Vice President
Paratransit
Services
Dallas
Area Rapid Transit
Dallas
,
TX
John
Gaffney, Member
Governor
Bush’s ADA Working Group
Ocala
,
FL
Bonnie
Graves, Attorney Advisor
Office
of Chief Counsel
Federal
Transit Administration
Washington
,
DC
Gerri
Mason Hall, Vice President
Business Diversity and Strategic
Initiatives
Amtrak
Washington
,
DC
Chris
Hart
Adaptive
Environments
Boston
,
MA
Russell
Haynes,
ADA
Coordinator
Greyhound
Lines
Dallas
,
TX
Kevin
Irvine
Senior
Transportation Advocate
Equip
for Equality
Chicago
,
IL
Christian
Kent
Washington
Metropolitan Area Transit Authority
Washington
,
DC
Kyle
Kleist
Community
Transportation Coordinator
Center
for Independent Living for
Western Wisconsin
Menomonie
,
WI
David
Knight
Equal
Opportunity Specialist
Office
of Civil Rights
Federal
Transit Administration
Washington
,
DC
Dan
Manning, Litigation Director
Greater
Boston
Legal Services
Boston
,
MA
Maureen
McCloskey
Advocacy
Director
Paralyzed
Veterans of
America
Washington
,
DC
Terry
Moakley
Associate
Executive Director
Communications
and Public Affairs
United
Spinal Association
Jackson
Heights., NY
Dennis
Moore
Senior
Associate General Counsel
Amtrak
Washington
,
DC
David
Nelson, Specialist
Amtrak
Washington
,
DC
Nancy
Pineles, Managing Attorney
Developmental
Disabilities
Maryland
Disability
Law
Center
Baltimore
,
MD
Linda
M. Pybas
Office
of Chief Counsel
Federal
Railroad Administration
Washington
,
DC
Sherry
Repscher
ADA
Compliance Officer
Civil
Rights Department
Utah
Transit Agency
Salt Lake City
,
UT
Joyce
Rose, Professional Staff
Subcommittee
on Highways, Transit and Pipelines
Committee
on Transportation and Infrastructure
Washington
,
DC
Tim
Sheehan, Executive Director
Center
for Independent Living for
Western Wisconsin
Menomonie
,
WI
Rosalyn
Simon, President and CEO
Simon
& Simon Research and Associates
Ellicott City
,
MD
John
Smolenski, Deputy Administrator
Maryland
Transit Administration
Baltimore
,
MD
Dennis
Stombaugh
Transportation
Project Manager
Association
of Programs for Rural Independent Living
Kent
,
OH
Dawn
Sweet
Equal
Opportunity Specialist
Office
of Civil Rights
U.S.
Department of
Transportation
Washington
,
DC
Donna
R. Walton
Equal
Opportunity Specialist
Office
of Civil Rights
Federal
Transit Administration
Washington
,
DC
Jim
Weisman, General Counsel
United
Spinal Association
Jackson
Heights
, NY
Michael
Winter, Director
Office
of Civil Rights
Federal
Transit Administration
Washington
,
DC
Karen
Wolf-Branigin
Training
and Technical Assistance Manager
Project
ACTION
Easter
Seals
Washington
,
DC
Pete
Worthington, Consultant
American
Bus Association
Punta Gorda
,
FL
Disability Community
April 7, 2006
Washington
,
D.C.
Melanie
Brunson, Executive Director
American
Council of the Blind
Washington
,
DC
Judi Chamberlin
Director of Education
and Training
Center for
Psychiatric Rehabilitation
Lawrence
,
MA
Bobby Coward
ADAPT
Washington
,
DC
Daniel Davis
Acting Director of
Advocacy and Public Policy
National Council on
Independent Living
Washington
,
DC
Mark Derry, Attorney
Eastlake
,
Derry
and Associates, LLC Accessibility Solutions
Morgantown
,
WV
Alexandra Finucane,
Vice President Legal and Governmental Affairs
Epilepsy Foundation
Landover
,
MD
Marcie Goldstein
CRS
Midwest
Territory
Cessi Accessible
Solutions
McLean
,
VA
Christine Griffin,
Attorney
Equal Employment
Opportunity
Commission
Washington
,
DC
Gary Gross, Director
Jeanne A. Carpenter
Epilepsy
Legal Defense Fund
Landover
,
MD
Chris Hart
Adaptive Environments
Boston
,
MA
Andy Imparato,
Executive Director
American Association
of People with Disabilities
Washington
,
DC
Kyle Kleist
Community
Transportation Coordinator
Center for
Independent Living for
Western Wisconsin
Menomonee
,
WI
David
Knight
Equal
Opportunity Specialist
Office
of Civil Rights
Federal
Transit Administration
Washington
,
DC
Virginia Knowlton,
Executive Director
Maryland
Disability
Law
Center
Baltimore
,
MD
Maureen McCloskey
Advocacy Director
Paralyzed Veterans of
America
Washington
,
DC
Krista Merritt,
Policy Analyst
American Council of the Blind
Washington
,
DC
Kirsten Poston
Disability Policy
Analyst
U.S.
Department of Transportation
Washington
,
DC
Denise Rozell
Assistant Vice
President
Easter Seals
Washington
,
DC
Tim Sheehan,
Executive Director
Center for
Independent Living for
Western Wisconsin
Menomonie
,
WI
Janna Starr
Director of
Disability Rights and Technology Policy
The Public Policy
Collaboration
Washington
,
DC
Kathleen Walsh
Disability Rights
Program Manager
Equal
Rights
Center
Washington
,
DC
Jim Ward, Executive
Director
ADA
Watch/National Coalition for Disability Rights
Washington
,
DC
Julie Ward
Director of
Employment and Transportation Policy
United Cerebral Palsy
Washington
,
DC
Jim
Weisman, General Counsel
United
Spinal Association
Jackson
Heights
, NY
Employment, Title I
April 18–19, 2006
San Francisco
,
California
Joni
Breves, Executive Director
Computer
Technologies Program
Berkeley
,
CA
Kim
Camacho, Diversity Consultant
Kaiser
Permanente Northern California
Oakland
,
CA
Claudia
Center
, Attorney
Employment
Law
Center
San Francisco
,
CA
Sabrina
Chiu, Staffing Consultant
Pacific
Gas and Electric
Vacaville
,
CA
Cynthia
Cravens
Joblink
Program Coordinator
Jewish
Vocational Services
San Francisco
,
CA
Rebecca
Davis
Human
Resources Services
San Francisco
,
CA
Alexa
Frankenberg
Senior
Community Political Organizer
SEIU
Oakland
,
CA
Steve
Hirschfeld, Attorney
Curiale
Dellaverson Hirschfeld & Kraemer
San Francisco
,
CA
Bill
Hirsh, Executive Director
AIDS
Legal Referral Panel
San Francisco
,
CA
Evelyn
Hunt
Lockheed
Martin
Sunnyvale
,
CA
Philip
La
Barb
era
Senior
Staff Interpreter
Oracle
Diversity
Redwood Shores
,
CA
Tina
Marzell, Job Developer
Toolworks
San Francisco
,
CA
Mark
Neider, Nurse Manager
Wells
Fargo
San Francisco
,
CA
Patricia
O’Sullivan
Global
Disability Program Manager
Agilent
Technologies
Palo Alto
,
CA
Michael
Paravagna
Chief,
Disability Access
California
Department of Rehabilitation
Sacramento
,
CA
Jennifer
Pesek, Staff Attorney
California
Center
for Law and the Deaf
San Leandro
,
CA
Kathi
Pugh, Pro Bono Program Counsel
Morrison
& Foerster
San Francisco
,
CA
Joe
Quinn, Director of Training
Computer
Technologies Program
Berkeley
,
CA
Margie
Rose, Employment Specialist
Deaf
Counseling, Advocacy & Referral Agency / California Employment Development
Department
San Leandro
,
CA
Jeffrey
Sherman
Director
of Human Resources
Exploratorium
San Francisco
,
CA
Francine
Speer
Senior
Staffing Consultant
Pacific
Gas and Electric
Vacaville
,
CA
Anne
Steiner
Business
Advisory and Placement Coordinator
Computer
Technologies Program
Berkeley
,
CA
Mary
Telford, Employment Specialist
Deaf
Counseling, Advocacy & Referral Agency / California Employment Development
Department
Oakland
,
CA
Mary
Topliff, Attorney
Law
Offices of Mary L. Topliff
San Francisco
,
CA
Patricia
Toussaint, Senior Consultant
Affirmative
Action and Equal Employment
Opportunity
and Diversity
Pacific
Gas and Electric
San Francisco
,
CA
Kay
Tyhurst, Director of Employment Services for Deaf and Hard of Hearing
Tri-Cities
One-Stop
Career
Center
Fremont
,
CA
John
Webber
Associate
Information Systems Analyst
State
Compensation Insurance Fund
San Francisco
,
CA
John
Weber, Interagency Coordinator
Improving
Transition Outcomes Project
Support
for Families of Children with Disabilities
San Francisco
,
CA
Kenya
Wiley, Manager
Regulatory
and Judicial Affairs
Society
for Human Resource Management
Alexandria
,
VA
Title III, Large Businesses
May 2–3, 2006
Chicago
,
Illinois
Sarah
Alag, Assistant Coordinator
Services
for Students with Disabilities
Loyola
University
Chicago
,
IL
Christine
Andrews, Director
Health
and Safety Regulatory Affairs
National
Restaurant Association
Washington
,
DC
Ellen
Babbitt, Attorney
Babbitt
and Melton
Chicago
,
IL
Larry
Biondi, Advocacy Coordinator
Progress
Center
for Independent Living
Forest Park
,
IL
Lauren
Blanchard, Assistant Coordinator
Services
for Students with Disabilities
Loyola
University
Chicago
,
IL
Jay
Cardinali, Manager
Global
Operations
Walt
Disney
Parks
and Resorts
Lake Buena Vista
,
FL
Jack
Catlin, Principal
LCM
Architects
Chicago
,
IL
Sally
Conway, Director
ADA
Technical Assistance and
Mediation Programs
U.S.
Department of Justice
Washington
,
DC
Laurie
Dittman, Senior Policy Analyst
Mayor’s
Office for People with Disabilities
Chicago
,
IL
Steven
John Fellman, Attorney
Galland,
Kharasch, Greenberg, Fellman & Swirsky, P.C.
Representing
NATO
Washington
,
DC
Frank
Flanagan, Manager
Human
Resources
St. Joseph
County
Airport
Authority
South
Bend
,
IN
Marc
Freedman, Director
Labor
Law Policy
Immigration
and Employee Benefits
U.S.
Chamber of Commerce
Washington
,
DC
Gerald
Giovannelli
Plant
Operations Manager
St.
Xavier
University
of
Chicago
Chicago
,
IL
Alan
Goldstein, Senior Attorney
PABSS
Project Manager
Equip
for Equality
Chicago
,
IL
Ingrid
Gould
Assistant
Vice President and Associate Provost
University
of
Chicago
Chicago
,
IL
Carolyn
Doppelt Gray, Attorney
Barnes
& Thornburg
Washington
,
DC
Robin
Jones, Executive Director
Great
Lakes
ADA
and Accessible IT Center
Chicago
,
IL
Carl
King, Attorney
Seyfarth
Shaw
Boston
,
MA
Max
Lapertosa, Attorney
Access
Living
Chicago
,
IL
Rene
David Luna
Research
and Policy Analyst
Access
Living
Chicago
,
IL
Karen
J. McCulloh, Director
Disabilityworks
Chicagoland
Chamber of Commerce
Chicago
,
IL
Don
Meckley
Director
of Production and Facilities
Museum
of
Contemporary
Art
Chicago
,
IL
Camille
Olson, Attorney
Seyfarth
Shaw
Chicago
,
IL
Donzell
Robinson, Program Manager
Key
Bridge
Foundation
Washington
,
DC
Jennifer
Schindl, Managing Director Chicagoland Business Leadership Network
Chicagoland
Chamber of Commerce
Chicago
,
IL
William
Schurgin, Attorney
Seyfarth
Shaw
Chicago
,
IL
Sarah Triano
Associate
Director of Programs
Access
Living
Chicago
Chicago
,
IL
Karen
Tamley, Commissioner
Mayor’s
Office for People with Disabilities
City
of
Chicago
Chicago
,
IL
Ken
Walden, Senior Attorney
Civil
Rights Team Leader
Access
Living
Chicago
,
IL
Karen
Ward, Senior Counsel
Equip
for Equality
Chicago
,
IL
Kenya
Wiley, Manager
Regulatory
and Judicial Affairs
Society
for Human Resource Management
Alexandria
,
VA
Tom
Wilson
Public
Awareness and Health Care Team Leader
Access
Living
Chicago
,
IL
Title III, Small Businesses
May 4–5, 2006
Chicago
,
Illinois
Douglas
Anderson, Principal
LCM
Architects
Chicago
,
IL
Todd
Berens
Workplace
Initiatives Manager
Chicagoland
Chamber of Commerce
Chicago
,
IL
Larry
Biondi, Advocacy Coordinator
Progress
Center
for Independent Living
Forest
Park
,
IL
Marca
Bristo, Executive Director
Access
Living
Chicago
,
IL
Joe
Chiappetta, Managing Director
Chicagoland
Business Leadership Network
Chicagoland
Chamber of Commerce
Chicago
,
IL
Diane
Coleman, Executive Director
Progress
Center
for Independent Living
Forest Park
,
IL
Sally
Conway, Director
ADA
Technical Assistance and
Mediation Programs
U.S.
Department of Justice
Washington
,
DC
Teri
Fox
Senior
Vice President Operations
Microtel
Inns and Suites
Atlanta
,
GA
Jo
Holzer
Council
for Disability Rights
Chicago
,
IL
Robin
Jones, Executive Director
Great
Lakes
ADA
and Accessible IT Center
Chicago
,
IL
Harold
Dean Kiewel
Senior
Architecture Specifier
Ellerbe
Becket, Inc.
Minneapolis
,
MN
Sarah
Lawrence, Executive Assistant
Chicagoland
Chamber of Commerce
Chicago
,
IL
Rene
David Luna
Research
and Policy Analyst
Access
Living
Chicago
,
IL
Linda
Mastandrea
Attorney
Chicago
,
IL
Rahnee
Patrick
Youth
and Education Team Leader
Access
Living
Chicago
,
IL
Kelly
Pierce, Disability Specialist
Cook
County
State
’s Attorney’s Office
Chicago
,
IL
Donzell
Robinson, Program Manager
Key
Bridge
Foundation
Washington
,
DC
John
Salmen, President
Universal
Designers and Consultants
Takoma
Park
,
MD
Benny Stephens
Vice
President, Design and Construction
U.S.
Franchise Systems, Inc.
Atlanta
,
GA
Sarah
Triano
Associate
Director of Programs
Access
Living
Chicago
Chicago
,
IL
Karen
Washington
Employment
Readiness Coordinator
Access
Living
Chicago
,
IL
Telecommunications, Title IV
May 8, 2006
Washington
,
D.C.
Brenda
Battat
Associate
Executive Director
Hearing
Loss Association of
America
Bethesda
,
MD
Marilyn
Benoit
Telecommunications
Equipment Distribution Program Administration/
MassRelay
Saugus
,
MA
Anindya
“Bapin” Bhattacharyya
Helen
Keller
National
Center
Sands Point
,
NY
David
Birnbaum
Birnbaum
Interpreting Services
Silver Spring
,
MD
Clayton
Bowen
Virginia
Relay
Richmond
,
VA
Kelby
Brick
National
Association of the Deaf
Silver Spring
,
MD
Thomas
Chandler
Disability
Rights Office
Federal
Communications Commission
Washington
,
DC
Richard
Ellis
MCI/Verizon
Washington
,
DC
Sheri
Farinha
NorCal
Center
on Deafness
North Highlands
,
CA
Cheryl
Heppner
Northern Virginia
Resource Center for Deaf and Hard of Hearing People
Fairfax
,
VA
Gregory
Hlibok
Disability
Rights Office
Federal
Communications Commission
Washington
,
DC
Pamela
Holmes
Ultratec,
Inc.
Madison
,
WI
Jay
Keithley
Consumer
and Governmental Affairs Bureau
Federal
Communications Commission
Washington
,
DC
Brenda
Kelly-Frey
Maryland
Relay
Baltimore
,
MD
Robert
Lichtenberg
Washington
Relay
Olympia
,
WA
Paul
Ludwick
Sprint
Nextel
Overland Park
,
KS
Mike
Maddix
Sorenson
Communications
Salt Lake City
,
UT
Ron
Obray
Hands
On VRS
Rocklin
,
CA
Richard
Ray
National
Emergency Number Association
Arlington
,
VA
Bill
Schwall
Communication
Access
Center
Flint
,
MI
Mark
Seeger
Communication
Service for the Deaf
Sioux Falls
,
SD
Bob
Segalman
Founder
of Speech to Speech Relay
Sacramento
,
CA
Mark
Stern
Go
America
– i711
Hackensack
,
NJ
Claude
Stout
Telecommunications
for the Deaf and Hard of Hearing, Inc.
Silver Spring
,
MD
Jim
Tobias
Inclusive
Technologies
Matawan
,
NJ
Judy
Viera
Mission
Consulting
Sacramento
,
CA
Dixie
Ziegler
Hamilton
Relay
Aurora
,
NE
Judy
Harkins
Gallaudet
University
Technology
Access Program
Washington
,
DC
Employment, Title I
May 16–17, 2006
Houston
,
Texas
Kara
Wilson Anglin
Wilson
Ranches
Houston
,
TX
Robbie
Arrington, Project Coordinator
Career
& Recovery Resources, Inc.
Houston
,
TX
Jacquie
Brennan
Disability
Law Resource Project
Houston
,
TX
Latasha
Brown
Endeavors
and Excellence, Inc.
Houston
,
TX
Surola
Brown
Endeavors
and Excellence, Inc.
Houston
,
TX
Linda
Caruso
Life
Academy
The
Monarch
School
Houston
,
TX
Diego
Demaya, Attorney
Disability
Law Resource Project
Houston
,
TX
Ulonda
Forney
EEOC
Houston
,
TX
Keith
Fulp, Program Manager
Goodwill
Industries
Austin
,
TX
Joseph
Galagaza, Attorney
Seyfarth
Shaw LLP
Houston
,
TX
Dolores
Gonzalez
ADA
Office
City
of
Austin
Austin
,
TX
Cheryl
Guido
Regional
Program Specialist
Department
of Assistive and Rehabilitative Services
Houston
,
TX
Nada
Hernandez
Endeavors
and Excellence, Inc.
Houston
,
TX
Katherine
Jager, Field Instructor
EEOC
Houston
,
TX
Kristen
Jones
National
Youth Leadership Network
Houston
,
TX
Mitchell
Katine, Attorney
Williams,
Birnberg & Andersen L.L.P.
Houston
,
TX
Edward
Looby, Member
Texas
Governor’s Committee on People with Disabilities
Alvin
,
TX
Stacy
Martin, Senior Coordinator
Barb
ara Jordan Ambassadors Program
Endeavors
and Excellence, Inc.
Houston
,
TX
Kathy
Overdiep, Advocate
Advocacy,
Inc. in
Houston
Houston
,
TX
Dinesh
Pejaver
Career
and Recovery Resources, Inc.
Houston
,
TX
Tony
Robertson, ADR Manager
Training
and Monitoring
Texas
Workforce Commission
Austin
,
TX
Matt
Russell,
ADA
Coordinator
City
of
Houston
Houston
,
TX
Mike
Schepperly
Operations
Director for Programs
Department
of Assistive and Rehabilitative Services
Houston
,
TX
Thelma
Scott, CEO
Endeavors
and Excellence, Inc.
Houston
,
TX
Aaron
Smith
Endeavors
and Excellence, Inc.
Houston
,
TX
Vernus
Swisher, CEO
Career
& Recovery Resources, Inc.
Houston
,
TX
Raul
Tello, Area Manager
Division
of Rehabilitative Services
Pasadena
,
TX
Denise
Torres, Placement Specialist
Goodwill
Industries
Austin
,
TX
Lane
Transou
Compensation
and Benefits Consultant
HR
Houston
Houston
,
TX
Kenya
Wiley
Manager,
Regulatory and Judicial Affairs
Society
of Human Resource Managers
Alexandria
,
VA
Tanya
Winters
City
of
Austin
Austin
,
TX
Appendix
C – Attorneys Interviewed for Part 2 – Legal and Enforcement Tools
Brian East, Advocacy, Inc.
Lainey Feingold, Law Office of Elaine B. Feingold
Christina Galinda-Walsh, NDRN
Gregory F. Hurley, Greenberg Traurig, LLP
Larry Paradis, Disability Rights Advocates
Amy Robertson, Fox & Robertson
Kenneth Shiotani, NDRN
Robert Shumaker, Dewitt Ross & Stevens
Jennifer Steneberg, The Frankovich Group
Gene Zweben, Schwartz Zweben & Associates
Appendix
D – Judicial Stakeholder Focus Group Methodology
Background
According to a procedure developed
with the National Judicial College (NJC), a package of information introducing
the Disability Rights Education and Defense Fund (DREDF), the National Council
on Disability (NCD), the ADA Implementation Study, the idea behind the focus
group, and the project team members running the focus group was placed among
materials given to judges attending courses at NJC November 14–17, 2005, and
March 27–30, 2006. Judges could volunteer to attend the focus group by
indicating their interest on a sign-up sheet and by handing in a Consent Form
when attending the focus group. Materials given to the judges simply referred
to our desire to gain insight into the judiciary’s views and attitudes about
disability rights claims and laws—the project team wanted to avoid the
impression that state judge participants needed expertise in the
ADA
to attend or participate meaningfully in the focus group discussion.
While a majority of the disability
rights lawsuits brought in state court do not directly involve the
ADA
,
many states have laws concerning disability discrimination in employment, state
services, public accommodations, and housing that raise similar issues. Both
national and state lawmakers have envisioned private enforcement in the courts
as an important mechanism for the implementation of disability rights laws.
Consequently, the knowledge, understanding, and viewpoints held by state judges
concerning disability rights claims are important sources of information about
how the judiciary sees the role and place of disability rights law among civil
rights protections generally.
The focus group sessions consisted
of an informal 90-minute discussion facilitated by one project team member
while the other team member primarily took notes. Participants were assured
that their responses would be kept confidential and only reported anonymously
or in the aggregate. The judges were free to speak directly to one another and
to elaborate on issues that were raised by other participants. The sessions
were not taped, as this was not allowed under NJC policies on confidentiality,
but contemporaneous notes were taken, and the project team facilitators’
impressions were discussed and recorded soon after the session.
DREDF made a number of attempts
throughout 2006 to conduct similar focus groups among the federal judiciary.
Specifically, DREDF contacted the Federal Judicial Center in Washington, DC;
the Federal Magistrate Judges’ Association; and the National Association of
Women Judges, which includes appellate, trial, tribal, and administrative law
members from all 50 states as well as federal judges. Unfortunately, while each
organization expressed interest in and support for the subject, there was a
persistent concern that members of the federal judiciary would find it
inappropriate to participate in a frank discussion of such policy-related
matters as the effectiveness of the private enforcement of federal disability
rights. One organization expressed concern about helping us recruit retired
federal judges, as such a solicitation could be perceived as an endorsement of
the NCD project and its potential for influencing policymakers. Ultimately, no
federal judicial focus groups were conducted given the federal judiciary’s
reluctance to provide input to policymakers through such a forum.
Development of Questions
The questions used in the focus
group were developed by project team members Linda D. Kilb, DREDF director,
Legal Trust Fund Programs; Mary Lou Breslin, senior policy advisor; and Silvia
Yee, staff attorney. The focus group was facilitated by Kilb, who has undergone
training in the ethics and dynamics of running focus groups, and Yee. The
questions were designed to solicit the judges’ general level of knowledge and
perception of disability rights laws, as well as responses on such specific
litigation concerns as class settlement enforcement and monitoring, and
plaintiffs who bring multiple access cases.
The planned areas of
questioning encompassed the following:
·
Participant self-introduction consisting of
name, type of bench, and areas and years of experience both in practice and on
the bench.
·
Case management and general bench procedures.
·
How participates typically familiarized
themselves when confronted with new legal issues on the bench.
·
Substantive knowledge of and experience with
disability rights cases.
·
Knowledge of and involvement in disability
rights case resolutions and settlements.
·
Views on private enforcement of disability
rights cases.
·
Participants’ own needs and interests concerning
disability rights laws and any suggestions for disability rights’ policy and
lawmakers.
Over the course of the focus group,
the conversation among the participants became quite animated and free, as
participants increasingly shared their own perceptions and responded to the
comments made by others. For the purposes of the discussion below, participant
responses have been organized into the framework of the questions, although the
discussions did not necessarily adhere to a simple linear order. For example,
when the judges were asked to introduce themselves in one focus group, one of
the first responses included a reference to the accessibility features in his
courtroom. All the subsequent responses included references to accessibility
features and a few unsolicited remarks about the
ADA
and
the kind of reasonable accommodations that it required of courts and other
entities, although no one brought up any specific
ADA
case
[256]
or section of the law. For the purposes of building trust and encouraging a
thoughtful and frank discussion, the participants were not constrained to
answer relevant topics in strict order.
Appendix
E – Public Awareness Research Methods and Findings
This appendix provides detailed
background information about the research methods and findings that were used
in the development of the Easy Access prototype public information campaign,
including the formative evaluation research that led to targeting the campaign
at small business owners. In addition, important concepts from social marketing
are reviewed in the context of the Easy Access campaign. These concepts
including branding; guerilla marketing; laser targeting; media-audience mix;
emerging digital communication technology; global marketing; and the Three E’s
of education, engineering, and enforcement. This appendix also provides a
situation analysis, which converts the findings of the formative evaluation
into an action-directed agenda for campaign planning.
NCD’s recent efforts to pinpoint
ADA
implementation challenges and gaps identified the critical and unmet need to
increase general public awareness about the
ADA
.
The prevalence of negative
ADA
media stories and continued
misperceptions about people with disabilities that pervade print, television,
Internet, and other media underscored the importance of asserting a new message
that portrays the
ADA
and people
with disabilities in a different light. Identifying creative, proactive methods
to achieve this goal became a central theme of NCD’s current initiative and a
specific task assigned to the ADA Implementation Study team.
The challenges to
ADA
implementation come from multiple sources and cannot be solved by a simplistic,
one-size-fits-all approach. Effectively addressing them calls for a
multipronged approach, an important element of which can be a public
information campaign designed to address challenges to ADA implementation that
arise from a lack of public awareness or from incomplete or inaccurate
information. For example, if the challenge is that misconceptions exist about
who is covered by the ADA, the most effective approach may be to develop a
campaign that addresses these misconceptions head-on and presents information
that counteracts and corrects them. In another example, if businesses have
fears about the expense of providing public access, these fears might be
alleviated by communicating the information that many accommodations are not
expensive and that making them can attract more customers to the business.
A public information campaign will
not by itself address all challenges or solve all problems related to
ADA
implementation. To be most effective, such a campaign would be one of a
comprehensive set of strategies, including providing incentives for compliance
(for example, expedited business licenses for businesses that demonstrate
compliance with the
ADA
) or increasing enforcement of the
requirements of the
ADA
.
Formative Research Activities
To assess current
ADA
public awareness activities and inform the development of a public awareness
campaign, the following three formative research activities took place:
·
An assessment of the state of the art in public information
campaigns, which provided not only the most up-to-date thinking about how to
reach a target population with a well-designed message but also a framework for
analyzing the current state of ADA awareness and guiding the development of the
prototype.
·
A situation analysis; that is, an analysis of
existing awareness of the
ADA
and of the
ADA
information environment, based on the following sources:
o
The stakeholder
dialogues (see Part 1), in which members of key stakeholder groups discussed
their awareness and knowledge of the
ADA
, and recommended messages and message strategies to encourage
ADA
implementation.
o
Focus groups with
small business stakeholders to determine what they know about the
ADA
and what communication
strategies they could suggest that would foster more effective implementation
of the
ADA
.
o
Other ADA-related
information in the existing information environment.
·
An assessment of publicly funded information
campaigns on the
ADA
that have been
conducted by government agencies and other entities, to identify effective
strategies and considerations for developing a successful public information
campaign.
Following the formative evaluation,
an additional focus group was conducted with small business owners to determine
their reactions to a variety of proposed messages and logos. The results of
that group were incorporated into the final communication products that were
developed for the prototype.
State of the Art in Public Information Campaigns
Campaign Goals
Fundamental to any public information
campaign is an overall goal or goals that identify the end state or condition
that the campaign is designed to accomplish. Perhaps the best metaphor is to
consider the difference between a flashlight and a laser beam. Ineffective
public information campaigns are like flashlights, seeking to illuminate the
so-called “general public” across a wide range of issues. The net effect is no
effect, much like shining a flashlight at the moon. This is especially the case
with prosocial or cause-based public information campaigns with small budgets
and large mandates to “change the world.” Because resources are limited,
effective prosocial public information campaigns must be constructed like a
laser beam: Highly focused illumination is targeted at narrowly defined and
homogeneous target populations with carefully crafted message strategies
designed to resonate with that population.
