Everyday Law for Individuals with Disabilities

Ruth Colker, Adam A. Milani

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781317260127
• Edition: 1
• Topic: Politik & Internationale Beziehungen
• Subtopic: Politik

If you are an individual with a disability and believe you have been discriminated against, it is often hard to find a lawyer to help remedy your situation. Accordingly, 'self-help' may often be your most, or your only, viable strategy. But how to proceed? This book serves as a badly needed practical guide to disability discrimination law. Covering a wide range of issues faced by individuals with different kinds of disabilities, it not only describes those individuals' legal rights but also suggests solutions to disability discrimination issues that are more practical and less expensive than filing a lawsuit. Written by two disability law experts, Ruth Colker, whose son is developmentally disabled, and Adam Milani, who is paralyzed from the chest down, this book is informed by their scholarly expertise but is also based on their collective practical experience from years of navigating issues of disability discrimination. Everyday Law for Individuals with Disabilities is the first in a series of practical guides to the law, organized by series editors Richard Delgado and Jean Stephancic, packed with useful overviews and advice for the people who need it most and can least afford it.

1

Introduction

Many laws exist to protect the rights of individuals with disabilities, but few of them are very effective when implemented through the traditional judicial system. Those people who are well informed about their legal rights, however, are often better able to resolve matters voluntarily and informally. In this book, we strive to provide information that will make such informal resolutions possible. We discuss the variety of federal statutes that purport to protect the rights of individuals with disabilities and provide readers with basic details about how to file a formal legal complaint under these statutes. We also suggest, however, other less formal mechanisms that may be more effective in these areas. Legal enforcement includes more than just formal judicial proceedings. It also entails many strategies that are successful when carried out in the “shadow” of the law.

We do not expect that many readers of this book will hire a lawyer to protect their legal rights (although that is certainly an option they should sometimes consider). Instead, we assume that our readers want to know more about the rights of individuals with disabilities so that they can help protect those rights. Such readers might be parents or friends of individuals with disabilities or individuals with disabilities themselves.

We also do not assume that the readers of this book have had any legal training, so we try to describe—in lay terms—the rights that exist under federal disability discrimination law. Nonetheless, it is virtually impossible to discuss legal concepts without some legal jargon. When possible, we define legal terms for readers who may not understand them. For some people, a good legal dictionary might be a helpful companion while reading this book in case we do not define terms that require further explanation.

Focus on Federal Disability Discrimination Laws

This book focuses on the federal law that exists in the area of disability discrimination. Each of the fifty states and the District of Columbia also have some law in this area that applies only to the individual states. Readers might want to supplement the information from this book with research into state law in their particular state. (We do offer a list of federal and state resources in the Appendix.) In general, however, federal law is more protective of the rights of individuals with disabilities than state law. So, the information in this book should provide a good beginning for readers who want to become more informed about these rights.

When talking about individuals with disabilities, we find that the legal landscape is quite broad. There are laws relating to health insurance benefits and Social Security payments, as well as to the law of discrimination. In this book, we are addressing only the law of disability discrimination. What legal recourse is available if an individual with a disability has faced what might be considered discrimination? Discrimination can take many forms—including outright exclusion from services, failure to make reasonable accommodations, and problems relating to inaccessibility. We discuss these three forms of discrimination as well as others ranging from employment and education to voting accessibility. Readers who want to learn more about health law topics as they relate to individuals with disabilities might benefit from the Everyday Law for the Elderly book in this series.

History and Overview of Federal
Disability Discrimination Laws

What are the laws that prohibit disability discrimination? The first federal statute enacted on the issue was the Architectural Barriers Act of 1968 (ABA), 42 U.S.C. § 4151–4157. It requires that federally owned, leased, or financed buildings be accessible to people with disabilities. The coverage of the ABA, however, is limited to buildings directly used or funded by the federal government.

The earliest and most prominent broad-based statute barring disability discrimination was the Rehabilitation Act of 1973. Sections 501, 503, and 504 of the Rehabilitation Act, 29 U.S.C. § 791, 793, 794, prohibit federal agencies, federal contractors, and recipients of federal financial assistance from discriminating against qualified individuals with disabilities on the basis of disability. The original text banning discrimination in the Rehabilitation Act, however, was a little-noticed sentence in a comprehensive statute that provided rehabilitation services. For nearly a decade, there was virtually no judicial enforcement of this statutory requirement. In fact, some members of the disability community had to go to court to get the U.S. Department of Justice to begin enforcing this statute in the 1980s.

