The Americans with Disabilities Act (ADA) is seen as an important victory for the disability rights movement after a long struggle for a comprehensive civil rights law protecting persons with disabilities form discrimination. Unlike the Rehabilitation Act (whose Section 504 was the first truly rights-oriented language in American disability policy), whereby political entrepreneurs had much more to do with constructing and shepherding the policy that subsequently lead to the rise of the modern disability rights movement, key movement figures were much more aware and active in the politics leading up to the ADA. Yet, although the ADA was drafted in 1988, signed into law in 1990 and took effect in 1992, my colleague, Michelle Maroto, and I were surprised to learn that employment rates and economic well-being among persons with disabilities have actually declined over the last 20 years. In drafting a manuscript on the subject, we essentially find two arguments seeking to explain the failure of this law: one claims that the ADA increased the cost of hiring persons with disabilities – unintended harms – so to speak; the other suggests that the ADA was never truly applied due to judicial resistance and narrow, illogical interpretations that favored employers over plaintiffs. Beginning in 2006, both activists and institutional entrepreneurs formally acknowledged the “failure” of the ADA (at least in improving economic conditions) through a set of hearings that would eventually lead to the ADA Restoration Act of 2007/2008. By and large, what was being restored was the intent of the ADA which had been undermined by the courts – the courts have historically not been champions of reasonable accommodation.
A recent NYT article “Disabilities Act Prompts Flood of Suits Some Cite as Unfair” by Mosi Secret (April 16) highlights the ongoing tension between what employers and business owners think is reasonable accommodation, and legislation that is built on the notion of equal rights regardless of cost. Perhaps not coincidentally following the ADA Restoration Act, there has been an increase in the number of lawsuits regarding accessibility. In many ways, this is forcing the issue of accessibility requiring resistant business owners to provide reasonable accommodations. On the other hand, critics have suggested that the lawyers filing these suits are “ambulance chasers” and as Secret writes, “The lawyers are generally not acting on existing complaints from people with disabilities. Instead, they identify local businesses, like bagel shops and delis, that are not in compliance with the law, and then aggressively recruit plaintiffs from advocacy groups for people with disabilities.” While many businesses settle (it is not clear whether that means they actually make concerted efforts to accommodate as part of that settlement), a result of these suits has also been the introduction of legislation that would amend the ADA to require that businesses be given a 90-day notice before being sued.
Is this so-called ambulance chasing a way to mobilize the law and has it been successful? In the past, courts have been reluctant to decide in favor of disabled plaintiffs. But as lawyers, who admittedly use this as a way to earn a living, seek out lawsuits invoking the ADA, business owners have actually been forced to comply. According to the NYT article, “The results of the suits were almost immediate: workers grabbed their hammers, installing new ramps, lowering counters and shelves and making businesses more accessible to people with disabilities.” Yet, as has been the case throughout the entire history of the ADA, when it comes to businesses’ and employers’ freedom, this influx of cases has already generated a response to protect employers from “unreasonable” accommodation – a concept that is at odds with a framework of equal rights.