Defining Target Populations
Defining target populations
involves identifying specific segments of the public that will be the targets
of the public information campaign. Campaigns are most effective if they speak
directly to the interests of a clearly defined population and use messages that
are tailored to the existing knowledge, attitudes, and behaviors of that
population. Campaigns that are not targeted must take into account large
differences in what people know, how they feel, and the way they behave; such
campaigns often lack focus and clarity. When a public information campaign
tries to speak to everyone at once, it is not likely that it will communicate
effectively with anyone.
[257]
While the messages of a targeted campaign can be relevant for people outside
the target group, the messages must be tailored for specific audiences, rather
than assuming that a single message will work for everyone.
Setting Objectives
In commercial marketing campaigns,
the practitioners set very specific measurable outcomes for their campaigns. In
many prosocial public information campaigns, efforts are sometimes less than
effective because no clear outcomes are specified in advance, and the campaign
becomes an end in itself rather than a means to an end.
[258]
Such campaigns are regarded by the sponsoring organization as “successful”
simply because they were implemented, not because they achieved a worthwhile
objective. A state-of-the-art public information campaign, on the other hand,
seeks to accomplish its overall goals through measurable objectives for each
target population.
Defining Messages
Intuitively, a public information
campaign starts with defining messages that communicate information deemed
important by the organization sponsoring the campaign. However, effective
message definition also requires a thorough understanding of the current
awareness, knowledge, attitudes, behavioral predispositions, and behaviors of
populations that are the focus of the campaign. A large body of research in
marketing and public relations has shown that messages are most effective when
they speak clearly to a homogeneous audience.
[259]
For example, although large transnational corporations and small mom-and-pop
enterprises are both “businesses,” they vary considerably with regard to such
issues as financial resources, scope of operations, and personnel. Messages
that resonate with decision makers in transnational corporations will probably
not resonate with small business owners.
Branding
Branding is a concept borrowed from
consumer marketing, where many products that differ little or not at all from
each other compete for customers. Branding strategies seek to establish
memorable connections between a particular brand and things that consumers
value.
[260]
For example, an automobile manufacturer may use various branding techniques to
link a particular brand (e.g.,
Toyota
)
with the concept of reliability. Branding is relevant for a prosocial public
information campaign because, in the cluttered, saturated information
environment of the typical American, messages must be memorable, even iconic,
and message strategies must be innovative.
[261]
No prosocial public information campaign will ever have the spending power of
Madison Avenue and its multibillion-dollar clientele, and they cannot depend
solely on repetition and media saturation to cut through the clutter.
[262]
Media-Audience Mix
In the context of a prosocial
public information campaign, many of the best media buys (e.g., daily full page
ad in the Wall Street Journal for six
months) are not financially feasible. Therefore, prosocial public information
campaigns must resort to smart media buys instead of expensive ones and must
invent unique, memorable vehicles to deliver their messages to the appropriate
target populations.
Emerging Communication Technologies
Emerging technologies may provide
useful channels of dissemination when prosocial public information campaigns
cannot compete head-to-head in the cluttered mainstream communication
environment with multimillion dollar campaigns. The Internet, perhaps the most
transformative medium since television,
[263]
can level the playing field. It can provide the platform for distributing
messages through e-mail, listservs, and the massive searchable library of
publicly available documents, and can serve as the “superhighway” for corollary
technologies such as podcasting, which uses the Internet to transmit audio or
video files (multimedia) for downloading to personal computers or mobile
devices such as iPods.
[264]
(Another term coming into use is “vodcasting,” for the use of the Internet to
transmit video content.)
If the campaign is disseminating
messages via the Internet and related technologies, it must motivate members of
the target population to seek the information and must make it easy for them to
access. Both accessibility and usability must be considered.
[265]
In addition, while the Internet provides a powerful device for storage and
retrieval of information on a global, instantaneous basis, the sheer volume of
information makes cross-channel promotion—the use of one medium to direct the
target populations’ attention to another—essential. This kind of promotion is
widely practiced in commercial marketing campaigns, where the URL for the
company Web site is prominently displayed in print advertising, billboards,
direct marketing pieces, and promotional merchandise (e.g., the ubiquitous
refrigerator magnet). For less sophisticated users, the Web site can provide
materials that are easily accessed online or downloaded for offline use. When
using the World Wide Web as the repository of information in a public
information campaign, cross-channel promotion is essential to the overall
success of the campaign.
Timing
The successful execution of a
public information campaign depends on the sequencing and timing of key program
components. Sequencing and timing should be regarded as a work in progress, as
unexpected factors can dictate a change in plans. The following sequence is
organized around large conceptual issues: (1) formative evaluation and design;
(2) planning, including development of message strategies for each target
population and selection of appropriate media to deliver those messages; (3)
implementation; and (4) evaluation.
Globalization
Paradoxically, as emerging
communication technologies can more easily reach larger, more global audiences,
the need to target and segment messages becomes all the more critical. In the
United
States
, the population is becoming more
heterogeneous, and care must be taken when developing messages for audiences
with regard to language, culture, socioeconomic status, ethnicity, and
disabilities. Careful formative evaluation allows campaign planners and
executers to bridge the gaps between various diverse audiences that may have
little in common with each other, or with those conducting the campaign.
Guerilla Marketing
From the outset, the prototype
campaign followed a “guerilla marketing” approach to bringing about social
change, using unconventional marketing tools and strategies to maximize results
with minimal resources. The Internet and the array of available digital
technology create great opportunities for guerilla marketing. This approach is
ideal for advocates seeking to bring about positive social change with limited
budget resources. The prototype campaign, when implemented, will do more with
less by being smart about how resources are used.
Laser Targeting of Audiences
Related to guerilla marketing,
laser targeting means transmitting campaign messages to narrowly defined
audiences that share many common characteristics (for example, small business
owners). This concept is best illustrated using the previously mentioned
metaphor of the difference between a flashlight and a laser beam. A campaign on
ADA
implementation must know precisely who the target is,
what barriers must be overcome to implement the
ADA
,
and whether audience issues have to do with knowledge, motivation, or behavior.
Promoting Behavioral Change Using the Three E’s
One requirement of laser targeting
is a clear understanding of the target audience. Although compliance with the
ADA
is the overarching goal of the prototype campaign, this behavioral change is
most likely to occur when education, engineering, and enforcement work
together. No public information campaign, by itself, can persuade small
business owners to comply voluntarily with the
ADA
and make their businesses accessible to people with all kinds of disabilities.
The example of seat
belts shows the importance of the Three E’s. To promote behavior change—that
is, to get people to use seat belts—the Three E’s were addressed in the
following ways:
·
Education has involved many public information
campaigns, over decades, telling people to “Buckle Up for Safety.”
·
Engineering—such as seat belt warning lights and
alarms—made it difficult for automobile riders not to buckle their seat belts.
·
Enforcement reinforced education and engineering
by making it a motor vehicle violation to drive or ride without your seat belt
fastened. The education message became “Click It or Ticket.”
All three elements are important.
To effect significant changes in behavior, an education strategy such as a
public information campaign must be combined with engineering and enforcement.
Situation Analysis
The situation analysis
conducted for planning a prototype
ADA
public information
campaign focused on understanding the external environment that exists with the
publics or audiences for messages related to implementation of the
ADA
.
In conducting this analysis, information was obtained from a variety of data
sources to identify major issues related to the following:
·
public
awareness of the
ADA
(both
knowledge and perceptions);
·
knowledge/information gaps;
·
communication media used for the
ADA
and other topics;
·
information-related implementation challenges;
·
differences in perspectives across stakeholder
groups; and
·
stakeholder
suggestions for communication media and messages.
Data sources for the situation
analysis include stakeholder dialogues, focus groups held with small
businesses, and a review of other research on the communication environment for
messages about
ADA
implementation.
Findings from these sources are summarized in Figures 1 and 2.
Stakeholder Dialogues
Stakeholders addressed these public awareness and public relations
topics: Sources of Information, Gaps in Awareness, and Key Message Concepts.
Participants were asked to discuss the
following questions:
·
What sources of information on the
ADA
do you and your colleagues use?
·
What gaps in awareness and knowledge of the
ADA
exist among people who hold positions similar to yours?
·
What sources do you use to find information
about other topics related to your business?
·
Ideally, where would you go for information
about the
ADA
?
·
What are the key messages that would be most
effective in capturing the attention of your target group?
·
What are the key messages that would most
effectively increase
ADA
awareness
among your peers? Think of yourself as developing a billboard or television
commercial targeted at people in jobs like yours. What would the headline be?
Awareness of the
ADA
Most of the stakeholders are
generally familiar with the
ADA
,
and most have a basic grasp of what it requires, but the specific knowledge
they have depends on who they are. Large private businesses and government
agencies, for example, tend to have internal resources that provide them with
considerable and detailed knowledge about the
ADA
’s
access and employment requirements, while small business representatives are
likely to be knowledgeable about the existence of the law but quite unsure
about the details of how to implement it. People with disabilities also varied
widely in their understanding of the specifics of the law.
ADA
Knowledge Gaps
Significant differences
among stakeholder groups are key to identifying gaps in knowledge of the
ADA
.
People with disabilities are not necessarily familiar with the
ADA
.
For example, there is a lack of information on the part of people with mental
illness or substance abuse as to whether the
ADA
applies to them. Other knowledge gaps include these:
·
Businesses of all sizes feel that they have
insufficient information to help them achieve compliance, but smaller
businesses feel this lack much more strongly than larger businesses.
·
Small businesses are especially likely to have
many misconceptions about the ADA, such as the notion that small businesses,
because of their size, are not required to follow public access or employment
requirements of the ADA, or that they are somehow “grandfathered” and thus do
not need to comply with the ADA.
·
A number of participants in all the stakeholder
dialogues indicated that, although a lot of information is available, it is not
detailed enough for their needs. Small businesses in particular expressed a
need for detailed, customized material, although they agreed that it would be
difficult to provide the information they needed except through very targeted
sources.
For more detail on specific
knowledge gaps, see Figure 1.
Sources of Information About the
ADA
Stakeholders identified
communication media and other information sources they used to learn about the
ADA
and get information in general. Numerous information sources were identified,
including: peers and personal communications (most frequently mentioned);
government Web sites; other online services (search engines, online news,
blogs, Google alerts, etc.); newspapers and magazines; and, especially in rural
areas, public libraries, which also offer computer access.
Businesses reported
that they use the following information sources in particular:
·
Networking, peer-to-peer communications
·
Trade associations; for example, the Society for
Human Resource Management (SHRM)
·
Trade publications, magazines, newspapers
·
Internal company sources (HR department general
counsels/attorneys)
·
Industry-specific newsletters (online, e-mail,
and print)
·
Employer workshops and trainings
·
Department of Justice (DOJ),
ADA
Accessibility Guidelines (ADAAG)
·
Organizations such as the Job Accommodation
Network (JAN) and the Disability and
Business
Technical
Assistance
Centers
(DBTACs) (for questions
about resources, where to find tools and equipment, etc.)
·
Community identification of problems and issues
Recommended Communication
Channels for the
ADA
Primary communication channels that
participants in the stakeholder dialogues recommended using for the ADA were
quite varied, which is not surprising, given that the primary information
channel for information about ADA implementation depends on what information
needs to be communicated, what the specific message is, and to whom it is
directed. However, there was general agreement that personal communication is
generally more effective than mass media or print material. Most of the
stakeholders said they relied heavily on interpersonal, peer-to-peer contacts
and networks: “It’s important to have resources to draw from, but you need to
look for people.”
The discussions of
recommended communication channels for messages about implementation of the
ADA
usually led to discussions of overall communication strategies that did not
rely on a single medium or channel. Across all the stakeholder dialogues,
recommendations of communication strategies for the general population included
these:
·
National media campaign in partnership with a
celebrity spokesperson (Robert David Hall, Michael J. Fox, John Hockenberry, BD
character in Doonesbury, etc.)
·
Media recognition of best practices; promotion
of companies that do the right thing
·
Product advertising (store mannequins, catalogs,
etc.) using models with disabilities
·
Partnerships (e.g., with disabled veterans
organizations)
·
Partnerships with private sector (e.g., Verizon
and SBC have approached the disability community to see how they can work
together)
·
Extreme home makeover TV show for universal
access
·
Public service signage similar to “This highway
brought to you by the
ADA
”
·
Public service announcement at the beginning of
a video or DVD
·
Seal of approval decal similar to that used by
AAA; decals that say, “We welcome service animals”
In particular, participants
recommended using emerging technologies, including the following:
·
Cell phone ads
·
Podcasts
·
Internet ads
·
Standard symbols for online maps that indicate
which of the nearby businesses on the map are accessible (in partnership with
Web sites that provide maps and directions, such as MapQuest and Yahoo)
·
Mobile GPS systems. Some companies advertise on
the GPS systems in cars (such as OnStar) so that when you are getting
directions, they tell you about nearby businesses. It might be possible to
include information on nearby businesses that indicates whether or not they are
accessible.
Business participants
suggested a number of business- and industry-related communication channels,
including these:
·
Business networks
·
Trade publications, articles in trade magazines
·
Trade groups, including some not commonly
thought of (e.g., Stadium Managers Association, International Association for
Assembly Managers)
·
Professional associations, student associations
(the California Bar Association requires that lawyers take a continuing
education course on bias)
·
Business associations (local, not
industry-specific)
A number of suggestions
emerged for “specialty” strategies or informational materials that target
specific subpopulations, such as these:
·
Magazine articles aimed at teens and youth
·
Wedding magazines
·
“The
Golden Rules for PWDs” video and other videos—send them out to HR offices and
HR conventions; make them available on the Web so they can be downloaded
·
An easy-to-read book on universal design
principles that nonarchitects could understand and follow
·
Fact sheet on how to hire an architect
·
Boilerplate language for leases, contracts, and
so on (as part of a toolkit for businesses)
·
Emergency planning materials
·
Teacher training
·
National
disability curriculum for use in general education
Focus Groups with Business Owners
In an effort to obtain additional
information on stakeholder awareness of the
ADA
—and to
assess the appeal and effectiveness of messages developed for previous
information campaigns—two stakeholder dialogue groups (focus groups) were held
with local business owners in
Hilo
,
Hawaii
.
Participants in these groups were small business owners as defined under the
requirements of the Title III Public Accommodations section of the
ADA
.
This focus group research was essential
to the strategic planning of the Easy Access prototype campaign. Public
information campaigns are most effective if they use messages tailored to the
existing knowledge, motivations, and behaviors of a specific target population.
Campaigns that lack a clear target audience must take into account large
differences in what people know, how they feel, and how they behave; such
campaigns often lack focus and clarity. When a public information campaign
tries to speak to everyone at once, it is not likely that it will communicate
effectively to anyone.
The stated purpose of
these focus groups was to obtain input on (1) what stakeholders know—and do not
know—about the ADA; (2) how business owners get information about the ADA and
related topics; and (3) stakeholder reactions to messages about the
ADA
.
A Topic Guide was designed to guide the discussion and probe for participants’
opinions regarding videos, print materials, and slogans intended to improve
awareness and understanding of the
ADA
.
Focus group participants discussed questions that included these:
·
How knowledgeable do you think you are about the
ADA
?
·
Where would you go to look for more information
about the
ADA
?
·
What is the hardest thing about understanding or
implementing the
ADA
?
·
For each information piece reviewed:
o
What seemed to be the main message of this
piece?
o
What did you like about this? Why?
o
What did you not like about this? Why?
o
Which methods of disseminating this would best
reach the community of small business owners/operators?
·
For each slogan reviewed:
o
Which of these gets across the most important
message?
o
What do you like about this slogan? Why?
o
What don’t you like about this slogan? Why?
Knowledge of the
ADA
All the small businesspeople in the
focus groups were familiar with the
ADA
to some extent,
citing knowledge of the recent refitting of a school to comply with the
ADA
(with the addition of ramps and repainting of yellow zones) and the need to
modify a downtown business doorway that was not wide enough. A construction
company owner had experience with building plans that included wheelchair
access, and other participants reported having learned about the ADA through
their work situations (as a teacher or pharmacy worker) or personal experiences
(in the community technology center, for example).
Sources of Information about
the
ADA
Focus group participants used a
variety of sources for information about the ADA, especially downtown
associations, Rotary and other service clubs, chambers of commerce, newsletters
from industry associations, and local small business associations (although one
person felt that a local 500-member small business organization was not as
informative about the
ADA
as it
could be). Several reported relying on contractors and architects with whom
they worked for information about the requirements of the
ADA
.
Other information sources cited were online sources, the county information
phone line, and Federal Government listings in the phone book.
ADA
Knowledge Gaps
Participants reported difficulties
with understanding or implementing the
ADA
owing to a lack of information about “how it is enforced” or a lack of clarity
about the law’s requirements (who is required to comply, what happens if there
is a change of ownership of the business, etc.). One person reported being confused
by seeing “lots of empty handicapped parking stalls.” Several said they simply
didn’t know where to get information.
Reaction to Messages about the
ADA
The focus groups also provided the
opportunity to test information materials about the
ADA
from previous campaigns by the Department of Justice (DOJ) and get participants’
reactions to the different types of media, messages, and slogans. Participants’
reactions included the following:
Myths and Facts
Participants were given
a few minutes to look over a 1½-page excerpt from DOJ’s Myths and Facts. The message of this printed piece was understood
by participants as follows:
·
The
ADA
is intended to benefit people with disabilities rather than punish businesses.
·
The
ADA
is willing to work with business owners.
·
The
ADA
is common sense. If you own a business, make it open to everyone.
·
The
ADA
is easy to comply with and is “not the big bad wolf.”
·
“There are not a lot of teeth in the
ADA
.”
What they liked about the piece was
that it “cleared up misconceptions” and dispelled common myths in plain
language and with a sense of humor. They disliked that it seemed wordy and
would be difficult for English language learners to read (although one person
thought it was “easy to skim”). They suggested revising the format of the piece
to include bold headings and color, to make it more “flashy.” They thought it
would be a good piece for a business association to distribute. Other
suggestions were to promote it on the radio, as a news report, or to include it
on a Web site.
Ten Small Business Mistakes
Participants viewed
segments from this DOJ video and reported the following as the messages they
understood or took away from the piece:
·
It is not “overbearing” to comply with the
ADA
.
·
Tax incentives are available.
·
You could miss out on a lot of business if you
don’t comply.
What they liked about the piece was
that it was visually stimulating, informative, and used plain language. They
also liked that it included images of real people with disabilities struggling
with barriers: “That could be me.” They disliked the headshots of people
talking, and thought it went on a little too long. They suggested using the
video to do a workshop about the
ADA
.
ADA
Accessibility Checklist
Participants were asked to look
quickly at this piece, and were asked questions without being allowed time for
reading it. What they liked about the piece was the amount of detail on
specific measures that could be taken to achieve
ADA
accessibility. They also liked that it said right up front that checking off the
items on the checklist was “not the be-all and end-all.” They disliked how long
it was (“Divide it into sections”) and thought that some of the language (e.g.,
“stable”) was vague. They thought it could be disseminated by having a local
business association give it to all members and to new members as they join.
Small Business Guide
Participants were asked to look
quickly at this piece, and were asked questions without being allowed time for
reading it. They liked that they were shown ideas for building design; for
example, pictures of what different entrances look like and what would/wouldn’t
work. They disliked that it was too long and too much to read.
Slogans
The facilitator explained that a slogan can be a useful public
relations tool, giving the example of “Click it or ticket” (the seat belt
campaign, with which all participants were familiar). Participants looked at
several slogans from past
ADA
information campaigns and discussed what they liked and disliked about each.
They noted that none of the slogans included a direct reference to
ADA
,
which they considered to be a negative. Other opinions about the slogans
reviewed included these:
·
“Enable
the Disabled”: Some participants felt this could be seen as insulting,
and one thought that the word “enable” was not right because it suggested the
negative connotations of “enabling.”
·
“Accessibility
is an open door for everyone”: This was considered to be inoffensive,
but too long and “not too catchy.” An alternative might be “Open door for
everyone,” or the local slogan, “The ADA—We all need it.”
·
“Bridging
the Gap Leaves No One Behind”: Both “bridging the gap” and “leaves no
one behind” are clichés, and the latter reminded people of “No Child Left
Behind,” which has a negative connotation, especially for teachers.
·
“Open
Doors Open Lives”: This reminded some participants of preschool literacy
programs. Suggested alternatives to improve the syntax were “Opening Doors Will
Open Lives” or “Opening Doors Opens Lives.”
·
“Accessibility
– It’s Just Good Business”: This was considered straightforward, simple,
and familiar, although somewhat clichéd. One person suggested substituting, “It’s
Just Good Sense”; another, who liked the phrase, “It’s Just Good Business”
suggested adding “Cents” to that phrase.
Other ADA-related Information
The participants took a brief look at strategies and materials
from other countries regarding disability rights, to see if any were relevant
to developing the prototype for the
ADA
public information campaign. These included—
·
OUCH
Web site. The Web site (www.bbc.co.uk/ouch/) is
sponsored by the British Broadcasting Corporation (BBC) for people with
disabilities; it contains multiple opportunities for sharing information,
including podcasts, a monthly online talk show, a blog, a message board, an
e-newsletter, and downloadable articles and other documents.
·
The
Gateway Web site. Gateway is the Web site (www.gateway-uk.org) of a group in the
UK
that is working to give people with visual disabilities better access to
library and information services. Intended to serve as a one-stop resource, the
Web site provides information on all accessible library services available and
how they can be accessed, as well as information from libraries on how they
have improved their services to meet the needs of people with visual
disabilities. Gateway has a helpdesk, reachable by phone or e-mail, that serves
as a single contact point for library staff and people with visual disabilities.
·
The Disability Debate. The Disability Rights
Commission (DRC) is an independent statutory body in the
United
Kingdom
that is responsible for tackling
disability discrimination. To “put disability equality at the heart of public
policy” and to create a new agenda for government and the community, the DRC
sponsors the Disability Debate on a dedicated Web site (www.disabilitydebate.org),
The debate encourages public input, online polls, forums, and other public
discourse on the need for disability equality and on the DRC’s 10 priorities
for change. On January 30, 2006, the DRC launched a £1.2M national poster,
press, radio, and online campaign: “Are We Taking the Dis?” The campaign aimed
to show how society’s “low expectations culture” condemns many people with
disabilities or long-term health conditions to poverty, unfair treatment, and
marginalization.
Conclusions
The following
conclusions are based on focus groups that evaluated the knowledge, motivational,
and behavioral issues related to
ADA
implementation among small business owners. These research findings are
supplemented by a review of previous efforts to seek compliance with the
ADA
.
·
Most small business owners are aware of the
ADA
,
but few have an in-depth understanding of how to comply with it, and few know
where to go for step-by-step help to make their businesses more accessible.
·
Some businesses are unaware that the law applies
to them.
·
Few are aware of the business opportunities that
compliance provides.
·
Fear of compliance expenses and government
litigation probably result from insufficient or incorrect knowledge.
·
Detailed knowledge of how to comply is not
enough; you need to be motivated as well.
·
Many small business owners may lack motivation
to seek more detailed information on the
ADA
.
·
Past efforts (e.g., in
San Francisco
and
Chicago
) to bring about change in
ADA
compliance behavior were not successful, perhaps because they focused on
education without the benefit of engineering and enforcement, or because they
didn’t adequately sell the smart business and easy access messages. Or perhaps
the messages were not sold from a variety of different perspectives. The
prototype involves different types of players delivering the messages in
different voices, including the voices of small business owners themselves.
·
The sheer number of
U.S.
businesses makes forced compliance difficult.
·
The law itself insists on persuasion and
negotiation before litigation.
Assessment of Previous
ADA
Public Information Campaigns: Implications for a Prototype Campaign
The third formative research
activity was to review strategies government agencies and other entities have
used in the past to educate the public about the ADA, in order to identify
effective approaches and potential pitfalls in developing a public information
campaign for improving the implementation of the ADA. Figures 3 and 4 summarize
the strategies analyzed and assess their strengths and weaknesses. The
examination included specific materials used to educate the public about the
ADA
;
descriptions and assessments of these materials are presented in Figures 5 and
6.
Figures 2, 4, and 6 include a
preliminary assessment of the implications of the different analyses conducted
in developing a prototype public information campaign to improve awareness and
knowledge of the
ADA
. The following
section presents the most important of these implications for each of the key
components of the conceptual framework.
Campaign Goals
A state-of-the-art
public information campaign must identify the overall goal (or goals) that it
seeks to accomplish. Findings relevant to establishing the goal of this
campaign include these:
·
Information about the
ADA
is available, but the people who need it may not know how to obtain or use it.
A goal of the campaign is to increase awareness of and/or disseminate existing
materials.
·
A number of participants in the stakeholder
dialogues indicated that although a lot of information is available, it is not
detailed enough or specifically tailored to their needs. Another goal may be to
create more useful and usable information for specific target populations.
·
The increased visibility of people with
disabilities, accessible buildings, curb cuts, and so on in recent years has
contributed to changes in awareness and attitude, and an attitudinal foundation
exists (although it is not large) on which to build. A goal might be to build
on the current general awareness that people with disabilities are a part of
the community and enjoy many of the same activities as everyone else.
Defining the Target of the Campaign
Defining a target population
focuses the campaign (like a laser) and facilitates decisions about which media
to use when communicating the message. Because the
ADA
includes many different provisions that affect many different entities and
aspects of daily life, defining the target of this campaign also involves
identifying a specific topic focus as well as a target population. On the basis
of the issues raised and strategies identified for addressing them, and mindful
of the advantages of defining specific target populations, the project team has
identified implementation of Title III by small businesses as an appropriate
focus for developing a prototype public information campaign. Title III lends itself
to this purpose—architectural barriers and guidelines for removing them have
been well defined; public accommodations can benefit from expanding their
customer base to include the disability community; and, because public
accommodations are visible to the community at large, their increased efforts
to create access increase disability awareness among the general population.
Targeting small businesses not only addresses covered entities identified as
being in need of better access to good information but also offers the
opportunity to achieve greater access to public accommodations in small towns
and rural areas, as well as in the cities that are served by both large and
small businesses.
The small business community will
be the primary target population for the campaign; however, it may not be the
only target. For example, business owners voiced frustration about relying on
architects and the building permit process to ensure that construction and
remodeling efforts are in compliance; in some cases, architects and planning
department staff are not fully knowledgeable about the relevant regulations and
building codes. This suggests that architects and those who review blueprints
and building permits might be a secondary target audience. People with disabilities
might be another important secondary audience, as their understanding of the
business community’s obligations can be important to support effective
implementation in their own communities.
Setting Objectives
The way to tell that a public
information campaign has accomplished its overall goal (or goals) is by
establishing measurable objectives, preferably ones that specify a change over
the course of the campaign. While it may not be feasible to collect data to
measure effectiveness as part of the prototype campaign, it is important to
recommend measures that might be included in a scale-up of the campaign for
full implementation.
Defining Messages
The formative research
elicited existing awareness and knowledge of the populations that are the focus
of the campaign, provided suggestions for message design, and helped develop
communication strategies that will resonate with the target populations.
Important themes that emerged as potential messages for the campaign include
these:
·
With businesses, emphasize the benefits of
compliance with the
ADA
, such as
increased customer base and positive customer experience for everyone, not just
for people with disabilities.
·
The theme of universality is not only important,
it is a winning strategy— everyone benefits from implementation of the
ADA
,
not just people with disabilities.
·
Personalize the message and bring it home so the
audience can identify with it.
·
Look for ways to minimize “us vs. them” and
emphasize that the
ADA
provides
opportunities for everyone.
Based on the summary message points
above, the following message strategies were developed. In campaign
communication products, messages regarding
ADA
compliance were developed from the small business owner’s viewpoint and from
what the research says about the important knowledge, motivational, and
behavioral issues. For example, research findings from stakeholder dialogues
and focus groups showed that messages such as “people with disabilities are a
significant market” and “
ADA
compliance really isn’t that hard” are attractive and compelling.
Research also suggested that using
a combination of carrots and sticks—with more emphasis on the carrot than the
stick—can be effective. Carrots include the business revenues and positive
public image small business owners can enjoy if they make the effort to improve
access for people with disabilities. The campaign can tell small businesses
that providing access is not necessarily expensive and can have a very big
payoff for them. The prototype campaign can also use the stick of informing the
small business owner about the risks of not complying with the
ADA
,
including litigation, boycotts, and poor public image.
The Message: “Access Is Good
Business”
As with any other
marketing effort, the best way to sell an idea is to focus on the benefits. For
selling
ADA
compliance to small
business, this is a relatively easy job, as the benefits are many. For example—
·
Making a small business accessible increases the
number of customers who can use the business and increases gross sales and
profits. Providing access for customers with disabilities can mean a
significant market increase. People with disabilities are a very large market:
They are at least 20 percent of all potential customers; this percentage will
climb to 25 percent by 2020. Americans with disabilities have a collective
annual income of $1 trillion and $175 billion in discretionary spending power.
·
Making a business accessible creates a
competitive advantage over other businesses that do not have access, because it
creates opportunity for customers and because it makes the business a good
citizen in the local community.
·
People with disabilities are likely to become
loyal repeat customers of a business that welcomes them and makes it easy for
them to do business. This is ideal for small businesses that offer personalized
service.
·
People with disabilities are likely to offer
endorsements to people they know (and perhaps, through message boards and
blogs, even to people they don’t know) and bring in more customers through a “ripple
effect.” Word-of-mouth endorsement from satisfied customers is the single most
powerful marketing tool in any business.