Today, the Rehabilitation Act is an important form of legal protection for individuals with disabilities, given the large variety of services funded, in part, by the federal government. If individuals with disabilities are attending a university or using hospital services, they are most likely utilizing the services of an entity that receives federal funds in the form of student financial aid or Medicare/Medicaid payments. The individual with a disability does not have to be using those aspects of the entity’s services that receive federal financial assistance in order to have a claim of discrimination under the Rehabilitation Act.

In 1975, Congress enacted the next important federal statute in the disability discrimination area. Originally called the Education of All Handicapped Children Act, it has subsequently been renamed the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq. IDEA is a process-oriented civil rights statute that guarantees that each child with a disability shall have an individualized education program (IEP) so that he or she can receive a free and appropriate public education (FAPE). This statute applies only to children from ages 3 to 21 while they are in preschool, primary school, or secondary school. It does not apply to university students. Discrimination claims by college students are typically heard under the Rehabilitation Act or the Americans with Disabilities Act; nearly all institutions of higher education receive federal financial assistance in the form of student financial aid that makes them subject to the Rehabilitation Act.

IDEA is not a pure antidiscrimination statute because the rights that apply to students with disabilities have no parallel for students without disabilities. Under federal law, only students with disabilities are entitled to individualized education plans as well as a free and appropriate public education. In some sense, IDEA provides more rights to students with disabilities than to other students. This can be frustrating for parents if their child is on the borderline between “disability” and “nondisability.” If the student is deemed disabled under the definition found in IDEA, then a whole set of rights attaches to that student. If the student is struggling in school but does not meet the definition of disability, then the parents have fewer tools for advocating that additional resources be devoted to the student. Therefore, parents who want to secure extra educational resources to help their child need to have a clear understanding of how to have the child qualified as disabled for the purposes of IDEA.

IDEA was a landmark statute in that it forced school districts to accept nearly all students into their classrooms, thus preventing them from refusing to serve students with disabilities. Most of the positive results achieved under this statute, however, have not arisen as a result of litigation. Litigation is a slow and burdensome process that is unlikely to solve educational issues quickly for children in primary and secondary school. Hence, it is crucial for parents to have effective advocacy skills when asserting the rights guaranteed by IDEA in order to avoid having to resort to litigation. Chapter 3 discusses IDEA extensively, offering pointers for effective, informal advocacy.

In the 1980s several other important federal statutes were enacted, including the Voting Accessibility for the Elderly and Handicapped Act of 1984, 42 U.S.C. § 1973ee; the Air Carriers Access Act of 1986, 49 U.S.C. § 41705; the Fair Housing Act Amendments of 1988, 42 U.S.C. § 3601 et seq.; and the Child Abuse Amendments of 1984, 42 U.S.C. § 5101 et seq.

The Voting Accessibility statute requires states to promote the fundamental right to vote by improving access for handicapped and elderly individuals to registration facilities and polling places for federal elections. The Air Carriers Access Act prohibits air carriers from discriminating on the basis of disability. The Fair Housing Act Amendments expanded the coverage of the Fair Housing Act to prohibit discrimination on the basis of disability in private and public real estate transactions. The Child Abuse Amendments were intended to prevent the withholding of medical treatment to infants with disabilities.

Despite the sheer number of statutes enacted in the 1980s to protect the rights of individuals with disabilities, all of these statutes, other than the Fair Housing Act Amendments, are toothless. The Voting Accessibility statute, for example, provides individuals with a right to sue only after they have given the chief election officer of the state forty-five days to comply with its statutory obligations. Moreover, if the individual with a disability satisfies this notice requirement and achieves a successful outcome in court, the only relief that can be awarded is declaratory or injunctive relief (i.e., an order to require the state to make its voting places accessible in the future). Accordingly, a lawyer with such a case cannot hope to have his or her fees come out of a contingency fee award (whereby the lawyer would typically get 30–40 percent of a financial award), because no financial awards are possible under this statute. In contrast to situations involving the Rehabilitation Act and IDEA, which require a losing defendant to pay the plaintiff’s attorney’s fees, a state defendant who loses a case under the Voting Accessibility statute is not liable for attorney fees.

Thus, in the 1980s individuals with disabilities had little hope of finding a lawyer to bring a case under the Voting Accessibility statute. The lawyer would have had to take the case on a pro bono basis with no possibility of collecting attorney fees from the opposing party, even if the suit were successful. The Voting Accessibility statute also gave states no incentive to make their polling places accessible. The worst remedy that states had to fear was an order requiring them to make their voting places accessible in the future when, of course, federal law already imposed that requirement on them.

The Voting Accessibility statute is one of the “sounds good” statutes enacted by Congress in the disability rights area in the 1980s that had few practical implications. The only exception to this pattern, as noted above, is the Fair Housing Act Amendments of 1988, inasmuch as that statute provides for effective compensatory and punitive damages for individuals with disabilities and the possibility of attorney fees for their lawyers. Enactment of the Fair Housing Act Amendments of 1988 suggested that Congress was ready to move from “sounds good” legislation to strong legislation with effective and meaningful remedies.