The Message: “It’s Easier Than
You Think”
Small business owners
may have fears and prejudices that result from lack of knowledge, especially
with regard to the cost of providing access to their businesses. They may not
know that the
ADA
takes business
costs into account, requiring only that businesses make readily achievable
changes that they can accomplish without much difficulty or expense. They may
not realize that small businesses may stretch their limited resources by
phasing changes in over a period of years rather than attempting to make them
all at once. Many also are unaware of tax incentives that help small businesses
cover the expenses associated with compliance.
·
The Easy Access campaign tells small business
owners that resources devoted to compliance are an investment in increasing
their customer base, just like other types of marketing investments they make.
·
Small businesses may fear litigation if they
start down the path toward increasing access but don’t get it just right. The
Easy Access campaign tells small business owners that litigation is the
instrument of last resort, after all persuasion and negotiation fails, and that
most complaints are resolved through negotiation.
The Message: “It’s the Law”
With an emphasis on carrot rather
than stick strategies, the Easy Access campaign includes “It’s the Law” as a
secondary theme rather than making it a central message. The small business
community must realize that the law does apply to them, even if they are not
currently aware of customers with disabilities seeking to access their products
and services.
Branding
A number of themes are
emerging from the research that suggest a role for branding in this prototype
campaign. For example—
·
Frequent mention of the fact that the target
audience doesn’t know how to find the information they need or how to determine
which information is accurate suggests branding as a way to label or identify
current, accurate information that the audience can rely on to steer them
toward compliance and greater access.
·
A strong theme emerged regarding the value of
embedding
ADA
information in the
information the audience already receives about related topics. One possible
strategy is to include some form of branding (such as a marginal logo) that
flags ADA-related information enclosed in materials such as business license or
tax information, OSHA compliance materials, applications for building permits,
and so on.
·
The idea of a seal of approval for promoting
accessible services/businesses lends itself to branding as a way of supporting
increased public awareness and widespread acceptance of the symbol.
Media-Audience Mix
One of the most important
considerations in identifying the most appropriate media for a specific
audience is taking into account the sources the audience already turns to for
similar or related information. Using existing information channels is one of
the most efficient means for disseminating information, and one of the most
effective. For example, small businesses often look to their neighborhood
business associations for information on legal issues and ideas for reaching
specific market segments. Providing a PowerPoint presentation to neighborhood
associations and civic clubs might be a good match of media with audience.
Matching media to the audience also
involves assessing the quantity and level of detail to be disseminated. Small
business respondents indicated an interest in two different needs: (1) very
focused small bites of information about where information can be found and (2) detailed
information about specific requirements. The latter would obviously be best
delivered using a different medium and communication channel than the former.
Emerging Communication Technologies
Participants in the
stakeholder dialogues recommended using a range of different types of emerging
technologies to take full advantage of current trends in information flow. The
following are some of the suggested technologies:
·
Cell phone ads
·
Podcasts
·
Internet ads
·
In partnership with Web sites that provide maps
and directions, such as MapQuest and Yahoo, standard symbols that indicate
which of the nearby businesses on the map are accessible.
·
Mobile GPS systems. Some companies advertise on
the GPS systems in cars (such as OnStar), so when you get directions, they tell
you about nearby businesses. It might be possible to have additional
information on the businesses that indicates whether or not they are
accessible.
Timing
The sequencing and timing of
program components is key to the successful execution of a public information
campaign. When the formative data has been gathered, the next step is to take
that information and develop specific goals and objectives for the campaign.
The time frame for developing the prototype campaign did not allow for full
implementation or testing the effectiveness of the campaign, but those steps
are described in the prototype, including suggestions for who might implement
the campaign and how long it might take to launch.
Globalization
The impact of
globalization on increasing cultural and ethnic diversity is one
U.S.
trend that needs to be addressed directly in the development of the campaign.
It is probably most practical to design the prototype to reach broad
multicultural audiences rather than being segmented to reach different cultural
groups. Even when designing a cross-cultural campaign, there are a number of
important considerations, including these:
·
Use of clear language that is not too heavily
laden with slang, idioms, or other language that is difficult for non-native
English speakers to understand or difficult to translate.
·
Use of multicultural images rather than showing
only middle-class white Americans.
·
Use of bilingual or translated materials to
reach audiences of English language learners.
·
Focusing the message on concepts that are
universally accepted and understood, and avoiding cultural bias or
culture-specific concepts.
Figure 1. Situation Analysis: Stakeholder Knowledge of
the
ADA
|
Data Source
|
Stakeholders Involved
|
Knowledge of
ADA
|
Gaps in Information/ Awareness
|
Implications for Public Information Campaign
|
Stakeholder Dialogue
Feb. 10, 2006
(
Sacramento
,
CA
)
|
Disability
community
|
All
were very familiar with issues related to the
ADA
|
Participants
did not have significant knowledge gaps
themselves, but felt that other stakeholders lacked adequate knowledge or
were completely unaware
|
·
The increased visibility of people with
disabilities, accessible buildings, curb cuts, etc., have increased awareness
and shifted attitudes – build on this attitudinal foundation
·
Don’t assume that people with disabilities are
necessarily familiar with the
ADA
·
Identify ways to include disability issues
with other issues related to equity and fairness
|
Stakeholder
Dialogue
April
7, 2006 (Washington, DC)
|
Disability
community
|
All
were very familiar with issues related to the
ADA
|
Participants
did not have significant knowledge gaps themselves, but felt that some PWDs
(e.g., people with psychiatric disabilities) are unaware of the
ADA
or unaware that it applies to them
|
·
Critical to build bridges with the aging
community
·
Counteract negative media portrayals of PWPDs
·
Educate public entities about “nonwheelchair
issues” and their liability if they don’t serve all PWDs
·
Promote coordination between government and
nongovernment sources of
ADA
information
·
Highlight the universality of the
ADA
·
Promote disability awareness and destigmatize
disability
|
Stakeholder
Dialogue
Feb.
21–22, 2006
(
San
Francisco
)
|
Title
III
Large
businesses, business associations, and Title II entities
|
All
were familiar with issues related to Title III of the
ADA
|
Operational
information that relates to the
ADA
is entirely missing from internal sources such company intranets
|
·
Few people know how to find and use
information that is available – consider making it a focus of the campaign to
increase awareness of existing materials and/or disseminate existing
materials more widely
·
Business community responds to “pushed”
information rather than to information they must seek out
|
Stakeholder
Dialogue
Feb.
23–24, 2006
(
San
Francisco
)
|
Title
III
Small
businesses, business associations
|
All
were familiar with “the basics” of Title III
|
Businesses
have insufficient information to achieve compliance or to determine whether
or not they’re in compliance
|
Information
about how to find information on
ADA
topics relevant to small businesses would be very useful
|
Stakeholder
Dialogue
May
2–3, 2006
(
Chicago
)
|
Title
III
Large
businesses, business associations, and Title II entities
|
All
were familiar with “the basics” of Title
III
|
·
Business owners don’t know what they must do
·
Businesses don’t know when they’ve done enough
|
·
Need clearer guidelines and information,
perhaps industry-specific, telling businesses clearly what is required
·
Tell businesses and employers how they can get
the business of the disability community
·
Offer newsletter/magazine items to trade
associations
|
Stakeholder
Dialogue
May
4–5, 2006
(
Chicago
)
|
Title
III
Small
businesses, business associations
|
All
were familiar with “the basics” of Title
III
|
·
Businesses don’t know if they’re in compliance
or not
·
Confusion exists about difference compliance
requirements (
ADA
, state building
codes, ANSII standards, ADAAG requirements, standards for new vs. older
buildings, etc.)
·
Small businesses run by immigrants need
information and education about
ADA
and civil rights of PWDs
·
PWDs either don’t know the
ADA
exists or assume it covers everything
·
Architects don’t know about universal design
·
Lots of information and resources out there,
but “it’s not getting out on the street”
|
·
Need to get people to understand that the
ADA
is more than a building code; access is about enabling PWDs to interact with
all aspects of a business
·
Message should come from the stakeholder group
itself (e.g., business to business), not from the outside
·
Reach out to people of color in a way that
takes into account how their culture receives information
·
Emphasize that PWDs are consumers
·
Frame
ADA
message as being about inclusion in general, not just a special consideration
for PWDs
|
Stakeholder
Dialogue
April
4–5, 2006 (Washington, DC)
|
Transportation
Public
and private providers, transportation associations
|
All
were extremely familiar with the
ADA
and how it related to their services and programs
|
Paratransit
requirements are still unclear to some providers
|
·
Focus on universal improvements for a system,
not on “handicapped only” accessibility
·
The public (especially people with
disabilities) should understand that different providers have different
obligations under
ADA
(e.g.,
Greyhound does not have the same obligations as Amtrak)
|
Stakeholder
Dialogue
May
8, 2006
(
Washington
,
DC
)
|
Title
IV
Telecommunications
|
·
Companies covered by Title IV mandates are
well acquainted with their obligations
·
Outreach to the deaf and hard of hearing has
generally been successful
|
·
Most people associate the
ADA
with accessible buildings, not accessible
telecommunications
·
Deaf-blind individuals are largely unaware
of relay services and their function
·
Most of the general public—and even most
people with speech disabilities—do not know that STS relay services exist
·
Information needed about how to file a
complaint (e.g., coaching or a template)
|
·
Nearly every relay call also involves a
hearing person, so although outreach to the deaf and hard of hearing has
generally been successful, there is a need to shift the focus of outreach to
the hearing community
·
Many states have budgets for outreach, but
these are inconsistent and often inadequate – need to pool resources, develop
templates, etc.
·
Lots of information out there already, but
it’s all over the place – need a portal for information about Title IV
|
Stakeholder
Dialogue
April
18–19, 2006
(
San
Francisco
)
|
Title
I
Employers
|
All
were familiar with the basics of Title I
|
·
Need to know how to carry out the law with
their employees:
“We have all the information about what needs to be done, we just need help
in how to do it”
·
Lack of information about “how to respond” due
to lack of infrastructure (e.g., no legal or HR department)
|
·
Most employers want to accommodate people with disabilities, but have fears that
must be addressed, for example,
·
Cost of
ADA
compliance
(although some employers worry more about the cost of making a change than
about the actual cost of
ADA
compliance)
·
Risk of “going too far” and then having to go
that far with all other employees
·
If employers feel that they’re getting
something in return, they have less fear
·
Communicate that accommodations should be part
of a flexible workplace, not an “extra” for PWDs
|
Stakeholder
Dialogue
May
16–17, 2006
(
Houston
)
|
Title
I
Employers
|
All
were familiar with the basics of Title I
Employers
felt that the
ADA
was just one of
the many laws they must deal with
|
·
Employers and employees are not motivated to
learn about the
ADA
·
Employers have limited familiarity with the
range of accommodations
·
PWDs don’t know enough about the law to
advocate effectively for themselves
·
False information abounds (e.g., “You can’t
fire an employee with a disability”)
·
Disability awareness courses needed in
colleges and business schools
|
·
Provide information about the
ADA
as a basic human resources management skill
·
Emphasize both “human capital” and the bottom
line; show real-life examples of employees with disabilities who meet the
bottom line
·
Normalize the depiction of disability in all
areas of life and through all types of media (e.g., TV shows)
·
Use alternative forms of “media” (BBB,
chambers of commerce, Rotary Clubs, mayors’ offices, etc.)
·
Partner with job boards (Monster, HotJobs,
etc.) to provide information to employers about potential employees with
disabilities
|
Focus
Groups
November
5 and November 10, 2005
(
Hilo
,
Hawaii
)
|
Small
businesses
|
All
were moderately familiar with the
ADA
Specific
points noted:
Buildings
should be physically accessible (recent refitting of a school to comply with
the
ADA
was cited)
Aware
of accessible parking spaces in town
|
·
What responsibilities they have if they have
no current customers with disabilities
·
Where to get information
·
How
ADA
is enforced
·
The fact that the
ADA
is more than architectural barriers
·
Business tenant vs. landlord responsibilities
·
Disability etiquette: When is it okay to offer
to help a customer who has a disability?
|
·
Emphasize the message that people with
disabilities are a huge customer base
·
Businesses need to know some
ADA
basics:
o
ADA
applies whether businesses currently serve customers with disabilities or not
o
Businesses are responsible for access whether
they own property or not
o
ADA
is about civil rights
|
Focus
Groups
November
15, 2005
(
Reno
,
NV
)
|
State
Judges
|
All
were familiar with the
ADA
and
with relevant state laws
Specific
points noted:
All
were very familiar with issues related to accessibility of courts
Associated
ADA
with physical accessibility
and disability rights
|
No
need for specific knowledge of
ADA
unless a case is brought before them; none had yet seen a case based on state
law
|
ADA/disability
rights law is a highly specialized area of law; hence, the target audience
for detailed information about the law is small (primarily attorneys who have
an ADA/disability rights practice)
|
Figure 2. Situation Analysis: Media and Messages for
ADA
Public Information Campaign |
Data Source |
People Involved |
Information Sources |
Recommended Primary Communication Channels for
the
ADA
|
Ideas for Public Information Campaign |
Stakeholder
Dialogue
Feb.
10, 2006
(
Sacramento
,
CA
) |
Disability
community |
·
Personal communication
·
Government Web sites
·
Online news, blogs, Internet search engines,
other Web resources
·
Libraries – critical source of information and
computer access, especially in rural areas
·
Trade publications, magazines, newsletters
·
Employer workshops and trainings |
·
National media campaign/celebrity spokesperson
·
Magazine articles aimed at teens and youth
·
Articles in trade magazines
·
Educational programs and teacher training
(e.g., national disability curriculum)
·
Disability awareness month
·
Web mechanism/search engine to organize ADA-
and disability-related search terms |
·
Emphasize universal design concepts; show the
benefits of accessibility for people who do not have disabilities
·
Get past the “us vs. them” model, and
emphasize common needs and goals instead
·
Establish partnerships with affinity
organizations such as disabled veterans organizations, teachers’ associations
·
Dispel myths that people with mental and
developmental disabilities pose a danger
·
Ally
ADA
with related causes, such as the environment (“If it’s not accessible, it’s
not green”)
·
Show that people with disabilities come in all
forms; do product advertising using models with disabilities
·
Target youth, using technologies such as text
messaging, podcasts, Internet ads, and perhaps cell phone ads
·
Highlight model businesses in promotional
campaigns
·
Access is good business; access equals profit |
Stakeholder
Dialogue
April
7, 2006 (Washington, DC) |
Disability
community |
·
Sources at work
·
Blogs (e.g., Ragged Edge, Sam Bagenstos)
·
Google alerts
·
DBTACs |
·
Web sites and blogs
·
Disability history month
·
Educational programs (e.g., include disability
awareness in diversity curriculums) |
·
Focus on universality of message: The ADA is
good for everyone
·
Any entity that has
ADA
obligations should post what they do to meet those requirements on the Web
·
Need for pride in being part of the community,
but don’t allow it to create separateness, further stereotypes
·
Send message to kids – self-perception is critical |
Stakeholder
Dialogue
Feb.
21–22, 2006
(
San
Francisco
) |
Title
III
Large
businesses, business associations, and Title II entities |
·
DOJ, ADAAG, etc.
·
Company HR and legal departments
·
Attorneys’ sources (e.g., law review articles)
·
Community identification of problems/issues |
·
Existing business networks
·
Trade groups, trade publications
·
Books/articles for laypeople (e.g., universal
design for non-architects)
·
Celebrity spokesperson |
·
Focus on customer service and inclusion
·
Stay away from “us vs. them” (“The ADA: Providing
Opportunities for Everyone”)
·
Make sure to use high production quality
·
Include diverse images (not just men in
wheelchairs)
·
Blogs and podcasts
·
Seal of approval promoting accessible
services/businesses |
Stakeholder
Dialogue
Feb.
23–24, 2006
(
San
Francisco
) |
Title
III
Small
businesses, business associations |
Trade
associations |
Small
business information resources (e.g., U.S. SBA and other government agencies) |
Add
information on
ADA
to small
business information resources, especially those that provide information on
new legislation deemed relevant to small businesses |
Stakeholder
Dialogue
May
2–3, 2006
(
Chicago
) |
Title
III
Large
businesses, business associations, and Title II entities
|
·
Access Board
·
BNA pieces
·
Westlaw, Lexis, bar associations
·
Trade associations
·
Mainstream media
·
Informal peer networks |
·
Trade associations
·
Mainstream media
·
Informal peer networks |
·
Zagat restaurant ratings (soon after New
Orleans Zagat added accessibility ratings, restaurants showed a clear
increase in business from people with mobility disabilities)
·
“You [businesses] are leaving money on the
table by not serving PWDs”
·
Accommodations don’t hurt
·
Accommodations don’t take away from anybody
·
PWDs spend money
·
Everybody is temporarily abled
·
Disability is a human rights issue
·
We’re not all the same; we learn from one
another
·
Accommodate, don’t litigate
·
“I’d like to buy the world a ramp”
·
Access is good business
·
“Ramp
up your profits” |
Stakeholder
Dialogue
May
4–5, 2006
(
Chicago
) |
Title
III
Small
businesses, business associations |
·
Trade associations
·
Mainstream press
·
No single authoritative source of accurate
information about multiple aspects of
ADA
compliance
·
Much of the material on
ADA
is text-based only; not useful for people with cognitive disabilities |
·
Go to everyday places where people go
(churches, etc.)
·
Communicate with faith-based organizations
that think they are exempt from the
ADA
·
Blogs and Internet
·
Q&A for small businesses on a safe
Internet site
·
Radio is still a viable way to get messages
out |
·
“Access is a civil right”
·
Branding message: “Disability is Life” –
similar to the “what is life” media messages (having a credit card, owning a
Lexus, etc.)
·
Aim accessibility campaigns at children – use
furry animals as marketing tools and symbols
·
Portray a small business owner pulling out a
portable ramp, and in come customers with various mobility disabilities; pull
the camera back, and numerous other businesses on the street are doing the
same thing |
Stakeholder
Dialogue
April
4–5, 2006 (Washington, DC) |
Transportation
Public
and private providers, transportation associations |
·
Industry-specific materials
·
Professional meetings and conferences |
·
Providers’ Web sites
·
Magazine/newsletter ads for seniors and PWDs |
·
Incorporate the idea of accessibility in all
ads and outreach; get rid of “us vs. them”
·
Have DOT provide a chart displaying the
regulations that cover each mode of transportation |
Stakeholder
Dialogue
May
8, 2006 (Washington, DC)
|
Title
IV
Telecommunications |
·
FCC Web site, ADA.gov Web site (Department of
Justice)
·
Internet, including online support groups,
blogs, Google
·
Print media, magazines, newspapers, brochures
·
Deaf clubs
·
National Exchange Carriers Administration
·
ADA Information Centers
·
State relay business partnership programs
·
Word of mouth
·
Federal Register
·
PUCs
·
Helen
Keller
National
Center
, American Association of
the Deaf-Blind
·
TV, radio, PSAs
·
Public transportation ads
·
Direct mail (from, e.g., telephone companies)
|
·
TV ads, PSAs
·
Captioned television
·
Radio talk shows
·
Information clearinghouses
·
Shopping center kiosks
·
Billboards
·
Social/religious groups, senior centers,
services (e.g., when you register to vote or get a driver’s license)
·
Web banners
·
Public transportation ads
·
Readers’ Digest articles
·
Trade publication articles
·
Workshops on the
ADA
·
Distribution of information by state equipment
distribution programs
·
Chambers of commerce
·
Bathroom door ads
·
Coloring books for children
·
Telephone bill inserts
|
·
ADA/Title IV is not just for people with
disabilities
·
Message to businesses: “You are going to
broaden your market and make money”
·
A specific national outreach campaign by the
FCC that includes media advertising (as the FCC did for V-chips and the “do
not call” list)
·
Celebrity spokespeople, comedians
·
Relay promotes independence, control, and
safety
·
It is a matter of fairness and equality to
provide equal telephone access to everyone
·
Before and after ads (similar to Weight
Watchers ads)
·
Technology can help all people
·
Providing communication access to disability
communities adds to your bottom line – it brings consumers to your door, just
like a ramp does
·
Job opportunities for PWDs lead to more
taxpayers
·
Use snappy catch phrases, such as “Do you know
your N11 numbers?” (referencing 911, 411, 711 relay access) or “Have you
noticed that grandma doesn’t answer the phone anymore?”
·
Messages can also focus on the family: “Give
the gift of getting back on the telephone again.”
·
People who are deaf-blind can make a phone
call
|
Stakeholder
Dialogue
April
18–19, 2006
(
San
Francisco
)
|
Title
I
Employers |
·
Society for Human Resource Management (SHRM)
·
JAN (questions about resources, where to find
tools, equipment, accommodations, etc.) |
·
Personal interactions
·
Bus ads, bumper stickers, billboards, posters,
etc.
·
“The Golden Rules for PWDs” video:
·
Send out to HR offices, conventions for HR
administrators, etc.
·
Make available on Web so it can be downloaded
·
TV and newspaper ads
·
Educational programs for high school students
(e.g., EEOC Youth at Work program) |
·
Promote universality message – make your
business friendly to PWDs, and it’s more friendly to everyone; flexibility in
the workplace benefits everyone, etc.
·
Promote message that PWDs are people first
·
Portray people with various disabilities in
the uniforms of various occupations
·
Develop/promote an ADA Web site
·
Create a symbol that brands the
ADA
;
use symbol to identify a location as being open to people of all abilities
·
Use Internet in creative ways (e.g., blogging)
·
Put PSAs on wireless services
·
Airline magazine articles
·
News stories
·
Ads, brochures, booths at professional
conferences
·
Leverage other funding for PR campaign |
Stakeholder
Dialogue
May
16–17, 2006
(
Houston
) |
Title
I
Employers |
·
Professional publications
·
Accreditation newsletters
·
DBTACs
·
Internet, including ADA.gov Web site
·
Peer networking
·
Legal and HR information sources |
·
Normalized media and popular entertainment
portrayals of PWDs (i.e., job and social interactions with PWDs as colleagues
and friends)
·
E-mail
·
Trade shows and exhibits
·
Trainings, presentations
·
Broadcast media
·
Small businesses need SCORE or SBA to work
with them
·
The best way to get messages to legal and HR
people is through continuing education
·
Team up with critical political or business
forces and produce joint communications |
·
“ADA-tude”
·
“It’s what I can do for you”
·
TV ad campaign showing various PWDs doing
everyday jobs, ending with a statistic about X million PWDs working in this
country over an image of the entire country
·
Bracelets, other trends
·
Get big company sponsors to include
ADA
logo on their products (co-branding)
·
Send “nuggets” of information to the media
(e.g., weekly tip sheets or story ideas) – give them the leads, the contact
info, the basic story, etc.
·
Create a media guide with specific information
sources to turn to whenever a disability issue or link comes up
·
Get home repair shows to show accessibility
remodels
·
PWDs as employees make businesses successful;
PWDs are capable and effective employees; PWDs as employees add value
·
“The disabled job force: ready, willing and
able”
·
Market tax incentives, value of human capital
·
Advertise on Monster, HotJobs, etc.
·
Publicity for good
ADA
implementation/collaboration
·
Accommodations are not necessarily expensive
·
Show what would happen if PWDs were taken away
from the workforce – show a table with many people around it at work, then
have people start disappearing, leaving just a few people to continue the work
·
Create an information clearinghouse for
employers on insurance implications of the
ADA
; Market a
model insurance plan with Blue Cross/Blue Shield,
Aetna
,
etc.: “We don’t exclude any of your workers” |
Focus
Groups
November
5 and November 10, 2005
(
Hilo
,
Hawaii
) |
Small
businesses
|
·
Architects and contractors
·
Customers with disabilities |
·
Local business associations
·
Online resources
·
County/Federal Government listings in phone
book
·
Architects and contractors |
·
Use visuals/graphics that show what good
ramps, doorways, etc., look like
·
Keep written materials short
·
TV commercial with “Contact your DBTAC”
message
·
Provide specifics (e.g., ADA Accessibility
Checklist)
·
Provide mail inserts, presentation materials
for business associations, Rotaries, etc.
·
Create downloadable videos |
Focus
Groups
November
15, 2005
(
Reno
,
NV
) |
State
judges |
Administrative
office for accommodations for courtrooms |
Westlaw’s
research tab on the
ADA
|
·
Develop formal training and information for
judges who need to develop expertise in ADA/disability rights law |
Figure 3. Strategies Used to Educate the Public About
the
ADA
|
Information/Outreach Strategy |
Implemented/ Conducted By |
Target Audience |
Focus
(Aspect of
ADA
) |
Purpose |
Desired
Outcome / Action |
Information
Channels / Mechanisms |
Department of Justice
ADA
Technical Assistance Programs
·
ADA
Speakers Bureau
·
ADA
Information Line
·
ADA
Technical Assistance CD-ROM
·
ADA
Online Course
·
ADA
Materials Available Online
·
ADA
Mediation Program
|
DOJ
ADA
TA
Program
(ADA Mediation Program now operates under a contract
with the Key Bridge Foundation) |
General public, particularly employers and the business
community |
All aspects, especially employment |
Provide TA on
ADA
require-ments, DOJ regulations, and architectural design standards |
Increased compliance with DOJ regulations and
ADA
requirements |
·
Toll-free
ADA
Information Line
800–514-0301
800-514-0383 (TTY)
·
Free CD-ROM
·
Free
publications
·
Online
course at: www.ada.gov/reachingout
/intro1.htm |
ADA & IT Technical Assistance Centers
10 regional centers provide TA to PWDs and people with
ADA
responsibilities. Mandate also includes “public awareness,” addressed via
online information resources for the media. Also known as DBTACS (Disability
and
Business
Technical
Assistance
Centers
)
ADA
Document Portal
www.adaportal.org |
Funded by U.S. ED’s National Institute on Disability
and Rehabilitation Research (NIDRR) |
·
Business
community
·
State/local
governments
·
Disability
community
·
The
media |
·
Employment
of PWDs
·
Public
services
·
Public
accommodations
·
Communications |
·
Provide
TA, education and training, materials dissemination, referral networks, and
training |
Improved accessibility for PWDs |
·
Toll
free phone 800-949-4232 (V/TTY)
·
Online
resources www.adata
.org
·
Print
materials |
DisabilityInfo.gov
Federal interagency collaborative effort to build a
one-stop interagency Web portal and comprehensive online resource to provide
people with disabilities with the information they need |
Coordinated by
U.S.
DOL Office of Disability Employment Policy
(ODEP) |
·
PWDs
and their families
·
Employers
·
Service
providers
·
Other
community members |
All aspects of
ADA
|
One-stop resource to provide PWDs with information on all subjects |
Improved opportunities for PWDs in all areas |
One-stop Web portal and online resource
http://
disabilityInfo
.gov
|
Employer Assistance and Recruiting Network (EARN)
National toll-free telephone and electronic information
referral service. Service became available to the public March 2001. |
Service of ODEP |
·
Employers |
Employment of PWDs |
·
Help
employers locate and recruit qualified workers with disabilities
·
Provide
TA on general disability employment-related issues |
Employment of PWDs |
·
Toll-free
phone 866-EARN NOW (327-6669)
·
Web
site www.
earnworks
.com
|
Job Accommodation Network (JAN)
Comprehensive information source providing information
and practical ideas on job accommodations, self-employment, small business
opportunities,
ADA
compliance,
and related subjects. Founded in 1983; providing
ADA
information to employers since it went into effect (1992) |
Free service of ODEP |
·
Employers
·
Employment
providers
·
People
with disabilities, their family members
·
Other
interested parties |
Employment of PWDs |
Facilitate the employment and retention of workers with
disabilities |
Employment, including self-employment and small
business ownership, of PWDs |
Web site www.jan.wvu
.edu
|
DOL Women’s Bureau (WB)
|
Collaboration with ODEP |
Women with disabilities who are interested in
self-employment |
Employment of PWDs |
Facilitate the self-employment of women with
disabilities |
Women with disabilities obtain self-employment |
Print materials (fact sheets) and Web site materials
www.dol.gov/
wb/welcome.html
|
Office of Small Business Programs (OSBP)
Vendor outreach sessions (at least two procurements)
------------------------------------------
Training targeted for veterans with disabilities in the
new small business procurement initiatives |
DOL |
Businesses owned by PWDs
-------------------
Veterans with disabilities (both service- and
non-service-connected) |
Employment of PWDs |
Facilitate the employment of people with disabilities |
Business owners and veterans with disabilities obtain
employment |
FedBizOpps Web site |
Olmstead Project
Jointly conducted by Independent Living Research
Utilization (ILRU) project and Brain Injury Association, Inc. (BIA) |
Joint ED, HHS, and DOL project
In FFY 2000 and 2001, ED-OSERS offices (NIDRR, RSA, and
OSEP) pooled funding to support this project |
Selected cross-disability leaders and advocates to be
trained to work with state staff to develop, implement, and evaluate their
comprehensive state plans |
Olmstead decision |
Promote grass-roots advocacy by training a core group
of cross-disability leaders to help states implement Olmstead |
Trained grassroots advocates provide states with TA on
their state plans for consumer-directed home/
community-based services for people with significant disabilities |
Training/staff development |
Regional Rehabilitation Continuing Education Programs
(RCEPs):
University
of
Arkansas
San Diego
State
University
Training includes learning objectives to ensure that
rehabilitation professionals and community organizations have a working
knowledge of the Olmstead decision
and its applicability to the VR process. |
Funded by RSA Rehabilitation Training Program |
·
VR
and IL professionals
·
Community
organizations |
Olmstead decision |
Develop training on Olmstead implementation for VR and IL professionals and community organizations |
·
Increased
capacity of VR programs & CILs to serve potential consumers and
coordinate w/ other agencies
·
Increased
staff ability to recognize potential consumers’ needs and offer effective
intervention strategies
|
Training/staff development |
Office for Civil Rights (OCR)
TA to states in undertaking efforts to develop plans
for community integration, as outlined in Olmstead.
|
U.S.
ED Office for Civil Rights (OCR) |
·
States
·
Disability
and aging communities |
Olmstead decision |
Help states implement Olmstead |
Increased access to consumer-directed
home/community-based services for people with significant disabilities |
TA from
ADA
experts at OCR headquarters and regional offices, and from external experts
on long-term care. |
Center for an Accessible Society
A communications clearinghouse that provides
journalists with credible information and quotable sources on national
disability policy and independent living issues |
Funded by NIDRR from October 1999 through May 2004 |
Journalists |
Disability and independent living issues |
Provide disability issues information for journalists |
Focus public attention on disability and IL issues |
Web site www.accessiblesociety.org/
casindex.shtml
|
HHS Fact Sheets for Consumers
|
HHS National Mental
Health
Information
Center
|
PWDs |
Access to services and to protection and advocacy |
Provide information on rights to people with MI |
Improved services for people with MI |
“Know Your Rights” FAQs and resource guide |
HHS Technical Assistance to States
HHS-CMS has created a repository of Promising Practices
in Home and Community-Based Services (HCBS) to highlight state efforts that
enable people of any age who have a disability or long-term illness to live
in the most integrated community setting appropriate to their individual
support requirements and preferences, exercise meaningful choices, and obtain
quality services.
|
HHS Centers for Medicare and Medicaid Services |
·
States
·
Disability
and aging communities |
Olmstead decision |
·
Maximize
use of existing Medicaid authority to promote community participation and
employment for PWDs
·
Strengthen
community long-term supports for implementing Olmstead |
Increased opportunities for PWDs to enjoy community
living, community participation, and productive employment |
Series of reports on promising practices in home- and
community-based services
Located at
www.cms.hhs
.gov/PromisingPractices/HCBSPPR/list.asp#
TopOfPage
|
Assistive Technology (AT) Act projects
The AT Act of 1998 provides grants to states to provide
information, training, awareness, TA, and materials related to the benefits,
availability, and uses of assistive technology. The 56 AT Act projects have
been operational since 1989. |
Administered by NIDRR |
PWDs, their families, and representatives |
Independence
of individuals with disabilities |
Increase access to and provision of AT services and
devices |
Improved independence of PWDs |
AT Act projects |
Figure 4. Assessment of Strategies Used to Educate
the Public About the
ADA
|
Information/Outreach Strategy |
Strengths |
Weaknesses/ Information Gaps |
Implications for Public Information Campaign |
Department
of Justice
ADA
Technical Assistance
Programs
|
·
ADA Speakers Bureau provides expert speakers
at national/regional conferences and training sessions
·
All materials provided free
·
Documents on the CD-ROM are provided in a
variety of formats, to enable people with disabilities and others to gain
easy access, translate materials to Braille, or use screen readers
·
The CD-ROM is designed for use on computers
without high-speed Internet access
·
Online course is divided into 10 lesson
modules to fit into a busy schedule |
Vast
amount of material on Web site might seem overwhelming |
·
Make materials available in multiple formats
for maximum accessibility for PWDs.
·
Remember that not everyone has high-speed
Internet access or the latest version of common software.
·
Take advantage of existing conference and training
sessions. |
ADA
and IT
Technical
Assistance
Centers
(DBTACS) |
·
Each DBTAC works closely with local
businesses, and with government, rehabilitation, disability, and other
professional networks to provide
ADA
information and assistance
·
Useful media kit |
Provides
materials upon request; not proactive |
Encourage
collaboration with local businesses, and with government, rehabilitation,
disability, and other professional networks to provide
ADA
information and assistance. |
DisabilityInfo.gov
|
One-stop
center for resources on all issues relevant to PWDs |
Vast
amount of material on Web site might seem overwhelming |
Make
sure that Web sites containing a great deal of information are easy to
navigate and that links, cross-references, etc., are clear and easy to use. |
Employer
Assistance and Recruiting Network (EARN)
|
·
Prominently advertises the message “What EARN
Can Do for You”
·
Connects employers looking for quality
employees with skilled job candidates |
Job
seekers have no direct access or interface, must go through an employment
service provider. It may be necessary for a job seeker to go through several
steps to find a provider who receives postings from EARN employers or to have
his/her current provider become part of EARN. |
Don’t
make acting on the information received too complicated or time-consuming. |
Job
Accommodation Network (JAN)
|
·
Good print materials, e.g., “Practical Guides”
for employers and employees on reasonable accommodation under the
ADA
·
SOAR (Searchable Online Accommodation
Resource) for exploring workplace accommodation options by moving through a
5-step process that includes FAQs and links to additional information
·
JAN Presentation Library provides training
resources for JAN users
·
Long-standing excellent reputation, well-known
in the field |
No
significant weaknesses |
·
Web sites must have searchable features.
·
Ideally, Web sites will have interactive
features.
·
Take advantage of name recognition, good
reputation, and credibility of known entities in the field—link from their
Web sites, solicit testimonials and references. |
DOL
Women’s Bureau (WB)
|
Comprehensive,
detailed Web site with many topics of interest |
Recent
changes to the Web site have made it difficult to find previously bookmarked
materials on employment of women with disabilities |
·
Web sites must be easily searchable
·
Careful, professional maintenance of Web sites
is important; take care when updating materials or changing links. |
Office
of Small Business Programs (OSBP)
Vendor
outreach sessions (at least two procurements)
--------------------------------
Training
targeted for veterans with disabilities in the new small business procurement
initiatives |
Detailed,
specialized information |
No
significant weaknesses |
Information
sources for specialized audiences can be more detailed and focused than those
for the general public. |
Olmstead Project
|
·
Collaboration across relevant agencies
·
Cross-disability focus
·
Provides how-to information on developing,
implementing, and evaluating state plans
·
Meets important need for
ADA
information |
No
significant weaknesses |
·
Importance of meeting stated information
needs.
·
Value of providing how-to information.
·
Having a cross-disability focus for the
overall campaign is important, although there may be components of the
campaign that focus on just one disability group. |
Regional
Rehabilitation Continuing Education Programs (RCEPs)
|
Comprehensive
training for VR and IL professionals |
No
significant weaknesses |
Information
sources for specialized audiences can be more detailed and focused than those
for the general public. |
Office
for Civil Rights (OCR)
|
Large,
comprehensive, central location for
ADA
information |
No
significant weaknesses |
Make
sure that Web sites containing a great deal of information are easy to
navigate and that links, cross-references, etc., are clear and easy to use. |
Center
for an Accessible Society |
·
Good coverage of topics
·
Links to Expert Sources
·
Enough detail for journalists to understand
issues in depth yet does not overwhelm them with more than they need |
Outdated
material, broken links due to end of funding |
·
Web links or other connections to Expert
Sources is a great idea.
·
Important to pay attention to level/amount of
detail provided; it needs to be just right for the intended audience.
·
Might be useful not only to note that Web
sites or other information materials are fully accessible but also to provide
information on what makes them accessible. |
HHS
Fact Sheets for Consumers
|
Know
Your Rights materials are clear, concise, and up to date |
No
significant weaknesses |
Make
sure resource lists are easily updatable
so they always remain current. |
HHS
Technical Assistance to States
|
·
Promising Practices Reports are brief (usually
2–3 pages)
·
Reports are focused on discrete components of
home- and community-based service systems, such as person-centered planning,
eligibility systems, or personal assistance services
·
Reports are intended to disseminate timely
information on program and policy innovation |
No
significant weaknesses |
According
to CMS, “these reports are intended to stimulate HCBS program changes, spark
creative ideas, and serve as a launching pad for the next generation of
program innovations”—good objectives for an information campaign. |
Assistive
Technology (AT) Act projects
|
Detailed,
specialized information |
No
significant weaknesses |
Information
sources for specialized audiences can be more detailed and focused than those
for the general public. |
Figure 5. Materials Used to Educate the Public About
the
ADA
|
Material |
Developed/ Disseminated By |
Target Audience |
Aspect of
ADA
Focused On |
Purpose |
Desired
Outcome / Action |
Type of Material/How Obtained |
ADA
Technical Assistance CD-ROM
Department of Justice
ADA
Technical
Assistance Programs
|
DOJ
ADA
TA
Programs
|
General public, particularly employers and the business
community |
All titles
|
Provide TA on
ADA
requirements, DOJ regulations, and architectural design standards |
Increased compliance with DOJ regulations and
ADA
requirements |
CD-ROM
www.ada.gov/
adatacd1.htm
or by phone |
ADA
Checklist for Barrier Removal
Department of Justice
ADA
Technical
Assistance Programs
|
Adaptive
Environments
Center
;
DOJ
ADA
TA
Programs |
Business community |
Title III |
Provide TA on making existing facilities accessible |
Improved accessibility to public accommodations |
Document
www.usdoj.gov/crt/ada/
checkweb.htm
|
Myths and Facts
about the Americans with Disabilities Act
Department of Justice
ADA
Technical
Assistance Programs
|
DOJ
ADA
TA
Programs |
·
Business
community
·
State
and local governments |
All titles |
·
Increase
understanding of the
ADA
·
Dispel
some common misconceptions about the
ADA
’s
requirements and implementation
|
Covered entities make increased efforts to comply |
Online document
www.usdoj.gov/crt/ada/pubs/
mythfct.txt
|
ADA
Guide for Small Businesses
Small Business Administration and Department of Justice |
DOJ
ADA
TA
Programs
|
Small businesses |
Title III |
·
Help
small business achieve compliance |
·
Small
businesses take an active role in ensuring their own compliance
·
Improved
accessibility to public accommodations |
Document
www.usdoj.gov/crt/ada/
smbusgd.pdf
|
Ten Small Business Mistakes
Department of Justice
ADA
Technical
Assistance Programs
|
DOJ
ADA
TA
Programs |
Small businesses |
Titles I and III |
·
Increase
understanding of the
ADA
·
Dispel
some common misconceptions about the
ADA
’s
requirements and implementation |
Covered entities make increased efforts to comply |
Online video
www.usdoj.gov/crt/ada/
videogallery.htm#anchor10mistakes990
|
ADA
Tax
Incentive Packet for Businesses
U.S. Attorney General’s Office
|
DOJ |
Business community |
Title III |
Increase awareness of tax incentives for increasing
accessibility |
Covered entities make increased efforts to comply |
Text or PDF document
www.usdoj.gov/crt/ada/taxpack
.htm
|
Reaching Out to
Customers with Disabilities
Department of Justice
ADA
Technical
Assistance Programs
|
DOJ
ADA
TA
Programs |
Business community |
Title III |
·
Help
businesses increase their PWD customer base
·
Increase
awareness of PWDs as a valued customer base. |
Increased business
from customers with disabilities
|
Online course
www.ada.gov/
reachingout/
intro1.htm
|
Expanding Your Market:
Customers with Disabilities Mean Business
Civil Rights Division, Department of Justice
|
DOJ, Civil Rights Division, Disability Rights Section |
Business community |
Title III |
Increase awareness of PWDs as customer base |
Increased interest among businesses in attracting
customers with disabilities |
Online document
www.usdoj.gov/crt/ada/busstat
.htm
|
Media Kit
ADA & IT Technical Assistance Centers (DBTACs)
|
Funded by U.S. ED’s National Institute on Disability
and Rehabilitation Research (NIDRR)
|
The media |
General |
·
Provide
content for reporters
·
Provide
insights about positive ways to present PWDs in the media |
Publish positive stories about PWDs and the
ADA
|
Online resources www.adata.org
|
Employer
Newsletter
Employer Assistance and Recruiting Network (EARN) |
Service of
U.S.
DOL Office of Disability Employment Policy (ODEP) |
Employers |
Employment of PWDs |
·
Help
employers locate and recruit qualified workers with disabilities
·
Provide
TA on general disability employment-related issues
|
·
Increase
knowledge of employment issues
·
Keep
referral and contact information handy |
Electronic newsletter
www.earnworks.com
|
E-News
Job Accommodation Network (JAN)
|
Free service of ODEP |
·
Employers
·
Employment
service providers |
Employment of PWDs |
Facilitate the employment and retention of workers with
disabilities |
·
Increase
knowledge of accommodation issues
·
Keep
information handy
|
Electronic newsletter
www.jan.wvu.
edu
|
Your Rights Under
the Americans with Disabilities Act
Office for
Civil Rights (OCR), HHS
|
HHS Fact Sheets for Consumers, OCR |
PWDs |
Access to services, and to protection and advocacy |
Provide information on the
ADA
’s
protection of civil rights |
Increased awareness of rights among people with disabilities |
On OCR/HHS Web site www.hhs.gov/
ocr/ada.html
|
Accessibility and Businesses and Service
Providers Web page
DisabilityInfo.gov
|
Federal interagency collaborative effort to build a
one-stop interagency Web portal and comprehensive online resource |
·
PWDs
and their families
·
Employers
·
Service
providers
·
Other
community members |
Civil rights, education, employment, housing, health,
income support, technology, transportation, and community life |
Increase awareness of
ADA
access issues and provide implementation information to Title III entities. |
Increase access to public accommodations and services |
Web site
http://disabilityinfo.gov/digov-public/public/DisplayPage.do?parentFolderId=
212
|
Access Currents
U.S.
Access Board
|
The Access Board is an independent federal agency
devoted to accessibility for people with disabilities. |
·
Attorneys
·
Advocates
·
Others
involved in implementing the
ADA
|
Is very broad and addresses all titles.
Focuses mostly on the legal aspects of compliance |
Disseminate up-to-date information on compliance issues |
Increase compliance |
Electronic newsletter
www.access-board.gov/news/Access%20Currents/General
.cfm
|
Providing Quality
Services to Customers with Disabilities
DOL Office of
Disability Employment Policy
|
ODEP
|
·
Businesses
that provide public accommodations
·
Direct
customer service staff |
Title III (although some of the tips are transferable
to contact with PWDs in other contexts) |
·
Increase
understanding of how to effectively interact with customers with disabilities
·
Increase
awareness of the size of the customer base |
·
Increase
access to public accommodations
·
Improve
quality of services to PWD |
Online document
www.dol.gov/
odep/pubs/ek98/provide.htm
|
Myths and Facts
DOL Office of Disability Policy
|
ODEP
|
Employers |
Title I |
·
Increase
understanding of the
ADA
·
Dispel
some common misconceptions about the
ADA
’s
requirements and implementation |
Reduce discrimination in the workplace |
Online document
www.dol.gov/
PrinterFriendly/PrinterVersion.aspx?url=http://www.dol.gov/
odep/pubs/fact/
ada.htm |
Public Accommodation Awareness Web site
Wheel Me On |
Wheel Me On is a nonprofit organization dedicated to promoting greater access for people
with disabilities. |
PWDs and their families |
Public accommodations
|
Increase awareness of Title III issues and encourage
increased access |
Encourage PWDs to patronize accessible services and
advocate for increased access |
Online document
www.wheelmeon
.org/
accommodations
.html
|
Appendix F – Summary of
ADA
Implementation Recommendations by Targeted Audience
I. Employment (Title I)
Recommendations for Congress
·
Congress must enact legislation that reverses
the Supreme Court decision narrowing the definition of disability so
individuals with disabilities who were intended to be covered by the law are
again eligible to use it to challenge discrimination.
Recommendations for Educational Institutions and
Accreditation Organizations
·
As a requirement for accreditation of programs
that prepare students for careers in management and business, organizations
such as the Association to Advance Collegiate Schools of Business should
include course content or courses that explore the principle of workplace
flexibility—and why it is beneficial to employers and employees alike—and that
introduce the concept of reasonable accommodation for people with disabilities
as a template for workplace flexibility.
·
Workplace Flexibility 2010—an initiative of
Georgetown University Law Center that supports the development of a
comprehensive national policy on workplace flexibility at the federal, state,
and local levels—should increase attention to the concerns facing workers with
disabilities.
·
Accreditation bodies such as the Association to
Advance Collegiate Schools of Business should require as a condition for
accreditation that a disability curriculum module be incorporated in
professional training programs related to business administration, leadership,
and management. The module should contain elements on the requirements of Title
I of the
ADA
, disability awareness,
and the inclusion of people with disabilities in discussions of workplace diversity.
Recommendations for Federal Agencies
·
The Equal Employment Opportunity Commission
should develop partnerships with public agencies such as employment development
departments; Department of Labor One-Stop Career Centers; state departments of
rehabilitation; and national, state, and local disability organizations to
develop training modules and deliver targeted training to job seekers and
employees with disabilities. Modules should be developed that recognize and
respond to the specific and unique needs of subgroups of people with
disabilities, such as youth, workers seeking entry-level employment, reentering
workers, older workers, and individuals who are changing careers. Training
should enable people with disabilities to understand their
ADA
employment rights and should promote skills and methods whereby they can use
this information to advocate for themselves successfully during all aspects of
the job search, as well as in the workplace. Training should be offered as an
ongoing service of the collaborating agencies and organizations.
·
The Office of Disability Employment Policy
(ODEP) of DOL should collaborate with leaders in the field of mentoring—such as
the National Mentoring Partnership and Netmentors—to identify methods to ensure
that youth with disabilities are fully included and accommodated in all
mentoring programs, and that mentoring program staff receive appropriate ADA
training and information to ensure that they have the capacity to meet the
needs of youth with disabilities.
·
The EEOC, DOL, SBA, and other federal agencies
concerned with employment of people with disabilities should acknowledge the
substantial need for
ADA
training
by employers at all levels and should join forces to create a campaign that
responds to this need. Such an initiative must have adequate financial
resources and the commitment of key federal agency, business, and industry
leaders; associations; and trade unions. The goal would be to foster commitment
to a systematic, nationwide, annual
ADA
and disability awareness training for boards of directors, management and human
resources staff, union stewards and representatives, and others involved in the
hiring and retention of workers. The initiative could be launched in concert
with an existing public awareness campaign focused on promoting workplace
diversity that includes employees with disabilities.
The initiative should develop training modules that
o
are targeted to specific industries (for
example, health care, hospitality, manufacturing);
o
contain a complete package of substantive
ADA
information and materials, handouts, and multimedia resources;
o
contain materials and recommendations for
presenting updates throughout the year that can be delivered by e-mail, Web
site referral, and newsletters, and that can be integrated with other ongoing
training provided by the employer or union;
o
are easily obtained from a Web site; and
o
are available in alternative formats.
·
The SBA should establish partnerships with
disability organizations and institutions of higher education to develop and
add an ADA Title I training course to its roster of free online courses for
small businesses. The SBA should sponsor local and regional ADA Title I
trainings as an ongoing element of its national training seminars for small
businesses.
·
The SBA should identify methods to ensure that
participants in the SCORE project—retired executives who advise small
businesses—possess adequate knowledge of the employment provisions of the
ADA
,
and incorporate this knowledge and information when they consult with small business
owners and executives.
·
The DOL Office of Disability Employment Policy
(ODEP) should identify methods to promote the message that people with
disabilities represent a significant pool of available labor that can be drawn
upon to fill jobs when there are labor shortages.
·
ODEP should consider new ways to expand
advertising and promotion of the services of the Job Accommodation Network
(JAN) and to educate employers about the availability of the service. ODEP
should ensure that funding for JAN meets the demand for its services.
·
The Government Accountability Office (GAO)
should update its 2002 tax credit study (which was based on 1999 business tax
returns) to determine whether businesses have increased their use of the tax
credits and other incentives related to hiring individuals with disabilities.
On the basis of the study results, the IRS—in consultation with relevant
federal agencies, businesses, and disability community representatives—should
make recommendations to NCD and Congress for changes in the tax credit system,
which could include increasing the credits as an incentive to improve
employment opportunities for people with disabilities.
·
The IRS and other federal agencies concerned
with implementation of the
ADA
should launch an educational campaign that informs businesses about the
financial incentives and tax credits associated with hiring individuals with
disabilities. This information should be widely disseminated in tax filing
information and through other channels to small and large business networks,
the U.S. Chamber of Commerce, local and regional chambers, online sources,
unions, and disability organizations.
·
The EEOC should step up its efforts to ensure
that business partners in the Youth at Work program proactively identify, reach
out to, and include youth with disabilities in all their activities.
·
The EEOC, DOL, SBA, and other federal agencies
concerned with employment of people with disabilities; business trade and
membership organizations such as regional chambers of commerce and the Society
for Human Resource Management (SHRM); and disability organizations should
collaborate to develop and disseminate model policies for establishing
entity-wide funding mechanisms that can be used by divisions, departments, and
cost centers to pay for accommodations. These models should include provisions
for compensating managers for the time they spend identifying and acquiring
accommodations, so that time allocations for these tasks can be calculated
accurately and factored into long-range financial planning. The models should
promote the principle that providing accommodations is a standard and ordinary
cost of doing business.
·
The EEOC, SBA,
DOL, SSA, IRS, and other federal agencies concerned with enforcement of the ADA
and employment of people with disabilities should collaborate with large Internet job boards
such as Monster, HotJobs, and others of similar size and scope on methods to
increase awareness of the ADA by employers and methods to encourage increased
outreach to and hiring of people with disabilities. Areas for collaboration
could include the following:
o
Development of an online column featuring
information of interest to employers and job seekers alike (e.g., examples of
effective accommodation, hiring and tax incentives, Ticket to Work).
o
Adding informational resources for employers and
job seekers alike, such as the Job Accommodation Network, location and function
of the
One-Stop
Career
Centers
, and Frequently Asked Questions about
ADA
rights and responsibilities.
·
EEOC, DOL, and other federal agencies concerned
with implementation of the
ADA
and employment of people
with disabilities should foster methods whereby employers such as those who
participate in business leadership networks and organizations such as SHRM and
the National Association of Workforce Boards (NAWB) can engage in peer-to-peer
discussions about
ADA
implementation. The goal is for business leaders themselves to demonstrate that
the
ADA
can be implemented in a
meaningful way and to illustrate by example the beneficial outcomes of
implementation, which will serve as a model for others.
·
EEOC, DOL, and other relevant federal agencies
concerned with employment of people with disabilities should explore the
feasibility of establishing a national alternative dispute resolution program,
possibly in connection with existing private mediation services, that would
help employers and people with disabilities resolve workplace disputes related
to
ADA
rights and responsibilities.
Financing could be secured from a combination of public funding and private
subscription fees from businesses.
·
The federal agencies charged with improving
employment opportunities for people with disabilities should convene a working
group of agency leaders, disability leaders, insurance company representatives,
and others to develop strategies to address the impact on working people with
disabilities of decreasing benefits from employer-sponsored health care
insurance. Subjects for discussion should include the increasing prevalence of
benefit caps on durable medical equipment and restrictions on mental health
services and prescription drugs.
Recommended Research Topics for ADA Federal Enforcement
Agencies
·
Key
federal agencies charged with a role in enforcement of the ADA (for example,
EEOC and the Departments of Justice, Health and Human Services, and Education)
should establish a center of excellence either within the agency or through a
qualified contractor. Each center’s mission would be to conduct research and
collect information about effective methods of
ADA
implementation related to the agency’s sphere of concern, rigorously evaluate
those methods to determine their quantifiable impact on people with
disabilities, and report and widely disseminate results that will serve as
models.
Specifically, the centers established
to evaluate Title I implementation practices should build collaborative
relationships with businesses, which could include providing technical
assistance and other incentives to help them develop methods to collect
relevant data, for example, on the effectiveness of procedures for requesting
job accommodations, the number and type of requests, and outcomes. (The EEOC’s
employment best practices research with nine state governments is an example of
the type of initial work that is needed.)
Recommendations for Government and Business Organizations,
Associations, and Unions
·
The U.S. Chamber of Commerce, state and local
chambers, fraternal organizations such as Rotary International and Lions Clubs,
and national trade and membership associations such as the Society for Human
Resource Management (SHRM) should proactively disseminate information to their
members and partners about the
ADA
and employment generally. These organizations should specifically announce,
promote, and disseminate training modules developed in response to the annual
ADA
training initiative previously discussed.
·
Trade union leaders should proactively disseminate information to representatives and
stewards about the
ADA
and employment, and should
specifically announce, promote, and disseminate training modules developed in
response to the annual
ADA
training
initiative previously discussed. Unions should be encouraged to promote
training at worksites where they represent workers in order to build capacity
to solve problems and prevent them from escalating.
·
The U.S. Chamber of Commerce, regional and local
chambers, and national trade and membership associations such as SHRM should
proactively include people with disabilities in all informational and
promotional materials, including podcasts, listservs, and other relevant online
discussions of topics with broad interest to the business community.
·
The National Conference of State Legislators
should work with national disability organizations and employers to develop and
adopt a position that urges members to propose state legislation that would
require anyone who either receives a promotion or accepts a job requiring
supervision of others to undergo mandatory training on the
ADA
,
just as certain states currently require such training on sexual harassment. (Supra note 3.)
Recommendations for City and
County
Governments
·
When businesses apply for a new license, or renewal
of an existing business license, they should receive basic information about
the
ADA
and where to obtain
additional information.
·
Cities and counties should consider placing
funds collected from fines when people park illegally in spaces designated for
drivers with disabilities in an accommodation pool.
Recommendation for Disability Advocacy Groups
·
Disability advocacy groups should educate state legislators about the impact on working
people with disabilities of private health insurance coverage limitations and
should advocate for legal and policy reforms at the state level that prohibit
coverage caps for durable medical equipment and other necessary services.
II. Public and Private Transportation (Title II and
III)
Recommendations for Congress
·
Congress should provide additional resources for
enforcement of the
ADA
transportation provisions. Additional staff to conduct complaint
investigations, additional funds for
ADA
compliance reviews, and funding for a complaint reporting mechanism could have
a real impact on implementation.
Recommendations for Federal Agencies
·
The Department of Transportation should work
with the Department of Education to include training on riding public
transportation as a component in Individualized Education Programs (IEPs) of
students with disabilities. Vocational rehabilitation clients should also
receive training on public transportation skills.
·
DOT should distribute periodic announcements
that the
ADA
allows paratransit
providers to exceed the regulation limit of 50 percent of capacity to be
dedicated to their subscription service, if the demand is present, as long as
there are no capacity constraints on the service.
·
The Access Board should consider whether visual
announcements should be required when audible announcements are present on
buses, in trains, and on train platforms.
·
Federal Transit Administration rules for the New
Freedom Initiative should not preclude voucher and volunteer driver programs,
which have been effective in bringing additional transportation to rural areas.
Recommendation for States
·
When an over-the-road vehicle is licensed, the
licensing agency should include information with the license that explains the
ADA
requirements for that type of vehicle.
Recommendations for Transit Agencies and Operators
·
ADA Transportation providers should harness the
power of their riders with disabilities to report information about
ADA
implementation and compliance problems with drivers, equipment, and service
through brochures and posters giving riders information on their rights and how
to reach the provider’s
ADA
compliance office.
·
Transit agencies should include
ADA
training for boards, managers, and politicians as well as frontline staff who
are delivering service.
·
As a condition of the program, contracts between
transit agencies and taxis that participate in an
ADA
paratransit service using a voucher system or other arrangement must include
mandatory training on the
ADA
for
the taxi service provider.
·
Transit agencies should provide strong oversight
of drivers and other staff responsible for stop announcements.
·
Transit agencies should use progressive
discipline in cases of operator failure to announce required stops.
·
Transit agencies should initiate secret rider
programs to assess compliance with the
ADA
stop announcement provisions.
·
Transit agencies should acquire equipment such
as lapel and sleeve microphones to help drivers announce stops.
·
To improve securement of mobility equipment in
transit vehicles, transit agencies should institute voluntary programs to
install securement straps, if needed, on riders’ wheelchairs and to mark the
wheelchairs’ best securement points.
·
Transit agencies should encourage use of the
fixed-route service by offering incentives such as free or reduced-fare rides
on the fixed-route system, discounts to local venues for fixed-route riders,
and symbolic awards such as tickets and dinner passes for former paratransit
riders who are now using the fixed-route service.
·
Paratransit programs should investigate whether
offering same-day taxi voucher rides in combination with next-day service leads
to reduced costs.
·
Transit agencies should equalize the salary and
benefits of their fixed-route and paratransit drivers as much as possible, and
provide them with the same or similar training components. If possible,
operators should have experience driving in both systems rather than only one.
·
Transit agencies should recognize and
compensate their paratransit managers at a level equal with other management
positions in the agencies.
·
Transit agencies should award contracts
according to best value, not necessarily the lowest bid.
·
Transit operators should communicate information
on elevator outages using a variety of
accessible methods. Examples include a centralized phone system to report
out-of-service elevators, signage at each station to provide information on
elevator service throughout the system, system-wide announcements made over a
public address system when an elevator
goes into or out of service, and sending an e-mail to a list of interested
riders if a particular elevator is out of service.
Recommendations for Independent Transportation Research
·
Document the extensive unmet needs of people
with disabilities for transportation.