Enactment of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101–12213, reflected a genuine commitment by Congress to enhance the substantive rights of individuals with disabilities. As of early 1990, no federal statute prohibited the majority of employers, program administrators, owners and managers of places of public accommodation, and others from discriminating against people with disabilities. In that year, more than 8 million Americans with disabilities who wanted to work were unable to obtain jobs. Individuals with disabilities also faced enormous transportation problems. Public transportation was rarely accessible to individuals with disabilities despite their disproportionately heavy reliance on such transportation. In fact, very few rail cars and only one-third of the public buses in the United States were accessible to riders with disabilities.

ADA was enacted in 1990 to assist in remedying the problems relating to access by persons with disabilities to public facilities, employment, and transportation services. Although it was enacted by an overwhelming majority in a bipartisan Congress, it has received a cool reception from judges. Moreover, it contains some fundamental flaws that has made implementation through the courts difficult.

In the employment area, which is discussed in Chapter 2, individuals with disabilities are protected by Title I of ADA. The average monetary award under this title of the statute, however, is less than $100,000, partly because individuals with disabilities often have low-paying jobs. These awards are too small for lawyers to take the cases on a contingency fee basis; because of the time-consuming nature of these cases, the contingency fee award often will not even cover the lawyer’s expenses. If plaintiffs do prevail, their lawyers can seek attorney fees from the losing party, but a hostile judiciary has made it difficult for plaintiffs to succeed in many ADA cases that are taken to court. It is usually a poor bet for a lawyer to take an ADA Title I case in the hope of winning an attorney fee award from the opposing party. It is therefore crucial for individuals with disabilities to contemplate remedies other than judicial recourse to protect their rights under ADA Title I.

In the accessibility area, which is discussed in Chapter 5, we find that individuals with disabilities have very limited legal alternatives when they have been denied access to places of public accommodation due to inaccessible design features. In theory, ADA Title III bans discrimination in access to public accommodations such as restaurants, hotels, and supermarkets. But ADA Title III, like the Voting Accessibility statute, permits only suits for declaratory and injunctive relief; plaintiffs cannot bring claims for monetary damages. In other words, the best an individual can hope for, when suing to gain accessibility to a facility or to receive an accommodation, is that the court will order the change to be made; the individual will not receive any compensation for the problem that led to the suit. In contrast, however, in situations involving the Voting Accessibility statute, an individual’s lawyers can be awarded attorney fees if they are successful on behalf of their client. Hence, there are lawyers who specialize in accessibility lawsuits and seek their fees from the defendant when they prevail. Unfortunately, some of these lawyers have been criticized by the media for receiving substantial attorney fee awards. Nonetheless, architects are increasingly sensitive to accessibility issues, so most new buildings comply with ADA accessibility. Further, some business owners consider it to be good business for their facility to be accessible to individuals with disabilities. But ADA provides few incentives for owners of public accommodations to make their facilities accessible when they need only fear suits for declaratory and injunctive relief.

Despite the limited remedies available under ADA Title III, however, we have seen a major transformation in many private facilities in the United States. Restaurants, hotels, and supermarkets (along with many other private facilities) are much more likely to be accessible today than they were a decade ago. Arguably, the law contains an important education component that has helped spur private entities to make their facilities more accessible to the public. Remedies, other than judicial remedies, appear to have been successful under ADA Title III. Chapter 5 discusses some successful nonjudicial strategies that have been employed under ADA Title III.

Goals and Outline of This Book

Hence, this book is both descriptive and prescriptive. We describe the existing law on disability discrimination and then suggest methods that one might employ to enforce these rights. Judicial remedies are included along with nonjudicial remedies.

Chapter 2 discusses examples from the employment area. It suggests low-cost accommodations that employees might request to resolve various fact patterns. It also discusses the intersection of Social Security Disability law and ADA Title I, so that readers will understand how to seek Social Security Disability Insurance (SSDI) benefits without jeopardizing their ADA complaints.

Chapter 3 focuses on the K–12 educational area. It walks the reader through the process of attaining an individualized educational program for his or her child. It discusses the conflicts of interest that inherently exist as part of the IEP process and explains how parents can best navigate those conflicts. (Parents have to negotiate with the people who will be providing services during the IEP process and can ill afford to alienate the person who may be educating their child.) This chapter also discusses how one might use the free legal services available in each state to children who are developmentally disabled.

Chapter 4 examines the laws affecting postsecondary educations (colleges and universities). It discusses the dramatic shift in the requirements for obtaining accommodat...