·
Document the social and financial benefits of an
accessible, integrated society. For example, when transportation and other
services are not available, institutionalization can be the result, at a high
cost to the individual and society.
·
Document the hidden costs to people with
disabilities of the lack of transportation or of transportation systems that
are not in compliance with the
ADA
.
·
Research best practices in paratransit
contracting.
·
Research the reasons companies purchase
wheelchair-accessible taxis. Are there specific incentives that motivate the
purchase?
·
Document the link between stable transit agency
personnel and the quality of transit service.
III. Public Accommodations (Title III)
Recommendations for Federal Agencies
·
The Department of Justice should devote
substantially more resources and time to investigate Title III complaints,
especially those regarding small businesses, in light of widespread
noncompliance by these covered entities.
·
Key federal agencies and private community
development organizations should convene an experts meeting to explore methods for using various
sources of community development funding—such as the community investment tax,
small business administration loans, Federal Emergency Management Agency (FEMA)
disaster relief funding, and community development block grants—to help bring
about
ADA
compliance changes. This
could be accomplished by requiring
ADA
compliance as a term and condition of funding, which would be supported with
some financial help from the funding agency toward achieving the required
accessibility features and by dedicating specific amounts of money from
development funds to accomplish high-priority barrier-removal projects in the
target communities.
·
Decision makers from key federal agencies
charged with implementing the
ADA
should convene to explore methods to advance the principles of universal design
beyond what is currently being supported by the National Institute on
Disability and Rehabilitation Research (NIDRR).
·
The U.S. Small Business Administration should
establish partnerships with disability organizations and institutions of higher
education to develop and add an ADA Title III training course to its roster of
free online courses for small businesses. The SBA should also be urged to
sponsor local and regional ADA Title III training as an ongoing element of its
national training seminars for small businesses.
·
The SBA should identify methods to ensure that
participants in the SCORE project—retired executives who advise small
businesses—are provided with information about the Title III public
accommodation provisions of the ADA, and incorporate this knowledge and
information when they consult with small business owners and executives.
·
The SBA, in collaboration with participating
lenders, should require
ADA
compliance as a term and condition of eligibility for small business loans. In
concert with this requirement, the SBA should provide additional low-interest
loan assistance to businesses to help them provide the required accessibility
features.
·
The federal agencies that have
ADA
implementation and enforcement roles should join in a collaborative effort to
fund a substantial nationwide
ADA
training initiative for people with disabilities. Training should accomplish
the following:
o
Increase
ADA
awareness in low-income communities.
o
Raise awareness among people from diverse racial
and ethnic backgrounds.
o
Develop advocacy capacity among youth.
o
Increase awareness of the
ADA
’s
potential to increase independence and community participation among seniors.
o
Promote leadership development.
o
Target specific areas in which
ADA
implementation has lagged behind (for example, health care and small
businesses).
·
Each key federal agency charged with a role in
enforcement of the ADA (for example, the Departments of Justice, Health and
Human Services, Education, Labor, and Transportation) should establish a center
of excellence, either within the agency or through a qualified contractor. Each
center’s mission would be to conduct research and collect information about
effective methods of ADA implementation related to the agency’s sphere of
concern, rigorously evaluate the methods to determine their quantifiable impact
on people with disabilities, support activities that will enhance covered
entities’ capacity to collect and report data on implementation activities that
have the potential to become best practice models, and report and widely
disseminate results.
o
NCD should undertake a robust, independent
qualitative and quantitative research project that identifies
ADA
implementation issues related to health care institutions and providers, and
should make recommendations for reform.
o
ADA federal enforcement and allied agencies (for
example, DOJ, the Access Board, NIDRR) should join forces to commission
research (e.g., focus groups, surveys, interviews) designed to elicit
structured responses from a variety of Title III entities about the extent to
which specific technical assistance and informational materials currently
available from DOJ and others provide the ADA implementation guidance these
entities seek. The research should include specific recommendations for
content, formats, and distribution mechanisms that would meet the needs of
these entities.
·
DOJ and the Access Board should convene a work
group composed of businesses, representatives from the disability community,
disability law experts, city building officials, architects, and others with
related knowledge and expertise to evaluate whether the federal interpretive
guidance currently available on methods to comply with the readily achievable
barrier-removal provisions of Title III provides sufficient information and
detail to covered entities, and to determine whether the material should be
revised or expanded. If the work group determines that new material should be
created or the existing material revised, it should submit a detailed
recommendation to that effect to DOJ and the Access Board.
·
Federal agencies charged with
ADA
implementation or ensuring full community participation for people with
disabilities (for example, DOJ, the Access Board, NIDRR, HHS) should form a
consortium to generate funding to commission research on the following general
themes:
o
Identify obstacles and barriers to
implementation of the ADA’s provisions related to programmatic access (for
example, modification of policies and practices, provision of materials and
information in alternative formats, and provision of auxiliary aids and
services) by representative Title III entities such as social service
organizations and health care providers, and recommend solutions.
o
Understand the extent to which the programmatic
access needs of people with disabilities (for example, modification of policies
and practices, provision of materials and information in alternative formats,
and provision of auxiliary aids and services) are being met to enable them to
enjoy or benefit from the programs and services offered by selected Title III
entities such as social service organizations and health care providers, and
recommend solutions.
·
The IRS should allow federal tax credits
available for architectural barrier removal to be used to make existing Web
sites accessible.
Recommendation for Collaboration Among Businesses, the
Disability Community, and Government Organizations and Associations
·
Disability community, government, and other
leaders and experts in accessibility should partner with the following key
organizations to identify legislative, regulatory, and other methods to embed
ADA
information, incentives, and, where appropriate, penalties in interactions they
have with Title III covered entities:
o
National Association of State Fire Marshals:
Marshals tend to be responsible for fire safety code adoption and enforcement,
fire and arson investigation, fire incident data reporting and analysis, public
education, and advising governors and state legislatures on fire protection.
Methods should be identified and implemented that empower fire marshals, when
they conduct routine fire and safety inspections, to inspect businesses and
facilities for ADA-related accessible exits and paths of travel, evacuation
plans, and any other ADA oversight that is relevant to fire safety for people
with disabilities, and to inform the business about any problems.
o
City health departments: Department staff
enforce laws and regulations that protect health and ensure safety. Methods
should be identified and implemented that would empower health department
officials to determine whether sanitary facilities also meet
ADA
accessibility requirements when they conduct routine inspections of businesses
and facilities, and inform the entity about any identified problems.
o
Mortgage and construction lenders: If mortgage
and construction lenders conduct plan reviews or undertake other compliance
oversight as a routine part of processing a loan application for entities that
would be covered by Title III, methods should be identified and implemented
that would require lenders to require compliance with all applicable ADA
requirements as a condition of loan approval for businesses and other covered
entities. Lenders who do not otherwise conduct plan reviews or undertake other
compliance oversight should provide information to prospective Title III
borrowers about the
ADA
. State
mortgage lender associations should adopt model policies on
ADA
compliance oversight and information dissemination that could help guide the
practices of member lenders.
o
Associations of city and county government:
Associations of city and county government—such as the League of Cities,
National Association of Cities, and National Association of Counties—should
provide leadership on the recommended initiatives related to state and local
government by convening meetings with key experts, developing model policies,
supporting any required legislative or regulatory initiatives, and
disseminating information to members.
Recommendations for Business Organizations and Associations
·
Leading business associations such as the U.S.
Chamber of Commerce, Council of Better Business Bureaus, the National
Federation of Independent Businesses, and the National Restaurant Association
should explore initiating a new
ADA
education project with their members. This would involve notifying members
about the
ADA
through mailings; providing information on
their respective Web sites and at conferences and regional and national
meetings; and informing them that the organization can distribute
ADA
implementation materials published by DOJ and other federal agencies upon
request.
·
The Small Business Council of the U.S. Chamber
of Commerce should endorse and support the dissemination of information related
to
ADA
implementation to Chamber
members, and should identify the most effective ways the Council and the
Chamber can engage in member education that comports with its mission and
capacity.
·
To explore the feasibility of creating a
certification or seal of approval program that would indicate that a business
has met its ADA barrier-removal obligations for existing buildings and
facilities, the Council of Better Business Bureaus should convene a working
group of stakeholder representatives, such as neighborhood business networks,
individual small businesses, and representatives from the disability community.
The Council should invite representatives from DOJ and the Access Board, as
well as architects and other technical and policy experts familiar with
barrier-removal issues in existing facilities, to serve as advisors. The group
should be charged with determining the need, benefit to stakeholders, and
feasibility of such a program. If it is determined that the concept should go
forward, the group should recommend possible mechanisms for testing one or more
program ideas in several pilot studies that include methods for evaluating
outcomes. The following questions could serve as a starting point:
o
What is the purpose of the program (for example,
promoting customer service, attracting customers with disabilities, avoiding
liability)?
o
What are the criteria for participation?
o
What is the process for determining whether a
business is eligible to participate?
o
Who would administer the program?
o
What are the qualifications of those who
determine eligibility?
o
What is the frequency and process for renewal?
o
What is the cost of the program, and who pays?
Recommendations for State and Local Government
·
When businesses apply for a new license, or
renewal of an existing business license, they should receive information about
complying with the
ADA
and where to
obtain additional information.
·
When health care professionals apply for a new license,
or renewal of an existing business license, they should receive specific
information about complying with provisions of the
ADA
that relate to health professionals.
·
Cities should make incentives available to small
and medium-sized businesses that want to remove architectural barriers in
existing buildings and facilities by expediting the building permitting and
approval process when the purpose of the project is solely to achieve
accessibility. Locales routinely provide various incentives to businesses as
methods to attract them to a particular neighborhood or prevent them from
leaving; thus, precedent exists for expediting the permit and approval process.
·
States should consider creating a credentialed
access specialist program for expediting the permit and approval process, as
Texas
has done and
California
is in the
process of doing. The program must have rigorous qualification and training
standards, and methods to conduct ongoing evaluation of specialist knowledge
and expertise. Specialists should be required to review and approve
construction drawings when building permits are required, and should be trained
to conduct site inspections and to advise businesses about barriers that can
easily be removed.
·
When a business seeks a permit to undertake a
general renovation, the request should trigger an
ADA
compliance review so the owner will know which, if any, aspects of
ADA
accessibility are required. For example, the City of
Chicago
requires every business to pay a fee for an accessibility review each time an
application is made for a building permit.
·
Entities that contract for services
(e.g., states and cities) should require that entities with which they contract
have accessible Web sites as a requirement to receive contracts.
Recommendations for
Professional
Building
Code, Architecture, and
Related Organizations
The Building Officials and Code Administrators International Inc.
(BOCA), known as the International Code Council (ICC), should amend ICC
International Codes to bar the addition of non-barrier-removal items by
building officials when an entity seeks a permit solely for the purpose of
removing an architectural barrier that prevents the full enjoyment and
participation of individuals with disabilities.
California
has embedded such a requirement in the state access code, which serves as a
model and a precedent.
·
As a condition of ongoing licensing, everyone
involved in design, construction, engineering, landscape architecture,
architecture, and city planning should be required to take universal design
courses that include explanations of access codes and standards, and these
courses should be offered through continuing education programs. Sponsorship
should be provided by state and national trade and member organizations such as
the ICC and the American Institute of Architects (AIA).
·
The AIA should establish a task force empowered
to make recommendations about activities the AIA should undertake to promote
universal design, and ensure that members and others become educated on the
subject, and have access to appropriate and effective resources.
·
The National Architectural Accrediting Board
(NAAB), American Society of Landscape Architects (ASLA), National Association
of Schools of Art and Design (NASAD), and other accreditation bodies should require
that schools they accredit teach a required course on universal design that
includes a component that focuses on accessibility codes and guidelines.
A model for this requirement is the current trend toward requiring
environmentally friendly (“green”) architecture courses as a condition of
accreditation.
Recommendations for Disability Community, Government, and
Business Partnerships
·
Local partnerships made up of community
disability groups and various business associations should regularly recognize
entities that have been especially successful at achieving architectural and
programmatic access by publishing information about them on industry and
community Web sites and in print publications, and by honoring them at public
events attended by their peers.
·
Key organizations concerned with ensuring that
civil rights for individuals with disabilities are protected (for example, DOJ,
American Diabetes Association, The ARC, National Disability Rights Network, and
mental health consumer organizations) should collaborate with certain
businesses (e.g., theaters, stadiums, performance centers, amusement parks) to
create training and informational materials that provide practical, realistic
information and guidance for businesses and entities, dispel stereotypes, and
recommend policies the entities should adopt to guide their conduct if a bona
fide safety risk arises. Policy guidelines must acknowledge that standards for
behavior and conduct will differ according to the context and the situation,
but a process must be set forth for determining whether a risk exists and
whether an accommodation can be provided that will mitigate the risk.
Recommendations for Franchises
·
Organizations such as the American Association
of Franchisees and Dealers (AAFD), a national nonprofit trade association that
defines and promotes quality in franchising practices, and the International Franchise
Association (IFA), which works to increase the knowledge and professional
standards of the franchising community, should work with the disability
community, DOJ, and representative businesses—
o
To include
ADA
implementation obligations in the Fair Franchising Standards created by AAFD
and the Franchise Association Code of Ethics, which is intended to establish a
framework for the implementation of best practices in the IFA’s relationship
with its members. The Fair Franchising Standards provide the basis for
objective accreditation of franchising companies seeking the endorsement of and
membership in AAFD. The Fair Franchising Seal is conferred by AAFD on
franchisors who demonstrate that they meet certain standards.
o
To ensure that all franchisors require that
franchisees with whom they contract meet all applicable
ADA
implementation obligations. These should be spelled out to the extent possible,
and any necessary technical assistance or informational materials—including
facility plans that include
ADA
access features—should be made available when the contract is finalized.
o
To ensure that the annual monitoring carried out
by the franchisor includes a review of
ADA
obligations to verify that the facility is fulfilling its architectural
accessibility requirements and that it is capable of meeting the needs of customers with communication, alternative
format, and other needs.
o
To ensure that a business owner who sells a
franchise or chain company be required to
show in the sales contract that the facility meets all applicable
ADA
accessibility requirements.
Recommendations for Professional Medical Organizations
·
The Association of American Medical Colleges
(AAMC) and the Liaison Committee on Medical Education (LCME) should require
that, in order to gain accreditation, medical schools increase disability
knowledge and programmatic access awareness among prospective health care
professionals by incorporating disability and
ADA
implementation issues and methods into curricula. The AAMC works to ensure that
the structure, content, and conduct of medical education meet the highest
standards, and accreditation by the LCME is required for schools to receive
federal grants for medical education and to participate in federal loan
programs.
·
The
Institute
of
Medicine
of the National Academies should call for the AAMC and the LCME to require that
disability knowledge and
ADA
programmatic access awareness be included in curricula for prospective health
care professionals as a qualification for accreditation.
Recommendations for Entities That Register Internet
Domain Names
·
Entities that register domain names should
provide Web access information to applicants and
a link to World Wide Web Consortium (W3C) information about Web site
accessibility.
·
Entities that register domain names should
require assurances that Web sites that plan to sell goods and services online
will be accessible as a condition of acquiring the domain.
Recommendations for Accreditation Programs and Industry Associations
·
Accreditation programs and industry associations
(for example, the American Association of Museums) should require Web
accessibility as a criterion for membership.
·
Accreditation organizations should require
educational institutions that offer information technology programs to include
disability and Web site accessibility courses as mandatory curriculum
requirements.
Recommendations for Nonpartisan, Independent Research Bodies
·
An independent insurance research body should
commission or undertake a study to determine whether it is feasible for the
insurance industry to offer reduced premiums for certain products (for example, property insurance, business interruption, and liability) as a method
of rewarding ADA implementation. Such research should determine how the
strategy to offer reduced premiums can be implemented and whether such action
is permitted under current state legislative and regulatory schemes or if
amendments would be required to state insurance laws and regulations, and
should make recommendations for achieving this requirement. Research results
should be widely disseminated through industry publications, on the Internet,
and to DOJ.
·
A nonpartisan real estate research body should commission or undertake
research on selected state laws and
regulations governing the sale of commercial property to determine to what
extent they would permit a requirement that those who are selling commercial
property disclose all known areas of
ADA
noncompliance, and should make recommendations for achieving this requirement.
Research results should be widely disseminated through industry publications,
on the Internet, and to DOJ.
IV. Telecommunications (Title IV)
Recommendation for Congress and the Federal Communications
Commission
·
Congress and the FCC should consider regulatory
or legislative actions that include Internet-based providers in the categories
of companies that must contribute to state and interstate relay support to
ensure the viability of relay funding and to distribute costs fairly among all
subscribers of communication services.
·
The introduction of new technologies has
expanded both the need and the role of equipment distribution programs. Now,
along with relay users, other people with disabilities often need specialized
equipment to obtain access to technology and telecommunications. Because this
means that more people are competing for limited state funds, new funding
sources need to be identified. Disability advocates are interested in making
universal service funding available to subsidize
the cost of the expensive specialized customer premises equipment (SCPE) that
is needed by people with disabilities to access broadband technologies. Such “broadband
bucks” would allow these people to select the accessible equipment they need to
accommodate their specific disabilities.
·
Congress should amend the Communications Act or
the FCC should initiate a rule change regarding its provisions governing
universal access. As people with disabilities migrate from the public switched
telephone network to Internet-based text and video communications, state
utility regulators should allow universal service subsidies that are used to
defray the high costs of telephone service for low-income people—such as
subsidies available under the Lifeline program (which provides a monthly
discount for telephone service) or the Link-Up program (which provides a
discount for initial telephone connection charges)—to help defray the costs of
broadband service.
Recommendations for Federal Agencies
·
The FCC should accelerate approval for new relay
technologies and should establish clear guidelines to govern new technologies
when they are approved.
·
Rather than deal with new technologies on a
piecemeal basis, the FCC should look at the big picture and chart a
forward-looking course for telecommunications relay services (TRS) over the
next 5–10 years that considers new mainstream technologies and that drives
decisions that responds to these innovations. The communication technology that
relay users now need and want is melding with the technology desired by
mainstream consumers, such as videoconferencing, VoIP services, and enhanced
multimedia that provides text and video. It is important to get on the
technology bandwagon to ensure that people with disabilities become players in
the development of mainstream technologies.
·
The FCC should supplement the current TRS
complaint procedure, which requires consumers to first bring complaints to the
states and then—only after 180 days—to the FCC, with new procedures for
Internet-based calls. This would be consistent with the FCC’s new certification
process for Internet-based and video relay service (VRS) providers.
·
The FCC should develop a reliable and consistent
funding methodology to ensure the stability of VRS, as well as all other types
of TRS. The funding mechanism currently used by the FCC for interstate relay
services—especially VRS—has been in a state of flux since 2003.
·
Additional oversight of Internet-based relay
services is needed, either through a new structure at the FCC or through a new
federal-level advisory body that can monitor Internet relay activity and
provide regular feedback to the FCC on the need for revisions to the agency’s
relay standards.
·
Greater efforts need to be made to prosecute
individuals who misuse Internet relay services. In the nonrelay context, when
fraud is committed by telephone, law enforcement officials can obtain subpoenas
that allow them to secure the telephone records of the alleged perpetrators.
The same can be done here. At the same time, because the communication
assistants (CAs) in these situations are mere conduits for relay conversations,
care must be taken not to break the transparency of relay calls. The FCC
currently has an open rulemaking proceeding to explore the most effective ways
of curbing Internet relay misuse.
·
Technical solutions are needed to automate the
identification of the location of someone initiating an Internet-based relay
call. This will help deter abuse, facilitate calls to 911, and permit accurate
billing. The FCC should track these technical developments so they can be
implemented as this function becomes available.
·
An FCC rule change may be needed to require
connections for outgoing and incoming relay calls that are automated to the
same extent as those for conventional voice telephone calls. The technology for
automatic connections through all relay modalities already exists but is not
mandated by the FCC.
·
The FCC has an open proceeding to determine how
VRS and Internet text-based providers can best handle incoming emergency calls.
At the same time, the Department of Transportation has been designated the
point agency for the development and testing of next-generation technology for
911. The two agencies should coordinate with one another to ensure that relay
providers are able to accept and swiftly connect incoming calls with
appropriate public safety answering points.
·
An FCC rule change would be needed to enable all
relay users to automatically and simultaneously be connected to both the relay
service and the party they are trying to reach at the time they dial that
party, so they do not need to dial the relay service first. Not having to first
dial a relay number before reaching the desired party would save time and
resources for both the caller and the relay service
·
The FCC should clarify that all relay calls must
be handled and are eligible for compensation from the Interstate TRS Fund, even
when more than one type of relay service is needed to complete the call.
·
Petitions requesting the FCC to mandate
captioned telephone relay service and approve an Internet version of this
service (filed on October 31, 2005) should be granted, because a far greater
number of individuals will be able to receive functionally equivalent telephone
services. Internet-based captioned telephone relay services also would eliminate
the need for separate captioned telephone equipment, because users simply would
be able to install software on their computers to access these services.
·
The FCC should approve a global database for
proxy numbers. Each Internet-based relay customer should be given a single
number that can be used to receive Internet-based calls through all relay
providers. Such a universal approach to numbering—by which the assigned number
would be neutral with respect to both the provider and the equipment the
customer uses—is commonplace for conventional telephone users. Although
telephone subscribers have different local exchange companies that provide
their service and telephone wiring, the telephone number that each person is
assigned is used to receive calls through any telephone company. Universal
numbering is especially important in emergencies such as hurricanes, where
consumers cannot rely on a single provider to receive incoming calls. The FCC
currently has an open rulemaking proceeding to address the need for a global
database of proxy numbers that can be used to connect hearing individuals to
their dynamic IP or VRS calling destinations.
·
The FCC should issue standards to ensure
standard interpreter qualifications across providers. One way of evaluating is
to use qualified interpreters and deaf relay consumers to assess the ability of
video relay interpreters to effectively facilitate communication. While some,
if not most, VRS providers already require compliance with minimum
certification standards or test interpreters to assess the effectiveness of
their signing, voice presentation, finger spelling, and so on, FCC standards
are needed to ensure consistency across providers. VRS stakeholders also report
that it would be helpful for them to be able to receive some type of feedback
during calls (for example, through captions) that would let them know what the
interpreters are voicing, to build trust in the interpreter’s ability.
·
The FCC should establish a mechanism whereby
consumers can contact an Internet-based relay provider when they have a
complaint about that provider or wish to report relay misuse. One way of
enabling consumers to identify the provider on any given relay call is to
assign each provider a series of unique numbers for each of its CAs. For
example, Sprint could be given the 1000 series of numbers, Verizon the 2000
series, MCI the 3000 series, and so on. That way, the employer of every CA
could be easily identified by the enforcing agency.
·
DOJ, the Access Board, and agencies concerned
with digital and communication security should amend the Title II and Title
III/ADAAG guidelines to address the problem of the use of firewalls for security,
which can inadvertently block VRS calls. Businesses and
government agencies need to have an accessibility guideline that requires them
to make video communications possible when they use firewalls. If there is an ADAAG guideline on this matter, technology will be
designed to fix this dilemma. In the meantime, employers should obtain a
separate broadband line that can be opened for VRS users.
Recommendations for Telecommunications Carriers
·
The telecommunications companies could establish
a national nonprofit organization to advance the
use of speech-to-speech (STS) relay. (One such organization, Speech
Communication Assistance by Telephone, Inc. (SCAT), provides general education
and training in assistive technology for people with disabilities.)
·
Vendors should videophone equipment in public
areas frequently visited by people who are deaf, such as in dormitories and
activity rooms in residential schools for the deaf, vocational rehabilitation
offices, and community service centers for the deaf (such as the California
Coalition of Agencies Serving the Deaf). At the latter sites, people who are
deaf or hard of hearing also can make arrangements to acquire
telecommunications equipment through state distribution programs. At all the
locations, people who cannot afford the high-speed connectivity needed for
direct access to videophones can follow up on business related to the services
provided at these locations, seek advocacy services related to ADA-related
complaints, or use the phones for other purposes.
·
State relay administrators and relay service
providers should instruct communications assistants (CAs) to be more patient
with deaf-blind callers, who, because they use refreshable Braille, often read
more slowly than other relay users. In addition, CAs should be permitted to
instruct call recipients about the caller’s needs and the fact that the call
may take a bit longer to complete. Technologies that may enable tactile
communication over the Internet through robots are being explored and could
facilitate access in the future for people who are deaf-blind.
Recommendation for State Equipment Distribution Programs
·
State equipment distribution programs need to
take a harder look at the needs of the consumers they serve. These programs
should reevaluate the scope of their offerings in light of new computer,
electronic, and Internet-based technologies, and should allow consumers to
trade in their equipment sooner. One state that has already made some of these
changes is
Missouri
; in 2000, it
began distributing adaptive computer equipment for access to the Internet and
e-mail. Finally, state programs should coordinate with one another to ensure
that they are consistent and uniform in providing the best options for relay
consumers.
Recommendations for State
Relay Administrators and State Relay Service Providers
·
The underutilization of speech-to-speech (STS)
relay services can be reversed by identifying and training potential STS users.
Training of this type, which typically takes three hours in the person’s home,
must be done on a one-on-one basis.
·
States should release information about STS call
volume so consumers can determine where outreach is needed. In the past, some
states have been reluctant to give out this information; for example, in a 2006
call volume study, only 26 states provided this information.
·
State relay administrators, state relay service
providers, and other telecommunications providers should educate businesses
about how and where to report Internet relay misuse. This can be done in part
through programs such as
Maryland
’s
relay partner program, which educates businesses about the functions and
purposes of relay services.
·
State relay administrators, state relay service
providers, and other telecommunications carriers should identify and implement
methods to educate the general public and,
in particular, business establishments about the purpose and function of relay
services to put an end to the resistance coming from the business community.
V. Disability Community
Recommendations for Federal Agencies
·
Federal agencies that have
ADA
implementation and enforcement roles should join in a collaborative effort to
fund a substantial nationwide
ADA
training initiative for people with disabilities.
·
DOJ should step up its enforcement efforts in
rural communities. Using Project Civic Access as a model, DOJ should initiate
compliance activities in selected small towns and rural areas that are tailored
to the needs and stated goals of the disability communities in these areas.
·
Federal agencies charged with ADA implementation
and enforcement should create a rural monitoring and enforcement project in
collaboration with regional DBTACs, protection and advocacy organizations,
local disability organizations, individual leaders with disabilities, and civic
and community leaders. The goal would be to identify and test effective methods
for achieving
ADA
implementation in
small towns and rural areas that could be publicized and replicated.
Recommendation for Collaboration Between Government Agencies
and Disability Community Organizations
·
Key agencies and organizations concerned with
disability policy (for example, DOJ, the National Disability Rights Network,
mental health consumer organizations) should create training and informational
materials that provide practical, realistic information and guidance for
specific public safety entities (e.g., police, sheriffs, firefighters), and
that dispel stereotypes. The key organizations should recommend policies the
entities should adopt that would guide their conduct in situations involving
individuals with disabilities, especially psychiatric disabilities. Policy
guidelines must acknowledge that standards for behavior and conduct differ
according to the context and the situation, but a process must be set forth to
determine whether a risk exists and whether an accommodation can be provided
that will mitigate the risk.
Recommendation for Joint Projects Between
Regional
ADA & IT
Technical
Assistance
Centers
and State Protection and Advocacy Organizations
·
Regional
ADA & IT
Technical
Assistance
Centers
and state Protection and Advocacy organizations should develop a model project
by collaborating with disability organizations and individuals with
disabilities from selected small towns and rural areas to develop an education
and information campaign that promotes public awareness and accessibility. One
key strategy would be to distribute targeted ADA materials to the public—for
example, libraries, job training centers, hiring programs, and unions—and
include ADA information with all business transactions and local business tax
invoices involving licensing, building and
occupancy permits, business permits, and inspections. (See related
recommendations for urban areas in the section on Title III.)
VI. Culturally Diverse Community
Recommendations for Federal Agencies and Departments
·
The Department of Justice should dedicate
additional resources for developing culturally competent information materials
on the
ADA
and should support
development of culturally competent outreach activities.
·
The National Institute
on Disability and Rehabilitation Research should establish a program similar to the regional
ADA
and IT Centers but focused on culturally competent outreach and technical
assistance to culturally diverse communities. The goal of these new centers
would be to enhance culturally diverse covered entities’ capacity to implement
the
ADA
. With support from and
collaboration with local community leaders and organizations, the centers would
conduct outreach and provide technical assistance, information, and training to
small businesses and organizations in their project area.
Recommendations for Collaboration Between the Disability and
Culturally Diverse Communities, including Businesses
·
Disability advocates associated with local
independent living centers and other disability organizations should research
and initiate contact with leaders in the community and discuss local needs from
both perspectives.
·
Disability advocates, with the assistance of
local leaders, should contact local chambers of commerce, merchant
associations, and social service clubs in their communities and build
partnerships for outreach and education.
·
In conducting outreach to culturally diverse
communities, disability advocates and organizations should use popular local
media outlets that target those communities.
Recommendation for Collaboration Between Federal Agencies and
Private Community Development Organizations
·
Key federal agencies and private community
development organizations should convene an experts meeting to explore methods for using various
sources of community development funding—such as the community investment tax,
Small Business Administration loans, Federal Emergency Management Agency
disaster relief funding, and community development block grants—to help bring
about
ADA
compliance changes. This
could be accomplished by requiring
ADA
compliance as a term and condition of funding, which would be supported with
some financial help from the funding agency toward achieving the required
accessibility features and by dedicating specific amounts of money from
development funds to accomplish high-priority barrier-removal projects in the
target communities.
Recommendation for Collaboration Among Disability Groups,
Businesses, and Elected Officials
·
Local partnerships made up of community
disability groups, local business associations, and elected officials should
regularly recognize entities that have been especially successful at achieving
architectural and programmatic access by publishing information about them on
community Web sites and in publications, and by honoring them at public events
attended by their peers.
Recommendations for Disability Community Organizations and
Advocates
·
The leaders of local independent living centers
and other disability organizations should seek out leaders in culturally
diverse neighborhoods to hold discussions on
ADA
implementation and to understand the needs of citizens and businesses. The
objective is to raise awareness about important cultural traditions that may
affect perceptions of disability, to inform leaders about the benefits of the
ADA
,
and to build partnerships that provide mutual benefit for the disability and
culturally diverse communities. The goals are for local leaders to demonstrate
that the
ADA
can be implemented in
a meaningful way in their communities, to promote implementation, and to serve
as a model for others.
·
Local
independent living centers and other disability organizations should seek out
individuals from culturally diverse backgrounds to mentor people with disabilities.
·
For
ADA
implementation to remain a
priority in the community, disability advocates must make regular informational
visits to state and regional public office holders, especially caucuses
dedicated to specific diverse communities.
VII. Legal and Enforcement Tools—Class Actions and
Settlements
Recommendations for Title III Stakeholders
·
The accessibility requirements of civil rights
law must be publicly broadcast, acknowledged, and respected at the same level
as other applicable regulations and laws, and equally acknowledged as a
make-or-break issue in running a business. When business and industry
associations work together to foster the idea that the law is unfair and lobby
for legislative change that will weaken the private right of action overall, they
are not doing their constituents any favors and certainly are harming the
prospect for achieving voluntary Title III compliance.
·
Title III compliance cannot depend only on
voluntary compliance from those few business owners who are motivated by a
personal familiarity with disability or the determination to do the right thing
legally and ethically, regardless of the cost. Nor can compliance depend only
on litigation and the minority of people with disabilities who are willing and
able to bring lawsuits. If private litigation remains virtually the only means
of external enforcement motivating business compliance with Title III, it will
likely continue to bear the brunt of public backlash and industry lobbying.
Widespread Title III compliance cannot be achieved without business and public
outreach, a visible and efficient administrative enforcement procedure, the
wide availability of qualified accessibility expertise, and economic incentives
such as tax and other credits.
Legal and Enforcement Tools—Private Right of Action
Recommendations for Congress
·
Congress must enact legislation that effects a
statutory repair of Buckhannon’s
condition of a “judicially sanctioned” change in the parties’ relationship for
the recovery of attorney fees under Title III, so that attorney fee-shifting
rules will apply if a Title III plaintiff or would-be plaintiff has been the
catalyst for a public accommodation’s coming into compliance with its Title III
obligations.
·
Congress must make compensatory damages
available under Title III.
·
Congress must establish a statutory minimum
damages amount for the denial of access rights under Title III.
Legal and
Enforcement Tools—Class Actions and Settlements
Recommendations for Legal Advocates
·
Continue monitoring for abuse, but also explore
any possibility for strengthening the current system by creating at least the
possibility of recovering attorney fees for raising reasonable objections to
national and regional class action settlements.
·
Encourage education of and intervention by DOJ
and state attorney generals in states where citizens with disabilities would be
adversely affected by these settlements. This option is especially reasonable
to explore given the new Class Action Fairness Act (CAFA) provisions requiring
notice to “appropriate” state officials with the settlement of federal class
actions.
·
Consider ways to link the CAFA notice provisions
to state and federal officials to actual notice to cross-disability groups with
a legal component and to Protection and Advocacy agencies in all affected
states
·
Educate the judiciary on the need for vigilance
concerning national
ADA
class
settlements that would allow public accommodations to avoid or water down ADAAG
requirements and bind an overly broad class of people with disabilities to a
settlement that gives many of them inadequate or no relief
·
Disseminate information about the structured
negotiation approach and its possibilities for avoiding the inefficiencies of
initiating and sustaining a litigious approach to enforcing Title III against corporate
defendants that operate multiple public accommodations.
Appendix G –
Mission
of
the National Council on Disability
Overview and Purpose
The National Council on Disability
(NCD) is an independent federal agency with 15 members appointed by the
President of the
United States
and confirmed by the U.S. Senate. The purpose of NCD is to promote policies,
programs, practices, and procedures that guarantee equal opportunity for all
individuals with disabilities regardless of the nature or significance of the
disability and to empower individuals with disabilities to achieve economic
self-sufficiency, independent living, and inclusion and integration into all
aspects of society.
Specific Duties
The current statutory
mandate of NCD includes the following:
·
Reviewing and evaluating, on a continuing basis,
policies, programs, practices, and procedures concerning individuals with
disabilities conducted or assisted by federal departments and agencies,
including programs established or assisted under the Rehabilitation Act of
1973, as amended, or under the Developmental Disabilities Assistance and Bill
of Rights Act, as well as all statutes and regulations pertaining to federal
programs that assist such individuals with disabilities, to assess the
effectiveness of such policies, programs, practices, procedures, statutes,
and regulations in meeting the needs of individuals with disabilities.
·
Reviewing and evaluating, on a continuing basis,
new and emerging disability policy issues affecting individuals with
disabilities in the Federal Government, at the state and local government
levels, and in the private sector, including the need for and coordination of
adult services, access to personal assistance services, school reform efforts
and the impact of such efforts on individuals with disabilities, access to
health care, and policies that act as disincentives for individuals to seek and
retain employment.
·
Making recommendations to the President,
Congress, the Secretary of Education, the director of the National Institute on
Disability and Rehabilitation Research, and other officials of federal agencies
about ways to better promote equal opportunity, economic self-sufficiency,
independent living, and inclusion and integration into all aspects of society
for Americans with disabilities.
·
Providing Congress, on a continuing basis, with
advice, recommendations, legislative proposals, and any additional information
that NCD or Congress deems appropriate.
·
Gathering information about the implementation,
effectiveness, and impact of the Americans with Disabilities Act of 1990 (
ADA
)
(42 U.S.C. § 12101 et seq.).
·
Advising the President, Congress, the
commissioner of the Rehabilitation Services Administration, the assistant
secretary for Special Education and Rehabilitative Services within the
Department of Education, and the director of the National Institute on
Disability and Rehabilitation Research on the development of the programs to be
carried out under the Rehabilitation Act of 1973, as amended.
·
Providing advice to the commissioner of the
Rehabilitation Services Administration with respect to the policies and conduct
of the administration.
·
Making recommendations to the director of the
National Institute on Disability and Rehabilitation Research on ways to improve
research, service, administration, and the collection, dissemination, and
implementation of research findings affecting people with disabilities.
·
Providing advice regarding priorities for the
activities of the Interagency Disability Coordinating Council and reviewing the
recommendations of this council for legislative and administrative changes to
ensure that such recommendations are consistent with NCD’s purpose of promoting
the full integration, independence, and productivity of individuals with disabilities.
·
Preparing and submitting to the President and
Congress an annual report titled National
Disability Policy: A Progress Report.
International
In 1995, NCD was designated by the
Department of State to be the
U.S.
government’s official contact point for disability issues. Specifically, NCD
interacts with the special rapporteur of the United Nations Commission for
Social Development on disability matters.
Consumers Served and Current Activities
Although many government agencies
deal with issues and programs affecting people with disabilities, NCD is the
only federal agency charged with addressing, analyzing, and making
recommendations on issues of public policy that affect people with disabilities
regardless of age, disability type, perceived employment potential, economic
need, specific functional ability, veteran status, or other individual
circumstance. NCD recognizes its unique opportunity to facilitate independent
living, community integration, and employment opportunities for people with
disabilities by ensuring an informed and coordinated approach to addressing the
concerns of people with disabilities and eliminating barriers to their active
participation in community and family life.
NCD plays a major role in
developing disability policy in
America
.
In fact, NCD originally proposed what eventually became
ADA
.
NCD’s present list of key issues includes improving personal assistance
services, promoting health care reform, including students with disabilities in
high-quality programs in typical neighborhood schools, promoting equal
employment and community housing opportunities, monitoring the implementation
of
ADA
, improving assistive
technology, and ensuring that people with disabilities who are members of
diverse cultures fully participate in society.
Statutory History
NCD was established in 1978 as an
advisory board within the Department of Education (P.L. 95-602). The
Rehabilitation Act Amendments of 1984 (P.L. 98-221) transformed NCD into an
independent agency.
[1]
Fifty-seven individuals concerned with ADA Title I implementation identified
and discussed specific issues from their different perspectives. These issues
formed the basis for identification of specific recommendations that are
intended to improve
ADA
implementation and additional research that is needed. Participants represented
a variety of types of entities and organizations covered by Title I. Included
were state and local government employers, as well as private employers,
including representatives from health care, public utilities, software
companies, museums, banks, insurance companies, and nonprofit organizations.
Also included were plaintiff and defense attorneys, and representatives from
the Society for Human Resource Management (SHRM), state employment development
departments, state vocational rehabilitation agencies, unions, the Equal
Employment Opportunity Commission (EEOC), Disability and Business Technical
Assistance and Assistive Technology Centers, the Protection and Advocacy
system, governors’ committees on employment of people with disabilities,
chambers of commerce (U.S., regional, and local), disability community leaders
and representatives of key disability organizations, job developers, and
training program representatives.
[2]
Fall of 2006 ODEP sponsored the first national conference on mentoring youth
with disabilities.
Boston
,
MA
.
[3]
Cal.
Gov't. Code §12950.1.
[4]
The Stakeholder Dialogue on ADA Transportation took place April 5–6, 2006, in
Washington
,
DC
, at the offices of the Federal Transit
Administration (FTA), part of the U.S. Department of Transportation (DOT).
There was representation from every
stakeholder sector in the field of
ADA
transportation: public transportation providers including bus, rail, and
paratransit, and their trade associations; private transportation providers and their trade associations;
government officials and staff from regulatory agencies; researchers; and
advocacy organizations, both rural and urban.
[5]
Melton v.
Dallas
Area Rapid Transit (DART), 391 F.3d 669
(5th Cir. 2004).
[6]
Title III of the
ADA
describes the
prohibitions against discrimination by privately operated public
accommodations, commercial facilities, and private entities offering certain
examinations and courses.
[7]
Ninety-six stakeholders identified and discussed specific issues related to ADA
Title III implementation from their different perspectives. These issues formed
the basis for identification of key recommendations aimed at improving
ADA
implementation, and additional research that is needed. Participants
represented a variety of types of entities and organizations covered by Title
III. Included were representatives of business trade associations; architects,
planners, and building officials; covered entities such as restaurants,
theaters, hotels, motels, stadiums, health care facilities and health plans,
museums, banks, and YMCAs; neighborhood business associations and chambers of
commerce (U.S. and local); defense and plaintiff attorneys; disability
community leaders and representatives of key disability organizations; and
representatives from various units of local government, the Department of
Justice Disability Rights Section, and the Disability and Business Technical
Assistance and Assistive Technology Center.
[9]
Thirty stakeholders participated in the Stakeholder Dialogue on
Telecommunications, including relay consumers, representatives of consumer
organizations, relay providers, and representatives from states and from the
Federal Communications Commission. Consultants with extensive experience
working with both consumers and industry interests on relay issues over the
past two decades were also present.
[10]
At a meeting dedicated to emergency access held the day after the Title IV
Stakeholder Dialogue and attended by many of the stakeholders present at the
Title IV dialogue, efforts to foster such collaboration were initiated.
[11]
Two types of relay services now permit a transparent and automatic connection
to relay users without the use of any extraneous relay numbers. The first of
these is two-line captioned telephone service, which simultaneously directs all
incoming calls to both the captioned telephone recipient and the CA. The second
is a wireless relay service by which a relay provider assigns customers
individual phone numbers. The customer then arranges with the relay provider
for this number to be linked with AOL’s instant messaging service. When the
hearing person dials the assigned telephone number, the CA comes on the line
and attempts to make an instant messaging connection. In the event there is no
answer, the hearing person receives what appears to be a voicemail request from
the CA. Specifically, the CA informs the calling party, “Your party is not
answering; would you like to leave a message?” Once the message is provided,
the CA sends it to the relay user’s e-mail address, which reaches the
recipient’s computer or wireless pager.
[12]
Bob Segalman, founder of STS, challenged the dialogue participants to find a
single person in each state to help lobby state public utility commissions to
train consumers in this fashion.
[13]
One such organization—Speech Communication Assistance by Telephone, Inc.
(SCAT)—was incorporated by Bob Williams in 1990 to provide general education
and training in assistive technology for people with disabilities. In 2005,
SCAT redirected its mission to focus on providing community training and
outreach needed to help potential STS users access these services. SCAT intends
to obtain statistical data on STS use through a national survey, work with
independent living centers to identify and train consumers, educate consumers
and professionals at disability conferences and conventions, and disseminate
information about STS through its Web site, www.speechtospeech.org.
[14]
As this report was going to press, the FCC issued a rule on internet-based
captioned telephone service. See, Telecommunications Relay Services and Speech-to-Speech Services for Individuals
with Hearing and Speech Disabilities, Docket No. 03-123.
[15]
Fifty-eight disability community members participated in two stakeholder
dialogues for people with disabilities. They identified and discussed key
ADA
implementation issues, which are presented and discussed in this report, and
made recommendations for improving implementation from their perspectives. The
dialogues included cross-disability representation as well as participation by
individuals from diverse regions and fields of work and interest.
[16]
The
National
Judicial
College
in
Reno
has provided judicial education and professional development for the nation’s
judiciary, and for judges from other countries, for 42 years. NJC is the top
judicial training institution in the
United
States
; it has awarded more than 70,000
professional judicial education certificates since 1963. The institution offers
an average of 90 courses annually. These are held onsite, around the country,
and internationally, with more than 2,700 judges enrolling from all 50 states,
U.S.
territories, and more than 150 countries. Programs offered at NJC are designed
to give participants the practical tools they need to serve effectively on the
bench.
[17]
In fact, the group was generally correct in its assumption. The states
represented in the focus group all had laws aimed at preventing disability
discrimination that raised the concept of reasonable
accommodations/modifications, though they differ in varying degrees from the
ADA and one another in specifics such as their definition of disability, scope
of coverage, exemptions, enforcement, and remedial provisions.
For applicable employment provisions, see Ind. Code §22-9-5-1 et seq. (Employment Discrimination
Against Disabled People); Ind. Code §§16-32-3-1 to –5 (Rights of Blind and
Other Physically Disabled People); Ind. Admin. Code tit. 910, r. 1-1.5-1 et seq. (Civil Rights Commission);
Ky.
Rev. Stat.§344.010 et seq. (Civil
Rights Act);
Ky.
Rev. Stat. Ann. §207.130 et seq. (Equal Opportunities Act); 104
Ky.
Admin. Regs. 1:020 et seq.
(Commission on Human Rights);
La.
Rev. Stat. §23:301 et seq. (Employment Discrimination Law);
La.
Rev. Stat. §51:2231 et seq. (
Louisiana
Commission on Human
Rights);
Nev.
Rev. Stat. §233.010 et seq. (Equal Rights Commission);
Nev.
Rev.
Stat. §613.310 et seq. (Equal
Opportunities for Employment);
Nev.
Rev. Stat. § 426.005 et seq. (People with Disabilities);
Nev.
Admin. Code ch. 233, §233.002 et seq.
(Equal Rights Commission); N.D. Cent. Code §14-02.4-01 et seq. (Human Rights Act); N.D. Cent. Code §§25-13-01 to –05
(Blind and Disabled People’s Activities); Ohio Rev. Code Ann. §4112.01 et seq. (Civil Rights Commission);
Ohio
Admin. Code §4112-5-08 (Discrimination in the Employment of the Disabled);
Okla.
Stat. tit. 25, ch. 21, §1301 et seq.
(Discrimination in Employment);
Okla.
Admin. Code §335:15-9-1 to –4 (Interpretive Guidelines on Discrimination
Against the Handicapped);
Okla.
Admin. Code §340:1-11-1 et seq.
(Civil Rights and Nondiscrimination on Basis of Race, Color, National Origin,
Sex, Age, Religion, or Disability); 43 Pa. Cons. Stat. §951 et seq. (Human Relations Act); 16 Pa.
Code §44.1 et seq. (Discrimination on
the Basis of Handicap or Disability); Va. Code Ann. §51.5-1 et seq. (Virginians with Disabilities
Act); Va. Code Ann. §2.2-3900 to –3902 (Human Rights Act); 22 Va. Admin. Code
§25-10-10 et seq. (Regulations to
Safeguard Virginians’ Human Rights from Unlawful Discrimination).
For applicable Public Services provisions, see Ind. Code §22-13-1-1 et seq. (Labor and Industry Safety); Ky.
Rev. Stat. Ann. §198B.010 et seq.
(Building Code); Ky. Rev. Stat. Ann. §344.010 et seq. (Civil Rights Act); La. Rev. Stat. Ann. §40:1731 et seq. (Equal Access to Governmental
and Public Facilities for Physically Handicapped); La. Rev. Stat. Ann. §46:1953
(White Cane Law); §46:2251 et seq.
(Civil Rights Act for Handicapped People); Nev. Rev. Stat. §338.180 et seq. (Accommodation of physically
handicapped or disabled people); Nev. Rev. Stat. §426.005 et seq. (People with Disabilities); N.D. Cent. Code §14-02.4 et seq. (Human Rights Act) and §48-02 et seq. (Public Buildings); N.D. Cent.
Code §54-21.3-04.1 (
State
Building
Code [Accessibility Standards]); Ohio Rev. Code Ann. §3781.111 (Building
Standards);
Okla.
Admin Code §335:10-1-1 et seq. (Enforcement of
Anti-Discrimination Act);
Okla.
Stat. tit. 61, §§11 & 12 (
Public
Buildings
and Public Works); 61
Pa.
Cons. Stat. §1455.1 et seq. (Grounds, Buildings and
Facilities); 43
Pa.
Con. Stat. §963 et seq. (Human Relations);
Va.
Code Ann. §51.5-1 et seq. (Virginians
with Disabilities Act).
For applicable provisions relating to Public
Accommodations, see Ind. Code
§§16-32-3-1 to –5 (Rights of Blind and Other Physically Disabled People); Ind.
Code §22-9-1-1 et seq. (Civil Rights
Act);
Ind.
Admin. Code tit. 910,
r. 1-1.5-1 et seq. (Civil Rights
Commission);
Ky.
Rev. Stat.§344.010 et seq. (Civil Rights Act);
Ky.
Rev. Stat.
Ann. §207.130 et seq. (Equal
Opportunities Act); 104
Ky.
Admin. Regs. 1:020 to :100 (Commission on Human Rights); La. Rev. Stat.
§51:2231 et seq. (Louisiana
Commission on Human Rights); La. Rev. Stat. Ann. §49:146 (Use of Buildings);
La. Rev. Stat. Ann. §46:1953 (White Cane Law); La. Rev. Stat. Ann. §21:52
(Hotels and Lodging Houses – Offenses by Guests); La. Rev. Stat. Ann. §40:1631 et seq. (Building Regulations); Nev.
Rev. Stat. §233.010 et seq. (Equal
Rights Commission); Nev. Rev. Stat. §426.005 et seq. (People with Disabilities); Nev. Rev. Stat. §651.050 et seq. (Equal Enjoyment of Places of
Public Accommodation); Nev. Admin. Code ch. 447, §010 et seq. (Public Accommodations); N.D. Cent. Code §14-02.4-01 et seq. (Human Rights Act); N.D. Cent.
Code §§25-13-01 to –05 (Blind and Disabled People’s Activities); N.D. Cent.
Code §54-21.3-01 to -08 (
State
Building
Code);
Ohio
Rev. Code Ann. §4112.01 et seq. (Civil Rights Commission);
Ohio
Rev.
Code Ann. §4112.1 et seq. (Civil
Rights Commission – General Provisions);
Ohio
Rev. Code Ann. §3781.111 (Building Standards); Stat. tit. 25, §1101 et seq. (Anti-Discrimination Act);
Okla.
Admin. Code §335:10-1-1 et seq.
(Enforcement of the Anti-Discrimination Act);
Okla.
Stat. tit. 7, §19.1 (Services to the Blind); 43 Pa. Cons. Stat. §951 et seq. (Human Relations Act); 35 Pa.
Cons. Stat. §7210.101 et seq.
(Construction Code Act); 71 Pa. Cons. Stat. §1455.1 et seq. (Grounds, Buildings and Facilities); 16 Pa. Code §44.1 et seq. (Discrimination on the Basis of
Handicap or Disability); Va. Code Ann. §51.5-1 et seq. (Virginians with Disabilities Act); Va. Code Ann. §2.2-3900
to –3902 (Human Rights Act); 22 Va. Admin. Code §25-10-10 et seq. (Regulations to Safeguard Virginians’ Human Rights from
Unlawful Discrimination).
For applicable housing provisions, see Ind. Code §22-9.5-1-1 et
seq. (Fair Housing); Ind. Code §22-9-6-1 to –6 (Equal Access to Housing for
People with Disabilities);
Ind.
Admin. Code tit. 910, r.2-1-1 et seq.
(Fair Housing Complaints);
Ky.
Rev. Stat.§344.010 et seq. (Civil Rights Act);
Ky.
Rev. Stat. Ann. §207.130 et seq.
(Equal Opportunities Act); 104
Ky.
Admin. Regs. 1:020 et seq.
(Commission on Human Rights);
La.
Rev. Stat. Ann.
§41:2601 et seq. (Equal Housing Opportunity
Act);
Nev.
Rev. Stat. §233.010 et seq. (Equal Rights Commission);
Nev.
Rev.
Stat. §118.010 et seq. (Fair Housing
Law);
Nev.
Admin. Code ch. 233,
§233.002 et seq. (Equal Rights
Commission); N.D. Cent. Code §14-02.5-01 et
seq. (Housing Discrimination);
Ohio
Rev. Code Ann.
§4112.01 et seq. (Civil Rights
Commission);
Ohio
Admin. Code
§§4112-6-01 to-04 (Housing Discrimination);
Okla.
Stat. tit. 25, §1101 et seq.
(Discrimination);
Okla.
Admin.
Code §335:20-1-1 et seq.
(Interpretive Guidelines on Housing Discrimination);
Okla.
Admin. Code §340:1-11-1 et seq.
(Civil Rights and Nondiscrimination on Basis of Race, Color, National Origin,
Sex, Age, Religion, or Disability); 43 Pa. Cons. Stat. §951 et seq. (Human Relations Act); 16 Pa.
Code §45.1 et seq. (Housing
Accommodations/Commercial Property); Va. Code Ann. §36-96.1 et seq. (Fair Housing Law); Va. Code
Ann. §2.2-3900 to –3902 (Human Rights Act); Va. Code Ann. §51.5-1 et seq. (Virginians with Disabilities
Act); 18 Va. Admin. Code §135-50-200 (Fair Housing Regulations); 22
Va.
Admin. Code §25-10-10 et seq.
(Regulations to Safeguard Virginians’ Human Rights from Unlawful
Discrimination).
[19]
Pei-Shu Ho, Center for Health and Disability Research, National Rehabilitation
Hospital, The Impact of the Minnesota Disability Health Options Program on the
Health Care Experiences of People with Physical Disabilities in Minneapolis/St.
Paul: Preliminary Longitudinal Survey Findings, 5 (2004).
[20]
Office of Disability Employment
Policy
,
U.S.
Department of Labor on Youth Leadership Forums:
The goal of this project is to
assist states in developing youth leadership training for high school students
with disabilities. Based on a highly successful program of Youth Leadership
Forums (YLF) in
California
, the
long-term goal of the program is to replicate this training in all 50 states.
Currently, there are active YLF programs in 21 states, the
District
of Columbia
, and
Puerto Rico
. An additional
13 states have convened YLF planning groups.
See www.dol.gov/odep/programs/youth.htm (last visited Oct. 3, 2005).
[21]
William Michael Bauer, The Impact of Leadership Training on High
School Students with Disabilities (2003) (unpublished Ph.D. dissertation,
Ohio
State
University
) (Proquest Dissertations and Theses 2003,
Publication Number AAT 3093627).
[22]
Telephone interview with Barbara Wiener-Fischhof, Corporate Communications,
U.S. Franchise Systems, Inc. (June 22, 2006).
[23]
Telephone interview with Barbara Wiener-Fischhof, Corporate Communications,
U.S. Franchise Systems, Inc. (Oct. 11, 2005).
[24]
Telephone interview with David Koffman, principal investigator, Nelson/Nygaard
Consulting Associates, San Francisco, CA (Oct. 7, 2005); telephone interview
with Tammy Haenftling, assistant vice president of
paratransit management services, Dallas Area Rapid Transit (July 14, 2006).
[31]
Virginia
Commonwealth
University
Research and
Training
Center
on Workplace Supports, Business, Disability and Employment: Corporate Models of
Success: Collection of Successful Approaches Reported from 20 Employers (Brian
McMahon et al. eds., 2004).
[33]
Telephone interview with Larry Hickey, assistant manager of human resources,
manager of disability services, University of California, San Francisco (June
28, 2006).
[35]
McMahon, et al., supra note 228.
[37]
While the We Welcome Service Animals video and training materials have been
widely disseminated to hospitality industry operators, outcome data showing
their effectiveness is not readily available. Telephone interview with Jim
Abrams, president and CEO, California Hotel and Lodging Association (June 16,
2006).
[38]
Telephone interview with James Terry, architect, Evan Terry Associates, AL
(Oct. 10, 2005).
[39]
Telephone interview with Judy Stoneham, director for disability services,
Blue
Ridge Community College
,
NC
(June 15, 2006).
[40]
Judy Stoneham, The Accessibility of the
Community College Classroom to Students with Disabilities, 11:1 Information
Technology and Disabilities (August, 2005), Equal Access to Software and
Information Web site, www.rit.edu/~easi/itd/itdv11n1/stoneham.htm (last visited Oct. 3, 2005).
[41]
Nat’l
Center on Accessible Information Technology in Education, University of Wisconsin–Madison:
A Promising Practice in Development, Articulation, and Support of a Web
Accessibility Policy at www.washington.edu/accessit/articles?140 (last visited Oct. 11, 2005).
[42]
Nat’l
Center on Accessible Information Technology in Education.
Oregon
State
University
:
A Promising Practice in Establishing Software Access Guidelines at www.washington.edu/accessit/articles?169 (last visited Sept. 27, 2005). Oregon State University Telephone interview with
Angelo Gomez, director, Office of Affirmative Action and Equal Opportunity,
Oregon State University (June 19, 2006).
[43]
Telephone interviews with David Koffman, principal investigator, Nelson/Nygaard
Consulting Associates, San Francisco, CA (Oct. 7, 2005) and John R. Rochford,
transportation planner III, Access Operations (June, 14, 2006).
[44]
Telephone interview with Terry Parker, accessible services manager, Lane
Transit District, Eugene Oregon (Oct. 8, 2005).
[45]
Telephone interview with Chris Colburn, manager for specialized transportation,
Whatcom Transportation Authority, WA (Oct. 7, 2005).
[46]
U.S.
Department of Justice, Enforcing the
ADA
:
A Status Report from the Department of Justice (April – June, 2002). The
SuperShuttle settlement agreement is available
at www.usdoj.gov:80/crt/ada/superstl.htm.
[48]
U.S. EEOC, supra note 227.
[50]
Telephone interview with Sally Conway, director of
ADA
technical assistance and mediation programs, U.S. Department of Justice, DC
(Oct. 7, 2005, and June 15, 2006).
[51]
Activist and commentator Jack Greenberg noted in his 1959 book Race Relations and American Law that
civil rights laws could be enforced in three ways: “criminal prosecution,
private civil suit for damages or injunction by an aggrieved person, and
administrative or injunctive implementation by public officials.” While
Greenberg’s own preference was for an administrative agency that would
vigorously enforce antidiscrimination laws at public expense and without jury
trials, he was speaking at a time when “civil rights” in
America
was seen primarily in terms of race relations. For Greenberg, criminal
enforcement and civil suits for damages were problematic as a means of
enforcement because they involved trial by jury, “which may very likely be as
prejudiced as the defendant,” and private enforcement also required the costs
of engaging counsel.
[52]
Trial lawyer Andrew D. Levy spoke on this point in his 2000 testimony before
Congress:
Congress recognized that the Federal
Government does not have the resources to enforce the civil rights laws
entirely on its own. While the Department of Justice plays an important role,
the
ADA
, like other civil rights
statutes, relies primarily on private individuals for its enforcement. Congress
created incentives for private individuals – acting as “private attorneys
general” – to enforce the law. . . . Although Congress did not provide for
damages [in Title III], it understood that if it was going to rely on private
parties to enforce the ADA, it had to have some new provision encouraging the
private bar to take the cases. . . . Keep in mind that there are important
limitations on payment of attorney’s fees. First, plaintiffs’ attorneys are
only entitled to be paid if they win. . . . Second, even if you win, you are
only entitled to a fee that the judge finds is “reasonable” – usually
calculated by the lawyer’s normal hourly rate (that is, the rate that his
private clients in non-civil-rights cases pay) – multiplied by the number of hours
the judge finds the case reasonably should have taken to litigate.
The ADA Notification Act, hearing on H.R. 3590 before the
Subcommittee on the Constitution of the House Committee on the Judiciary, 106th Cong. (2000), at 2000 WL 19303719 (statement of Andrew D. Levy).
[53]
See 42 U.S.C. 12117 and 29 C.F.R. §§
1630.16-1641.8.
[54]
See 42 U.S.C. 12134 and 28 C.F.R. §§
35.101-35.190 for Part A of Title II, and 42 U.S.C. § 12188(b) and 28 C.F.R. §§
36.101-36.608 for Title III. Subpart G of the DOJ Title II regulations also
designates other federal agencies to establish complaint procedures to address
noncompliance with the
ADA
in each
agency’s specific area of responsibilities and programs.
[55]
See 42 U.S.C. §§ 12149, 12164, and
regulations found at 49 C.F.R. pt. 27.
[56]
See H.R. Rep. No. 101-485, at 98
(1990), reprinted in 1990
U.S.C.C.A.N. 267, 381 (“As with section 504, there is also a private right of
action . . . which includes the full panoply of remedies. Again, consistent
with section 504, it is not the Committee’s intent that people with
disabilities need to exhaust Federal administrative remedies before exercising
their private right of action.”).
[57]
42 U.S.C. § 12205. See also Newman v.
Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968) (the purpose of the
fee-shifting rule for litigation enforcing Title II of the Civil Rights Act of
1964 was “to encourage individuals injured by racial discrimination to seek
judicial relief under Title II”). See
also Robert V. Percival & Geoffrey P. Miller, The Role of Attorney Fee Shifting in Public Interest Litigation, 47
Law & Contemp. Probs. 233, 241 (“Congress generally authorizes fee shifting
where private actions serve to effectuate important public policy objectives
and where private plaintiffs cannot ordinarily be expected to bring such
actions on their own. Fee shifting is designed to remove some of the
disincentives facing public interest litigants . . .”).
[58]
In 1959, activist and commentator Jack Greenberg noted that civil rights laws
could be enforced in three ways: “criminal prosecution, private civil suit for
damages or injunction by an aggrieved person, and administrative or injunctive
implementation by public officials.” Race Relations and American Law 15
(Columbia University Press, 1959). Greenberg’s own preference was for an
administrative agency that would vigorously enforce antidiscrimination laws at
public expense and without jury trials while potentially offering conciliation
and mediation alternatives, but he was also speaking at a time when “civil rights”
in
America
was
seen primarily in terms of race relations. For Greenberg, criminal enforcement
and civil suits for damages were problematic as a means of enforcement because
the former required a standard of proof beyond a reasonable doubt, the latter required
plaintiffs to bear the costs of engaging counsel, and both criminal and civil
suits involved trial by a jury “which may very likely be as prejudiced as the
defendant.” Id at 15, 16.
[59]
Trial Lawyer Andrew D. Levy spoke on this point in his 2000 testimony before
Congress:
Congress recognized that the
Federal Government does not have the resources to enforce the civil rights laws
entirely on its own. While the Department of Justice plays an important role,
the
ADA
, like other civil rights
statutes, relies primarily on private individuals for its enforcement. Congress
created incentives for private individuals – acting as “private attorneys
general” – to enforce the law. . . . Although Congress did not provide for
damages [in Title III], it understood that if it was going to rely on private
parties to enforce the ADA, it had to have some new provision encouraging the
private bar to take the cases. . . . Keep in mind, that there are important
limitations on payment of attorney’s fees. First, plaintiffs’ attorneys are
only entitled to be paid if they win. . . . Second, even if you win, you are
only entitled to a fee that the judge finds is “reasonable” – usually
calculated by the lawyer’s normal hourly rate (that is, the rate that his
private clients in non civil rights cases pay) – multiplied by the number of
hours the judge finds the case reasonable should have taken to litigate.
The ADA Notification Act, hearing on H.R. 3590 Before
Subcomm. On the Constitution of the House Comm. on the Judiciary, 106th Cong. (2000), at 2000 WL 19303719 (statement of Andrew D. Levy).
[60]
See 42 U.S.C. 12117 and 29 C.F.R. §§
1630.16-1641.8.
[61]
See 42 U.S.C. 12134 and 28 C.F.R. §§
35.101-35.190 for Part A of Title II, and 42 U.S.C. § 12188(b) and 28 C.F.R. §§
36.101-36.608 for Title III. Subpart G of the DOJ Title II regulations also
designate other federal agencies to establish complaint procedures to address
non-compliance with the
ADA
in each
agency’s specific area of responsibilities and programs.
[62]
See 42 U.S.C. §§ 12149, 12164, and
regulations found at 49 C.F.R. pt. 27.
[63]
See H.R. Rep. No. 101-485, at 98 (1990), reprinted in 1990 U.S.C.C.A.N. 267,
381 (“As with section 504, there is also a private right of action . . . which
includes the full panoply of remedies. Again, consistent with section 504, it
is not the Committee’s intent that people with disabilities need to exhaust
Federal administrative remedies before exercising their private right of
action.”).
[64]
42 U.S.C. § 12205. See also Newman v.
Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968) (the purpose of the
fee-shifting rule for litigation enforcing Title II of the Civil Rights Act of
1964 was “to encourage individuals injured by racial discrimination to seek
judicial relief under Title II”). See
also Robert V. Percival & Geoffrey P. Miller, The Role of Attorney Fee Shifting in Public Interest Litigation, 47 Law & Contemp. Probs. 233,
241 (“Congress generally authorizes fee shifting where private actions serve to
effectuate important public policy objectives and where private plaintiffs
cannot ordinarily be expected to bring such actions on their own. Fee shifting
is designed to remove some of the disincentives facing public interest
litigants . . .”).
[65]
See for example James Bovard, The Disabilities Act’s Parade of Absurdities,
Wall Street J., June 22, 1995,
A16; George F. Will, Protection for the
Personality Impaired, The Wash. Post, Apr. 4, 1996, A31; Trevor Armbrister, A Good Law Gone Bad: Drafted With the
Best of Intentions, the Americans with Disabilities Act Has Created a Legal
Nightmare, Reader’s Digest, May 13, 1998.
[66]
See for example Peter David Blanck &
Mollie Weighner Marti, Attitudes,
Behavior and the Employment Provisions of the Americans with Disabilities Act, 42 Villanova L. Rev. 345 (1997); Ruth Colker, The Americans with Disabilities Act: A Windfall for Defendants, 34
Harv. C.R.-C.L. L. Rev. 99 (1999); Christine Jolls, Accommodation Mandates, 53 Stan. L. Rev. 223 (2000); Employment, Disability, and the Americans
with Disabilities Act: Issues in Law, Public Policy, and Research ( Peter
David Blanck ed., 2000); Amy L. Allbricht, ABA
Special Feature: 2003 Employment Decisions Under the ADA Title I-Survey Update, 28 Mental & Physical L. Rep. 319 (2003); Michael Ashley Stein, The Law and Economics of Disability
Accommodations, 53 Duke L.J. 79 (2003); Samuel Bagenstos, “Rational
Discrimination,” Accommodation, and the
Politics of (Disability) Civil Rights, 89 Va. L. Rev. 825 (2003).
[67]
42 U.S.C. §§ 12181-89.
[68]
Kathryn
Wexler, Big Winners in Disabled Crusade?
Lawyers, St. Petersburg Times, Mar. 24, 2002; Matt Krasnowski, Flood of ADA Lawsuits Irks Small Businesses,
San Diego Union-Tribune, September 12, 2004; Walter K. Olson, The ADA Shakedown Racket: The Americans with
Disabilities Act Has Spawned a Sleazy Lawsuit Industry, City J., Winter
2004); Teri Figueroa, Disability Rights
Advocates Split on Support of Lawyer, North County Times, Dec. 18, 2005, www.nctimes.com/articles/2005/12/18/news/top_stories/23_24_0412_17_05.txt.
Also see other media forums such as,
for example; Web site at www.adaabuse.com.
[69]
42 U.S.C. § 12188(a) only incorporates the “remedies and procedures set forth
in section 204(a) of the Civil Rights Act of 1964,” which only includes
prospective injunctive relief. Ruth Colker has made the case that the
unavailability of damages under the ADA are part of a “fragile compromise”
entered to achieve passage of the ADA, in which “the remedies underlying ADA
Title III were limited in exchange for an expansive list of commercial entities
covered by the statute.” See Ruth
Colker, ADA Title III: A Fragile
Compromise, 21
Berkeley
J. Emp.
& Lab. L. 377, 385 (2000) [hereinafter Fragile
Compromise].
[71]
42 U.S.C. § 12188(b)(2)(C).
[72]
See 42 U.S.C. § 12188(b)(1)(B), and see also 28 C.F.R. 36.502 (Attorney
General shall investigate alleged
violations of the Act or this part . . . [but] he or she may initiate a compliance review). [Emphasis added.]
[73]
42 U.S.C. § 12188(b)(1)(B).
[74]
Michael Waterstone, The Untold Story of
the Rest of the Americans with Disabilities Act, Vand. L. Rev.1807, 1874
(2005) [hereinafter Untold Story].
[76]
National Council on Disability, Promises to Keep: A Decade of Federal
Enforcement of the Americans with Disabilities Act, 2 (2000) (“Federal agencies
charged with enforcement and policy development under the ADA, to varying
degrees, have been overly cautious, reactive, and lacking any coherent and
unifying national strategy”). With regard to Title III specifically, the DOJ
has made “decisions not to open for investigation a large number of complaints
received.” Id at 38.
[77]
Buckhannon
Board and Care Home, Inc. v. West Virginia Department of Health and Human
Resources, 532 U.S. 598, 605 (2001).
[78]
Steward J. Schwab & Theodore Eisenberg, Explaining Constitutional Tort
Litigation: The Influence of the Attorney Fees Statue and the Government as
Defendant, 73 Cornell L. Rev. 719, 768 (1988).
[79]
In assessing DOJ’s enforcement of Title III, Ruth Colker found that in
approximately six years of statutory enforcement, the agency had reached 46
settlements, reflecting “less than one settlement a month by an agency charged
with national enforcement.” See Colker, Fragile Compromise, supra note 28 at 404. Colker goes on to
comment that “it is unrealistic to expect that such efforts will have much
impact on the pattern of denial of accommodation that may exist in the larger
society. It is hard to believe that the kinds of general problems that the DOJ
found – inaccessible hotels and restaurants, improper service animal policies,
and inappropriate photo identification policies – are isolated to those 46
entities.” Id. Colker subsequently
extended the period of her study and found that DOJ had reached 107 in 10
years, which still represented less than one settlement a month. See The Disability Pendulum: The First
Decade of the Americans with Disabilities Act 192 (2005).
[80]
Representative Mark Foley, a prime sponsor of a bill that would place a
mandatory prelitigation notice period upon the private right of action under
Title III, stated that “no one disputes that ADA access violations exists”
before asserting that most businesses are not aware that they are violating the
ADA and would fix the violations if notified. The ADA Notification Act, hearing
on H.R. 3590 Before Subcomm. on the Constitution of the House Comm. on the
Judiciary, 106th Cong. (2000), at 2000 WL 19303719 (statement of
Rep. Mark Foley).
[81]
Telephone interview with
San Francisco
small businessman and participant in the San Francisco Collaborative project
(June 22, 2006), see infra note 44.
[82]
The Protection and Advocacy (P&A) system and client assistance program
(CAP) comprise the nationwide network of each state’s congressionally mandated,
legally based disability rights agency. P&A agencies are funded through
federal grant monies administered through the states and authorized to provide
legal representation and other advocacy services, under all federal and state
laws, to all people with disabilities in accordance with a prioritized service
system. The National Disability Rights Network (NDRN, formerly National
Association of Protection and Advocacy Systems, NAPAS) is the nonprofit
membership organization for P&A systems and CAP.
[83]
The ADA Notification Act, hearing on H.R. 3590 Before Subcomm. on the
Constitution of the House Comm. on the Judiciary, 106th Cong.
(2000), at 2000 WL 19303719 (statement of Christine Griffin).
[84]
Telephone interview with Sarah Triano, currently program director at Access
Living in Chicago, and then youth and education team leader and project
director for the 2001–2003 WIA-funded accessibility project (July 10, 2006).
She later provided a portion of Access Living’s report on the project.
[85]
The Collaborative’s inception, mission, and achievements are discussed in San
Francisco Collaborative, Access to San Francisco Small Businesses a Problem for
Customers with Disabilities or Risk Management Approach to Small Businesses Failing
(2004).
[86]
Title 24, California Administrative Code, first adopted in July 1992, is
promulgated by the State Building Standards Commission to establish access
standards for built and altered buildings in
California
.
[87]
The physical accessibility of existing buildings that were constructed before,
and not significantly renovated since, Title III’s effective date is measured
against a “readily achievable” standard that requires public accommodations to
make those modifications that are “easily accomplishable and able to be carried
out without much difficulty or expense.” See 42 U.S.C. § 12181(9). Factors such as a public accommodation’s size and
financial resources are to be considered in deciding whether a modification is
readily achievable. See 42 U.S.C. §
12181(9)(A)-(D).
[88]
San Francisco Collaborative, Access to San Francisco Small Businesses, supra note 44 at 4.
[89]
Fund money was obtained through a simple application that was usually approved
within 24 hours. Payment was made directly to the surveyor or planner on
completion of the work. The fund could also potentially be used to pay for
classes on accessibility requirements and solutions.
[91]
Daniel L. Kaplan et al., Assessing and
Improving Accessibility of Public Accommodations in an Urban Latino Community, 12 J. of Disability Pol. Studies 55 (2001) [hereinafter Accessibility in an Urban Latino Community].
[93]
Daniel Kaplan was a staff psychotherapist at the Counseling Service of the
School of the Art Institute of Chicago; the other four authors were researchers
and professors at either the Department of Disability and Human Development or
the Department of Psychology at the
University
of
Illinois
at
Chicago
.
[94]
The research team used 61 of the 92-item Americans
with Disabilities Act Checklist for Readily Achievable Barrier Removal (Adaptive Environments Center & Barrier Free Environments, 1992) to assess
the accessibility of a business’s entrance and goods and services. A business
was deemed “fully accessible” if it was accessible to a person who uses a
wheelchair without the assistance of others. “Moderately accessible” meant that
a person who uses a wheelchair could gain access to the store and its goods and
services with mild assistance from others. A business was “inaccessible” if a person
who uses a wheelchair could not gain entrance or get to goods and services even
with mild assistance from others. Half of the initial assessment teams included
a person with a visible disability, as the potential impact of this personal
contact was one of the variables being measured in the study.
[95]
The mailed feedback package included a tailored cover letter that emphasized
the benefits of attracting and retaining customers with disabilities and the
avoidance of future legal programs as incentives for voluntary compliance with
the
ADA
, a copy of the
ADA
checklist,
information about a statewide loan program that offered low-cost loans for
barrier removal, and four additional
ADA
information handouts. The information was provided in Spanish to Spanish-speaking
owners, and the baseline interview, feedback and follow-up interviews were
conducted in Spanish or English at the interviewee’s preference. Feedback was
either given face-to-face or mailed, as this was another of the variables being
measured in the study. The feedback package also included a 9” × 12” sign in
Spanish and English that simply stated “If you need assistance, please ask” and
displayed the international symbol for accessibility.
[96]
This figure corroborates the results of an unpublished 1995 study, which found
that 52 percent of minority-owned businesses had never heard of the
ADA
,
compared with 32 percent of non-minority-owned businesses. See S. Oneglia, A Survey of the Effectiveness of the Technical
Assistance Efforts to Assist Very Small Businesses to Comply with the Americans
with Disabilities Act (1995) (Unpublished Manuscript,
University
of
Maryland
, Department of Social Work,
Baltimore
).
[97]
Kaplan, Accessibility in an Urban Latino
Community, supra note 50 at 61.
[99]
There is very little empirical research that assesses how to promote compliance
with Title III. A pre-ADA study concerning the promotion of physical
accessibility in public accommodations was conducted by C. Nelson, M. Jones,
and N. Salkind, Promoting Wheelchair
Accessibility of Private Business Settings: An Analysis of the Effects of
Information, Prompts, Feedback and Incentives, 18 Environment and Behavior,
132 (1986). In the study, 300 public accommodations of various kinds that were
already partially accessible (someone using a wheelchair could at least enter
the business) were sent an information packet that encouraged participants to
call or write for free technical assistance on accessibility issues. Fifteen
percent of those receiving a packet requested technical assistance. A follow-up
telephone call was made to those who did not respond, and 52 percent said they
were interested in an appointment to improve accessibility.
[100]
Kaplan, Accessibility in an Urban Latino
Community, supra note 50 at 61.
[102]
Information was obtained through a personal telephone interview (Oct. 17, 2000)
with Janel Wright, a staff attorney with the
Disability
Law
Center
who helped spearhead the Ramps Project. A fuller report of the Ramps Project
can be found at Silvia Yee & Marilyn Golden, Achieving Accessibility: How the Americans with Disabilities Act is
Changing the Face and Mind of a Nation 413, 440-441, Disability Rights Law
and Policy: International and National Perspectives (Mary Lou Breslin &
Silvia Yee eds., 2002).
[104]
Among the 62 businesses contacted, 12 already had access but had failed to post
signage notifying the public, 5 agreed to provide alternative service, and 7
were determined to be in compliance for other reasons.
[105]
Six businesses that already had access agreed to post signage notifying the
public, 19 businesses agreed to provide alternative service, and 33 were
determined to be in compliance for other reasons.
[106]
Doran v. Del Taco, Inc., 373 F. Supp.2d
1028, 1034 (C.D. Cal. 2005).
[109]
373 F. Supp.2d 1028 (C.D. Cal. 2005).
[110]
532
U.S.
598
(2001).
[111]
According to the NDRN Web site, “NDRN serves a wide range of individuals with
disabilities—including, but not limited to, those with cognitive, mental,
sensory, and physical disabilities—by guarding against abuse; advocating for
basic rights; and ensuring accountability in health care, education,
employment, housing, transportation, and within the juvenile and criminal
justice systems.” See NDRN Web site available at www.napas.org/aboutus/default.htm (last visited July 7, 2006).
[112]
Compare this broad scope of coverage with that found under Title II of the
Civil Rights Act, which explicitly lists entities such as hotels, restaurants,
and places of entertainment as being covered but fails to explicitly include
retail shops, department stores, drugstores, and other public places with goods
for sale and explicitly exempts private clubs. See Colker, Fragile
Compromise, supra note 28 at 386–88.
[113]
Buildings that were in existence as of Title III’s effective date of January
26, 1992, are subject to the “readily achievable barrier removal” standard. See 42 U.S.C. § 12181(9). New
construction that is permitted for occupancy after January 26, 1993, is
required to be accessible in accordance with the higher new construction
standard of being “readily accessible to and usable by individuals with
disabilities” that has been published by the DOJ. See 42 U.S.C. § 12183. The portion of an existing building that is
undergoing an alteration that “affects or could affect the usability of the
facility or part thereof” after January 26, 1993, will also trigger the higher
new construction standard for the area undergoing alterations, and there must
be an accessible path of travel to the altered portion.
Id.
[114]
42 U.S.C. § 12182(b)(2)(A)(iv), (v) & 28 C.F.R. § 36.304 (the DOJ’s
section-by-section analysis of § 36.304 clearly specifies an ongoing readily
achievable barrier removal obligation).
[115]
Any search for the term “small business” in the
ADA
’s
legislative history reveals that Congress was deeply aware of and concerned
about the law’s impact and potential burden on small business. For example, see Hearings Before the Committee on Labor and Human Resources and the
Subcommittee of the Handicapped on S. 933, 101st Cong. (May 9,
10, 16, and June 22, 1989).
[116]
42 U.S.C. § 12181(9)(a)–(d).
[117]
One more layer of complexity exists in the fact that state building codes and
accessibility requirements need not be the same as federal accessibility
requirements, though there is provision for a state to apply to DOJ for
certification if its state or local accessibility requirements meet or exceed
the
ADA
’s accessibility
requirements. 42 U.S.C. § 12188(b). The procedure is purportedly lengthy and
can be fractious, but once a state or local code is certified, public
accommodations that have complied with it have rebuttable evidence of
compliance with Title III. Only
Washington
,
Texas
,
Maine
,
Florida
, and
Maryland
are currently certified, and DOJ has pending requests from
California
,
Indiana
,
New Jersey
,
North
Carolina
, and
Utah
. See Waterstone, Untold Story, supra note
33 at 1358-59. Even for those states that lack certification, however, a lot of
attention has been given in recent years by both the Access Board on the ADAAG
side, and the International Code Council on the International Building Code
(IBC) and ICC/ANSI A117.1 “Accessible and Usable Buildings and Facilities
Standards” side, to the harmonization of the ADAAG with the model ANSI
standards. The IBC and the ANSI A117.1 are the model scoping and technical
requirement codes used by most states for their own building codes, though
admittedly some state adoption processes move slowly, and the new ADAAG
standards have not yet been adopted by the DOJ. Eventually, however,
harmonization of the IBC and ANSI A117.1 models with ADAAG will bring increased
conformity to all state and federal access requirements.
[119]
Supra note 44 at 7.
[120]
Interview with a representative of the San Francisco Mayor’s Economic
Development Office (July 10, 2005).
[121]
42 U.S.C. § 12101(b)(1). One of the key congressional findings made in the law
is that “individuals with disabilities continually encounter various forms of
discrimination including outright intentional exclusion, the discriminatory
effects of architectural, transportation, and communication barriers,
overprotective rules and policies, failure to make modifications to existing
facilities and practices, exclusionary qualification standards and criteria,
segregation, and relegation to lesser services, programs, activities, benefits,
jobs, or other opportunities.” 42 U.S.C. § 12101(a)(5).
[122]
Title I applies to all private employers who have 15 or more employees. 42
U.S.C. § 12111.
[123]
The “readily achievable” term is identified as “easily accomplishable and able
to be carried out without much difficulty or expense.” 42 U.S.C. § 12181(9).
[124]
Telephone interview with
San Francisco
building professional and small business owner (July 7, 2006).
[125]
Colker, Fragile Compromise, supra note 28 at 394.
[126]
Samuel R. Bagenstos, The Paradox of
Limited Civil Rights Remedies: The Case of “Abusive”
ADA
Litigation, 54 Ucla L. Rev.
(forthcoming October 2006) (manuscript at 8) [hereinafter Paradox of Limited Remedies].
[127]
Waterstone, Untold Story, supra note 33 at 1870.
[128]
Colker, Fragile Compromise, supra note 28 at 411-412.
[129]
Daniel Kahneman, the 2002 Nobel Prize winner in economics, pioneered “prospect
theory” in the field of behavioral finance to describe how people evaluate loss
and gain in situations of uncertainty and risk. He found that the fear of loss
has a greater impact on the individual than the hope of gain. See Daniel Kahneman and Amos Tverskey, Prospect Theory: An Analysis of Decision
Under Risk, 47 Econometrica 312 (1979).
[130]
The most well-known example of this is probably found in Clint Eastwood’s
response to being sued by Zum Brennan, who alleged that a public accommodation
owned and operated by Eastwood was in violation of Title III of the
ADA
.
After a seven-day trial in which the plaintiff’s motivation and credibility
were strongly attacked, the jury found two minor access violations without any
award of damages to the plaintiff. Among Eastwood’s post-trial comments to the
press was the admonition that “[y]ou only settle when you’re wrong.” Adam A.
Milani, Go Ahead. Make My 90 Days: Should
Plaintiffs Be Required to Provide Notice to Defendants Before Filing Suit Under
Title III of the Americans with Disabilities Act?, 2001 Wis. L. Rev. 107,
note 397 (quoting from phone conversation with Paul L. Rein) [hereinafter Make My 90 Days].
[131]
Congressmen Foley and Shaw first proposed amending the
ADA
by requiring a 90-day written notice requirement when they sponsored the ADA
Notification Act in February 2000, shortly before the
ADA
’s
tenth anniversary. See H.R. 3590, 106th Cong. (2d Sess. 2000). The same
text was later introduced in the Senate. See S. 3122, 106th Cong. (2d Sess. 2000). Representative Foley
introduced the bill with the assertion that “the
ADA
is
being used by some attorneys to shake down thousands of businesses from
Florida
to
California
. And they’re doing
so at the expense of people with disabilities” and emphasized the dangers of
“rogue attorneys” initiating a “blizzard of lawsuits.” See The
ADA
Notification Act: Hearing on H.R. 3590 Before the Subcomm. on the Constitution
of the House Comm. on the Judiciary, 106th Cong. (2000) (Statement
of Rep. Foley). Numerous witnesses, including Clint Eastwood, spoke at the May
18, 2000, hearing on the proposed bill, which was eventually defeated. Some
version of the bill has been introduced every year since 2000, but so far the
ADA Notification Act has not garnered sufficient support to move out of the
House.
[132]
Title III’s private right of action enables only injunctive relief and the
recovery of attorneys’ fees and costs, without a right to monetary damages, 42
U.S.C.A § 12188(a)(1); 42 U.S.C. § 2000a-3(a). The allegation is that
plaintiffs and attorneys in states that have laws which enable plaintiffs to recover
monetary damages for suffering disability discrimination—most notoriously
California
,
Florida
, and
Hawaii
—unduly
encourage serial and vexatious access claims. See, for example,
California
’s
Unruh Civil Rights Act, Cal. Civ. Code §§ 51 et. seq., which both incorporates a violation of the
ADA
as an independent violation of the Unruh Act and gives plaintiffs the right to
seek minimum statutory damages of $4,000.00.
[133]
The federal courts make their written opinions publicly accessible and
text-searchable on an automated Case Management/Electronic Case Filing (CM/ECF)
system, and the CM/ECF system may also have other case-related documents, such
as a case summary, docket sheets, and pleadings available through the PACER Web
site, pacer.psc.uscourts.gov/index.html (last visited July 2006).
[134]
The Administrative Office of the Judiciary in
Washington
,
DC
, develops and establishes the forms and
documents used in federal court, including the Civil Cover Sheet and its NOS
choices.
[135]
The “440” category represents “Other Civil Rights” cases, thereby spanning all
cases filed under such laws as the Civil Rights Act (all Titles), the Age
Discrimination in Employment Act, and the Fair Housing Act. Cases that should have
been characterized as “446” could have been mistakenly checked under “440,” and
we are aware that this happened, for example, in
Wisconsin
when 24 Title III physical accessibility cases filed in 2005 were found under
“440.” Without prior specific information about these cases, they could not be
found without individually examining hundreds of “440” complaints filed across
the country. In addition, many federal districts have very limited documents
and case information available online, so the complaints cannot be viewed
without an actual visit to the courthouse. While we know that some cases filed
under “440” have not been included, some “440” and “445” cases were
mischaracterized as “446” cases. These have been included in our calculations
whenever we have not been able to access a federal district’s complaints, as we
chose to err on the side of inclusion. In those instances where we were able to
fully access a federal court district’s complaints, we have excluded “446”
cases that were brought under Title I or another civil rights law.
[136]
The “at most” estimate for the Title III cases comes about because not all the
federal court districts have all their complaints and other court documents
available online. Without reading the complaint itself, the basis of the “446”
claim cannot be determined. Those “446” claims that were brought against a
public government entity or a school district/state education department have
been excluded as cases that are likely brought under Title II of the
ADA/Section 504 of the Rehabilitation Act and IDEA, respectively. Cases in
which the defendant was an individual or a Title III private entity have been
included in our Title III case count even where the complaint could not be
viewed; therefore, some of these cases doubtless involve Title III issues other
than physical accessibility (e.g., allegations of a failure to provide
communication access or modification of practices and procedures).
[137]
While
New Jersey
actually had a just a few more “446”
filings than
Texas
for the first half of 2005 (21 in
New
Jersey
to 18 in
Texas
),
Texas
had a considerably higher proportion of possible Title III cases among the
“446” filings (7 in
New Jersey
to 14 in
Texas
)
for that period.
[138]
California Senator Chuck Poochigian has a chart on his Web site that purports
to track the filing of
ADA
lawsuits in
California
’s
federal district courts and shows a steady increase from 26 suits filed in 1992
to 2,231 suits filed in 2004 and 2,544
ADA
lawsuits projected to be filed in 2005. If this number is used,
ADA
lawsuits would constitute 10.6% of
California
’s
civil cases for that year. The chart states that it does not include lawsuits
filed in state courts or cases settled before a lawsuit is filed, but does not
specify what is included in “
ADA
lawsuits” or how its numbers are tallied. See http://republican.sen.ca.gov/opeds/14/oped2725_print.asp (last visited July 17, 2006).
[139]
See Cal Civ. Code (Unruh Act) § 54.3(a);
Fl Civil Rights Law, § 760.11(5); NY Human Rights Law § 297(9); HI Rev. Stat. §
347-13.5; TX Human Resources Code § 121.004(b).
[141]
Christine Griffin, then executive director of the Disability Law Center, which
was the Massachusetts protection and advocacy agency and a member of the
National Association of Protection and Advocacy Systems (now National
Disability Rights Network), testified before Congress concerning the breadth of
real-life Title III issues the Disability Law Center had dealt with: “Why should
a person who is blind and uses a guide dog for mobility assistance have to wait
90 days after they’ve been denied access to a restaurant? Why should a person
who uses a wheelchair who has been denied access to a restaurant that was
recently remodeled but failed to comply with state and federal access laws have
to wait 90 days after their civil rights have been violated? Why should a
person who has mental retardation wait 90 days to invoke a court’s jurisdiction
after being told by a restaurant owner that he won’t serve him because he
doesn’t think the other customers want to look at him?” The
ADA
Notification Act, Hearing on H.R. 3590 Before Subcomm. On the Constitution of
the House Comm. on the Judiciary, 106th Cong. (2000), at 2000 WL
19303717 (statement of Christine Griffin).
[142]
Supra note 72 and discussion in Part
IV.1.C on “Reasons for Widespread Non-Compliance with Title III.”
[143]
See
Vt.
Stat. Ann. tit. 9, § 4506(a).
[144]
See Or. Rev.
Stat. § 659A.885(3).
[145]
See Ky. Rev.
Stat. Ann. §§ 344.450, 207.260.
[146]
See DC Code
Ann. §2-1403.16(a).
[147]
Ky. Rev. Stat. Ann. §§ 344.450, 207.260.
[148]
There are other litigation-related activities, such as prelitigation
extrajudicial settlements and ADA claims joined to state disability law claims
that are brought in state court, which are likely relevant to determining the
impact of Title III private litigation. However, it is extremely difficult to
get accurate figures for lawsuits that were threatened and then “settled”
informally, since such settlements are not necessarily tracked or published
anywhere. Similarly,
ADA
claims
brought in state court are not tracked consistently and are difficult to obtain
for review. It is also more likely for state claims to be joined to a Title III
claim in federal court than for a Title III claim to be brought in state court,
at least in those federal court districts that have not placed specific
procedural or other limitations on the filing of Title III lawsuits, see infra note 113 and text accompanying. While it is arguable that small claims cases
can be linked to Title III, (e.g., a plaintiff with a disability could try to
recover for relatively minor out-of-pocket medical expenses or equipment
expenses allegedly caused by a defendant public accommodation’s failure to
accomplish readily achievable barrier removal in accordance with Title III), it
is even more difficult to consistently find and accurately analyze small claims
cases, which are generally not formally tracked to nearly the same degree as
federal cases. Defense attorney Gregory Hurley, through his work with the
California Administrative Office of the Courts, has made estimates of state
court and small claims ADA filings based on his own litigation experience; he
acknowledges that it is difficult to find concrete evidence for these numbers.
Telephone interview with Gregory F. Hurley (April 25, 2006).
[149]
Colker, Fragile Compromise, supra note 28 at 399–400.
[151]
Id at 399. It is worth noting that
Colker published this article before to the Supreme Court’s decision in
Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and
Human Resources, 532 U.S. 598 (2001).
[152]
Waterstone, Untold Story, supra note 33 at 1826–27.
[154]
One prominent disability rights firm that represents serial plaintiffs
throughout
California
indicated
that in 2004 and earlier, it was filing almost exclusively in federal court.
The firm now files much less in federal court, with approximately 50% or more
of its current 70–75 cases filed in state court. One of the chief factors in the
decision to file federally is the nature of the relief claimed. If a case
involves a large or complex injunctive relief component, the firm will file in
federal court because there is less chance that the defendant can simply fix
everything and moot the federal case. Cases that involve less injunctive
relief, where damages are a significant component of the remedial claim, are
more likely to be filed in state court, since the plaintiff will have to go
there anyway if the federal claim is mooted. This same firm has also seen
federal court judges in one California district increasingly relinquish their
supplemental jurisdiction over the state claims, even when the federal ADA
claim remains live, and the plaintiff is required to refile in state court and
simultaneously bring the action in two courts. The firm would rather file
ADA
and state claims in state court in the first place if it will have to try a
claim there anyway. Oddly enough, the firm has also brought
ADA
and state claims in state court only to have the defendant ask for removal to
federal court. Telephone interview with Jennifer Steneberg, staff attorney at
The Frankovich Group (July 12, 2006).
[155]
As long as the defendant addresses the issues raised in the plaintiff’s
complaint before judgment or settlement, there will be no right to attorney
fees under Buckhannon. One federal
court in
Florida
granted the
defendant restaurant’s request for a stay of the proceedings pending
remediation so that plaintiff’s counsel could not earn fees. See Macort and Access Now, Inc. v.
Checker Drive-In Restaurants, Inc., 8:03-cv-1328-T-30EAJ, discussed in Association for Disabled Americans, Inc. v. Integra
Resort Management, Inc., 385 F. Supp.2d 1272, 1284–85 (M.D. Fla. 2005).
[156]
See Graham v. DaimlerChrysler Corp., 21
Cal.
Rptr. 3d 331 (Dec. 2, 2004); Tipton-Whittingham v. City of
Los
Angeles
, 21
Cal.
Rptr. 3d 371 (Dec. 2, 2004).
California
’s Supreme Court
in Tipton-Whittingham stated that “
California
law continues to recognize the catalyst theory and does not require ‘a
judicially recognized change in the legal relationship between the parties’ as
a prerequisite for obtaining attorney fees under Code of Civil Procedure
section 1021.5. In order to obtain attorney fees without such a judicially
recognized change in the legal relationship between the parties, a plaintiff
must establish (1) that the lawsuit was a catalyst motivating the defendants to
provide the primary relief sought; (2) that the lawsuit had merit and achieved
its catalytic effect by threat of victory, not by dint of nuisance and threat
of expense, as elaborated in Graham; and (3) that the plaintiffs reasonably
attempted to settle the litigation prior to filing the lawsuit.” Id at 375–76. In a subsequent
modification of Graham v. DaimlerChrysler, 34 Cal. 4th 553, 577, the Supreme
Court clarified that under the catalyst theory, “[l]engthy prelitigation
negotiations are not required, nor is it necessary that the settlement demand
be made by counsel, but a plaintiff must at least notify the defendant of its
grievances and proposed remedies and give the defendant the opportunity to meet
its demands within a reasonable time."
[157]
Molski v. Mandarin Touch Restaurant, 347 F. Supp.2d 860, 866 (C.D. Cal. 2004).
[159]
Wilson v. Pier 1 Imports (
U.S.
),
Inc., 411 F. Supp.2d 1196,1199 (E.D. Cal. 2006).
[162]
Amy B. Vandeveld, an attorney and disability advocate, makes the same point
when she asks “‘What difference does it make whether one person with a
disability files 300 lawsuits or whether 300 different people with disabilities
file one suit apiece?’ The barriers are the same. The damages are the same.” Quoted in Carri Becker, Private Enforcement of the Americans with
Disabilities Act Via Serial Litigation: Abusive or Commendable?, 17 Hastings
Women’s L.J. 93, 108 (2006).
[163]
Bagenstos, Paradox of Limited Remedies, supra note 85 (manuscript at 15).
[164]
See discussion on sanctions immediately
following.
[165]
Black’s Law Dictionary 1596 (8th ed. 2004).
[166]
See Weissman v. Quail Lodge, Inc., 179
F.3d 1194, 1197 (9th Cir. 1999) (speaking to district court’s
jurisdiction under All Writs Act, 28 U.S.C. § 1651(a)). See also 28 U.S.C. § 1927 (court may hold any attorney or person
who “multiplies the proceedings in any case
unreasonably and vexatiously” personally liable for additional costs, expenses,
and attorney’s fees incurred as a result).
[167]
305 F. Supp.2d 1278 (M.D. Fla. 2004).
[168]
Id at 1285 and 1282 n. 14 (M.D. Fla.
2004).
[170]
The
ADA
’s fee-shifting provision is
permissive, stating that the court, “in its discretion, may allow the
prevailing party . . . a reasonable attorney’s fee including litigation
expenses, and costs.” 42 U.S.C. § 12205.
[171]
See Macort v. Checker Drive-In
Restaurants, Inc., 2005 WL 332422 *1 (M.D. Fla. Jan. 28, 2005, unpublished)
(“Court is not inclined to award attorney’s fees for prosecuting a lawsuit when
a pre-suit letter to the Defendant would have achieved the same result”); Doran
v. Del Taco, Inc., 373 F. Supp.2d 1028, 1034 (C.D. Cal. 2005) (“fair and
reasonable to require a pre-litigation unambiguous notice and a reasonable
opportunity to cure before allowing attorneys’ fees in an ADA case”).
[172]
Association for Disabled Americans, Inc. v. Integra Resort Management, Inc.,
385 F. Supp.2d 1272 (M.D. Fla. 2005). The case contains an exhaustive review of
decisions that have considered vexatious litigation under Title III, perhaps
prompted by the fact that the case was remanded by the Eleventh Circuit when
the plaintiffs’ appealed the district court’s original award of attorney’s fees
only to the extent conceded by defendants. The decision to deny attorney’s fees
and costs appears to be based not merely on the absence of presuit notice, but
on a judgement that the plaintiff attorneys and his clients’ come to the court
“without the normal presumption of integrity.”
[173]
347 F. Supp.2d 860 (C.D. Cal. 2004).
[177]
Molski v. Mandarin Touch Restaurant, 359 F. Supp.2d 924, 929 (C.D. Cal. 2005).
[178]
The text of Rule 11 is as follows: Rule 11. Signing of Pleadings, Motions, and
Other Papers; Representations to Court; Sanctions
(a) Signature. Every pleading, written motion, and
other paper shall be signed by at least one attorney of record in the
attorney's individual name, or, if the party is not represented by an attorney,
shall be signed by the party. Each paper shall state the signer's address and
telephone number, if any. Except when otherwise specifically provided by rule
or statute, pleadings need not be verified or accompanied by affidavit. An
unsigned paper shall be stricken unless omission of the signature is corrected
promptly after being called to the attention of the attorney or party.
(b)
Representations to Court. By presenting to the court (whether by signing,
filing, submitting, or later advocating) a pleading, written motion, or other
paper, an attorney or unrepresented party is certifying that to the best of the
person's knowledge, information, and belief, formed after an inquiry reasonable
under the circumstances,--
(1)
it is not being presented for any improper purpose, such as to harass or to
cause unnecessary delay or needless increase in the cost of litigation;
(2)
the claims, defenses, and other legal contentions therein are warranted by
existing law or by a nonfrivolous argument for the extension, modification, or
reversal of existing law or the establishment of new law;
(3)
the allegations and other factual contentions have evidentiary support or, if
specifically so identified, are likely to have evidentiary support after a
reasonable opportunity for further investigation or discovery; and
(4)
the denials of factual contentions are warranted on the evidence or, if
specifically so identified, are reasonably based on a lack of information or
belief.
(c) Sanctions. If, after notice and a reasonable
opportunity to respond, the court determines that subdivision (b) has been
violated, the court may, subject to the conditions stated below, impose an
appropriate sanction upon the attorneys, law firms, or parties that have
violated subdivision (b) or are responsible for the violation.
(1)
How Initiated.
(A)
By Motion. A motion for sanctions under this rule shall be made separately from
other motions or requests and shall describe the specific conduct alleged to
violate subdivision (b). It shall be served as provided in Rule
5, but shall not be filed with or presented to the court unless, within 21
days after service of the motion (or such other period as the court may
prescribe), the challenged paper, claim, defense, contention, allegation, or
denial is not withdrawn or appropriately corrected. If warranted, the court may
award to the party prevailing on the motion the reasonable expenses and attorney's
fees incurred in presenting or opposing the motion. Absent exceptional
circumstances, a law firm shall be held jointly responsible for violations
committed by its partners, associates, and employees.
(B)
On Court's Initiative. On its own initiative, the court may enter an order
describing the specific conduct that appears to violate subdivision (b) and directing an attorney, law firm, or party to
show cause why it has not violated subdivision (b) with respect thereto.
(2)
Nature of Sanction; Limitations. A sanction imposed for violation of this rule
shall be limited to what is sufficient to deter repetition of such conduct or
comparable conduct by others similarly situated. Subject to the limitations in
subparagraphs (A) and (B), the sanction may consist of, or include, directives
of a nonmonetary nature, an order to pay a penalty into court, or, if imposed
on motion and warranted for effective deterrence, an order directing payment to
the movant of some or all of the reasonable attorneys' fees and other expenses
incurred as a direct result of the violation.
(A)
Monetary sanctions may not be awarded against a represented party for a
violation of subdivision (b)(2).
(B)
Monetary sanctions may not be awarded on the court's initiative unless the
court issues its order to show cause before a voluntary dismissal or settlement
of the claims made by or against the party which is, or whose attorneys are, to
be sanctioned.
(3)
Order. When imposing sanctions, the court shall describe the conduct determined
to constitute a violation of this rule and explain the basis for the sanction
imposed.
(d) Inapplicability to Discovery. Subdivisions
(a) through (c) of this rule do not apply to disclosures and discovery
requests, responses, objections, and motions that are subject to the provisions
of Rules
26 through 37.
[179]
See Molski v. Mandarin Touch Restaurant,
2005 WL 3719631 (C.D. Cal. Dec. 9, 2005, unreported) (defendant’s Rule 11
application for sanctions in the amount of its attorney’s fees and costs denied
for procedural defects, and because summary judgement was issued on standing
grounds, which is not a decision on the merits).
[181]
Rule 11(c)(2) and comments to 1993 amendments to Rule 11.
[182]
Comments to 1993 amendments to Rule 11.
[183]
Milani, Make My 90 Days, supra note
89 at 175–76.
[184]
Infra notes 145-156 and accompanying
text.
[185]
Doran v. Vicorp Restaurants, Inc., 2005 WL 3244046 *2 (C.D.
Cal.
Sept. 20, 2005) (internal quotations omitted).
[186]
Telephone interview with Bruce Hohol, owner of Hoho’s Café (July 19, 2006).
[187]
Many small business entities indicate continuing unfamiliarity with the 10
Disability and Business Technical Assistance Centers (DBTACs) located around
the country that provide information, training, and technical assistance to ADA
stakeholders through a toll-free line (1-800-949-4232), a main Web site (www.adata.org/) and regional Web sites, and
numerous publications. The DBTACs have more than 200 titles available, many in
Spanish and other languages; they distributed over 7 million titles in the
first decade of the
ADA
’s
existence. Unfortunately, this information, along with such technical
assistance publications as the DOJ’s “ADA Guide for Small Businesses,” does not
appear to consistently filter down or garner sufficient attention at local
levels.
[188]
Telephone interview with Bobbie Beckman, executive director of the Heart of the
Valley Chamber of Commerce (July 18, 2006) and February 2005 press release
issued by the HOV Chamber.
[189]
Telephone interview with, and March 25, 2005, press release issued by, Robert
Shumaker, Esq., of DeWitt Ross & Stevens (July 19, 2006).
[190]
Ed Lowe, Local Lawsuits Trigger Debate
Over
ADA
Compliance, Post-Crescent News, July
24, 2005.
[192]
Title II of the Civil Rights Act of 1964 requires aggrieved people to provide
30 days’ notice to a state or local agency before filing a civil suit for race-
or religious-based discrimination, but neither administrative exhaustion nor
written notice to the defendants is required. See 42 U.S.C. § 2000a-3(c). See
also Milani, Make My 90 Days, supra note 89 at 159–168.
[193]
Wis. Stat. § 106.52(4)(e) (damages, including punitive, are available for
violations of
Wisconsin
’s “Equal
Rights Programs”).
[194]
Telephone interview with Gene Zweben, Schwartz Zweben & Associates LLP
(July 21, 2006).
[195]
Some of the ire felt against Hackel’s attorneys is clearly traceable to their
status as “outsiders” to the state. It is an open question, though, how
difficult it might have been for Hackel to find a local attorney who would take
her case. Shumaker replied negatively when he was asked whether he had heard of
any Title III litigation or demand letters brought by Wisconsin lawyers other
than the
Fox
Valley
lawsuits. Hohol mentioned that if any law firm in the Valley or in
Wisconsin
had tried to bring a bunch of lawsuits without any notice, it would not be able
to continue in business. However, Title III plaintiffs have a right to bring
such lawsuits. The same “outsider” status is accorded to plaintiffs with
disabilities who bring an access lawsuit against communities where they do not
reside.
[196]
The DOJ, for example, when it chose to establish a principle of “comparable
sight lines” in stadium-style movie theaters where wheelchair users were
relegated to the front row(s), “[a]ttacked this problem by suing two of the
largest chains in the industry. (United
States v. AMC Entertainment, Inc.; United States v Cinemark USA, Inc.) . .
. [and] also opened several investigations of other national chains.” See Press Release, DOJ, Statement by
the Department of Justice on the National Council on Disability’s Report on the
ADA (June 27, 2000), available at www.usdoj.gov/opa/pr/2000/June/369cr.htm (last visited July 27, 2006).
[197]
Robin Jones recalls one particular local radio host who ran phone-in sessions
and tried to encourage balanced discussion of the issues raised by the
lawsuits. E-mail communication from Robin Jones, director of the Great Lakes
ADA and Accessible IT
Assistance
Center
(June 22, 2006).
[198]
See, for example, Christopher R. Leslie, A Market-Based Approach to Coupon
Settlements in Antitrust and Consumer Class Action Litigation, 49 U.C.L.A.
L. Rev. 991 (2002); Alexandra Lahav, Fundamental
Principles for Class Action Governance, 37 Ind. L. Rev. 65 (2003); Edward
Brunet, Class Action Objectors:
Extortionist Free Riders or Fairness Guarantors, 2003 U. Chi. Legal F. 403;
Michael Selmi, The Price of
Discrimination: The Nature of Class Action Employment Discrimination Litigation
and Its Effects, 81 Tex. L. Rev. 1249 (2003).
[199]
Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 4, § 2(a)(2)(A)
(codified as note to 28 U.S.C. § 1711).
[200]
See Anthony Rollo and Gabriel A.
Crowson, Mapping the New Class Action
Frontier-A Primer on the Class Fairness Act and Amended Federal Rule 23, 59
Consumer Fin. L.Q. Rep. 11 (2005)
[201]
Rollo & Crowson, id at 17,
summarizing Pub. L. No. 109-2, 119 Stat.
4, § 3(a) (codified as 28U.S.C. §1715(b)).
[202]
Pub. L. No. 109-2, 119 Stat. 4, § 3(a) (codified as 28 U.S.C. §1715(d)).
[203]
Pub. L. No. 109-2, 119 Stat. 4, § 3(a) (codified as 28 U.S.C. §1715(e)(1)-(2)).
[205]
Telephone interview with Lainey Feingold, Oct. 7, 2005; Telephone interview
with Christina Galinda-Walsh and Kenneth Shiotani, Oct. 7, 2005.
[206]
The following list is a condensed compilation of the different objections
and/or supporting memorandums of law filed jointly by numerous P&A
attorneys in each of the cases. While each set of objections refers to facts
and violations of the ADAAG specific to each case, there is a general pattern
of objections owing to the relatively consistent use of overreaching language
in all proposed consent decrees. The degree of commonality suggests that, at
the very least, the party attorneys in these cases are aware of the arguments
and settlement proposals used by the others. As one attorney involved in filing
objections has noted: “the same identical sets of ‘tolerances’ or ADAAG
loopholes are reappearing as ‘Appendix 4’ in settlement after settlement in a
fashion that could not be coincidence.” Interview with Amy Robertson, Oct. 11,
2005. The Department of Justice (DOJ) objections filed in the May Co. case, the
objections filed by the United States amicus brief in the BFS case, and the
objections filed by the Florida Attorney General amicus brief in the BFS case
will also be reviewed for any additional, specifically government, arguments
raised by those agencies to the court.
[207]
Memorandum of Points and Authorities in Support of Twenty-one Protection and
Advocacy Agencies’ Objections to Proposed Class Certification and Settlement at
2 (filed Aug. 9, 2001), hereinafter May
Co.
objections.
[208]
Protection and Advocacy Agencies’ Memorandum of Law in Support of their
Objections to Class Certification and the Consent Decree at 3 (filed Jan. 9,
2002), hereinafter Amoco objections.
[209]
Objections to Proposed Class Settlement by Twelve State Protection and Advocacy
Agencies at 4 (filed Oct. 22, 2001), hereinafter 7-Eleven objections.
[210]
Objections of Eleven Protection and Advocacy Agencies, and Dean Davis, Peter
Giovanoli, Mary Giordan, and Carol Williams to Proposed Class Action Consent
Decree at 10 (filed July 18, 2002), hereinafter BFS objections.
[211]
May
Co.
objections at 3.
[212]
Amoco objections at 4.
[213]
May
Co.
objections at 20.
[215]
Memorandum Opinion and Order 6 (N.D. Tex., filed April 10, 2002).
[216]
For example,
Arizona
’s Civil
Rights Act gives the court discretion to “award such other relief as the court
considers appropriate, including monetary damages to aggrieved people.” See A.R.S. § 41-1492.09(B)(2).
[217]
For example,
California
’s Unruh
Civil Rights Act grants minimum statutory damages of $4,000 for the failure to
provide people with disabilities full and equal accommodations, advantages,
facilities, privileges, and services in all business establishments. Prevailing
plaintiffs are also entitled to attorney fees. See Cal Civ. Code §§ 51 et
seq.
[218]
See A.R.S. § 41-1492.09(C).
[219]
May
Co.
objections at 21.
[220]
BFS objections at 19-21. The settlement does not refer at all to any kind of
relief for people with mental or psychological disabilities who face
discrimination or policy/attitudinal barriers at BFS stores. Presumably, BFS
could adopt an outright exclusion policy of people with developmental
disabilities that would not be actionable, because such people are encompassed
in the class and would be deemed to have released their rights under state and
federal law.
[221]
For example, public accommodations are given greater flexibility and defenses
for the retrofitting of older buildings that were already in existence on the
ADA’s effective dates, see 28 C.F.R.
§ 36.304(a), while stores built after Jan. 26, 1993, have much less discretion
to avoid meeting the ADAAG standards, reflecting the fact that “accessibility
can be more conveniently and economically incorporated in the initial stages of
design and construction.” 28 C.F.R. § 36.304 App. B.
[222]
Telephone interview with Brian East, attorney with Texas P&A (June 22,
2006), and telephone interview with Larry Paradis, attorney with Disability
Rights Advocates (June 22, 2006).
[223]
7-Eleven objections at 15, 9.
[224]
Amoco objections at 32.
[225]
Amoco objections at 14, BFS objections at 23.
[226]
May
Co.
objections at 30.
[229]
Amoco objections at 13–15.
[230]
May
Co.
objections at 29.
[231]
Telephone interview with Larry Paradis, supra note 167. Paradis recognized that the insertion of adequate monitoring
provisions into a settlement is “always a fight, because defendants don’t want
it,” so plaintiff attorneys must build a credible record for refusing to enter
settlement without provision for independent monitoring. Unfortunately, if part
of the motivation for a settlement without monitoring is a collusive
relationship between plaintiff and defense counsel, plaintiff counsel cannot be
counted on to stand up strongly for adequate future monitoring of injunctive
relief.
[232]
7-Eleven objections at 23.
[233]
In the May Co. case, the parties subsequently settled for all the Lord &
Taylor stores in
Florida
only
after the court denied class certification and the terms of the proposed class
action settlement. In 7-Eleven, the court denied class certification and
disapproved the proposed consent decree.
[234]
Interview with Christina Galinda-Walsh, Oct. 7, 2005.
[235]
Interview with Lainey Feingold concerning her intervention in 7-Eleven on
behalf of the American Council for the Blind, on whose behalf she had already
been negotiating for talking ATMs with 7-Eleven when the Association for
Disabled Americans submitted the proposed consent decree (Oct. 7, 2005).
[236]
National Class Action Settlements: When
Should P&As Object? Fact Sheet by Disabilities Law Project and
Bazelon
Center
for Mental Health Law (Oct.
1, 2002).
[237]
Interview with Brian East, supra note
181.
[238]
Court’s Order Approving Proposed Class Settlement (filed Feb. 19, 2002).
[239]
Court’s Order granting preliminary approval of proposed amended consent decree
(filed Aug. 16, 2002).
[240]
Interview with Amy Robertson, Oct. 11, 2005, concerning Title III action
initiated against Circle K.
[241]
Id concerning Title III action initiated
against Arby’s, see Access Now., Inc. and Christ Soter Tavantzis
v. RTM Operating Company, d/b/a Arby’s, Case No.
02-23374-CIV-Martinez/Klein (S.D. Flo).
[242]
The education of Title III class counsel on potential problematic settlement
issues must be ongoing, as new counsel are always entering the field without
sufficient awareness of all of the settlement pitfalls. East notes that many of
the earlier problematic settlements used an “ADAAG light” measure of
accessibility that permitted unacceptable levels of tolerances. Some of the
more recent problematic settlements have had adequate accessibility measures
and tailored remedies for people with mobility disabilities, but they have
overly broad class definitions and inadequate remedial provision for people with
other kinds of disabilities that fall within the class. Interview with Brian
East, supra note 181.
[243]
Communication from Elaine Feingold & Amy Robertson, Recommendations for
Settling Class Actions under Title III of the Americans with Disabilities Act (2002) (Oct. 13, 2005). This article
has also been published by LRP.
[244]
Interview with Brian East, supra note
181.
[246]
A sample of Feingold’s structured negotiations settlement agreement is attached
as Appendix A.
[247]
Communication from Lainey Feingold, “2004 Sample of Privileged and Confidential
Settlement Communication from Linda Dardarian and Elaine B. Feingold” (Oct. 7,
2005).
[248]
Telephone interviews with three separate corporate counsel, July 18, 21, and
27, 2006. The counsel worked with financial institutions ranging in size from a
bank that operated in three states with 500–600 branches and 1,000 ATMs, to a
bank with approximately 6,200 branches and 6504 ATMS, ranking in the top five
of its industry for assets and market value of stock.
[249]
Chandler
Glover and Dean Albrecht, et al. v. John E.
Potter, Post Master General, EEOC No. 320-A2-8011X; Agency No.
CC-801-0015-99.
[250]
2004 WL 2370633 (N.D.
Cal.
Oct.
21, 2004).
[251]
Class Action Settlement Agreement, Travis
D. v.
Eastmont
Human
Services
Center
, No. CV-96-63-H-CSO (D.
Mont.
Feb. 5, 2004).
[252]
Id at Exhibit B, at 1, 4-11, 13-14,
15-17, 18.
[253]
See, for example, Settlement Agreement
between Cupolo and Bay Area Rapid Transit,
No. C-96-02991 CW/JSB (N.D. Cal. July 17, 1998).
[254]
Disability rights advocates have initiated a number of lawsuits in this area.
One was settled in
Oregon
in
2004.
[255]
Case No. 99-MK-2086 (D.Col.)
[256]
The discussion of accessibility and policy accommodation features in the
participants’ respective courthouses was likely prompted at some level by the
Supreme Court’s finding in Tennessee v.
Lane, 124 S.Ct. 1978 (2004) that
Title II of the ADA, as applied to cases implicating the fundamental right of access to the courts, constitutes a valid
exercise of congressional enforcement power under the Fourteenth Amendment.
[257]
Broom, G. M., & Dozier, D. M. (1990). Using research in public
relations: Applications to program management.
Englewood
Cliffs, NJ: Prentice-Hall; Cutlip, S. M., Center, A. H., & Broom, G. M.
(2006). Effective public relations (9th ed.).
Upper
Saddle River
,
NJ
:
Prentice-Hall; Grunig, J. E., & Hunt, T. (1984). Managing public
relations. NY: Holt, Rinehart, & Winston.
[258]
Valente, T. W. (2001). “Evaluating communication campaigns.” In R. E. Rice
& C. K. Atkin (Eds.), Public communication campaigns (3rd ed).
Thousand
Oaks
,
CA
: Sage; Valente, T. W.
(2002). Evaluating health promotion programs. NY:
Oxford
University
Press.
[259]
Flora, J. A. (2001). “The Stanford community studies: Campaigns to reduce
cardiovascular disease.” In Rice & Atkin (2001); Snyder, L. B. (2001). “How
effective are mediated health campaigns?” In Rice & Atkin (2001); Broom
& Dozier (1990); Cutlip, Center, & Broom (2006); Grunig & Hunt
(1984).
[260]
Evans, M. K., & Stroll, H. (2006). Marketing challenge: Playing the name
game. Retrieved April 26, 2006, from www.marketingprofs.com/6/stroll108.asp;
Kitchin, T. (2006). The value chain: From building brand to building integrity.
Retrieved April 26, 2006, from
www.marketingprofs.com/login/signup.asp?source=/5/kitchin1.asp.
[261]
Paisley
,
W. J. (2001). “Public communication campaigns: The American experience.” In
Rice & Atkin (2001).
[262]
Dullea, K. (2006). The real gold goes to the bold. Retrieved April 26, 2006,
from www.marketingprofs.com/6/dullea1.asp
[263]
Carey, J. W. (2005). Historical pragmatism & the Internet. New Media
& Society, 7, 443–456.
[264]
Wikipedia. (2006). “Podcasting.” Retrieved May 1, 2006, from
http://en.wikipedia.org/wiki/Podcasting.
[265]
Nielsen, J. (2000). Designing Web
usability.
Indianapolis
: New
Riders Publishing.
Rubin, J. (1994). Handbook of usability
testing: How to plan, design, and conduct effectiveness tests. NY: John
Wiley.
|