A Primer on The Civil Rights Act of 1991

Along with the passage of the ADA, another piece of legislation passed about the same time (The Civil Rights Act of 1991) guarantees PWDs the same Constitutional protections as minorities – specifically that they are worth the full “value” of a white man.

The Act was originally passed in the Reconstruction Era and until 1991 only applied to minorities. Ever afterwards, it also applied to the PWD community, even though legal challenges if not a broad understanding of the statute remains oblique and largely untested.

What the statute also essentially does is address not only the “contractual worth” of PWDs, it also ostensibly creates economic “rights” or an economic “floor” for PWDs. This means that, for example, a PWD may not be hired at less than the minimum wage (for example).

What it also does, however, is create mandates for the government where goods and services vital to maintaining that “contractual” worth are provided to this community.

Starting with, of course, healthcare.

While a great many of the failings of the ADA remain to be addressed thanks to aggressive federal push back in the courts (for example), one of the most instructive things to come out of the last twenty years of litigation under the Act was attempts to “define” a covered disability.

The ADA Restoration Act will address many of these issues, we hope, but taking from that line of reasoning, we contend that in fact, since so many people with disabilities require medication to manage their disabilities so as to not meet the federal standards of being “disabled” that this is actually a very interesting legal space right now. Specifically, using that logic, a person with a disability who can manage their disability with medication (starting with diabetes) is therefore guaranteed a certain “floor” of medical service. Without such service (including access to medication, regardless of the ability to pay), such a person very well may be “disabled.” With it, they will be a PWD, able to take their rightful place in society in every place the “able-bodied” now participate. As such, the state has a vested interest if not obligation (starting with a fiscal one if not a civil rights based one) to insure, if not is forced to require, unimpeded access for every PWD to state provided medication to preserve their “contractual value.”

We realize that for the non legal eagles reading this, this may all sound like complicated legal mumbo jumbo.

However in the middle of budget battles, from the federal to the state level, we think this is an important point to raise.

Particularly as we have a service provision model which not only addresses it but creates a very powerful “fix” that will reverberate both directly on the bottom line and in indirect costs that we anticipate will become increasingly obvious as we begin service provision.

A Brief Primer on the ADA (The Americans With Disabilities Act)

There are several laws that protect people with disabilities (PWDs) that are not widely understood.

The ADA is perhaps the most widely cited. This is the landmark civil rights bill passed in 1990.

Today’s blog will discuss the basic premise of the ADA and provide a very (brief) description of its major tenets.

The statute was essentially designed to be “Title VII for PWDs.” Unlike Title VII, the law does not however just cover discriminatory attitudes as they occur between two individuals – the law targets other things too – like infrastructural barriers. Unlike Title VII however, PWDs under the ADA do not get any kind of affirmative action protection.

Despite its relative weakness in comparison with Title VII, however, the ADA goes much further than its immediate predecessor. Unlike The Rehabilitation Act of 1973, the ADA also requires the states to comply with federal standards. In this, it very much takes its language from the broader civil rights movement protections. It also expands the coverage of its protection beyond government to the private sector. That said, this is the least successfully implemented or litigated civil rights law to date enacted. Twenty one years after the first President Bush signed it into law, the approximately 20% of the American population that has a disability remains largely marginalized. Most PWDs subsist in abject poverty on a government stipend called SSDI or SSI and “Medicaid.” According to both advocacy groups (such as Easter Seals) and indeed unofficial estimates from the Department of Labor, more than 90% of this population also remains unemployed due to no fault of their own. Because the law is both so poorly understood if not enforced, the overwhelming majority of ADA litigation never sees the light of day. Fewer than 1% of ADA cases are ever won in federal court.

In 2008, President George W. Bush signed The ADA Restoration Act, a bill designed to restore much of the protections of the original bill after almost twenty years of litigation and decisions by the courts that rendered the protections supposedly offered by the Act almost impossible to litigate if not null and void when it came to employment. Chief among those issues was the federal definition of what a disability was – which had become so narrow that it didn’t cover the population it was designed to protect.

We think that the combination of the ADA Restoration Act and two huge populations of people with potentially new disabilities will begin to change that. The first population is of course vets from both Iraq and Afghanistan. The second of course are Boomers, who are starting to show signs of age-related disabilities. Combined with the twin forces of a larger demographic (along with planned budget cuts to “Medicare”) we believe that this statute may finally come into its own. What is being left out of the conversation in Washington these days is that there are civil rights implications (both under Title VII and even more specifically under the ADA) that prohibit certain services from being eliminated. This is why we believe that our service provides a much needed solution to many of these problems – and for both stake-holders and the government. Medical services (for one) can not just not be eliminated in the face of budget cuts, they are required under civil rights protections as part of the “contractual” right of being a citizen per the Constitution. Therefore, the task ahead for those like us is to figure out ways to make such service provision the most efficient and cheapest it can be while still providing a required floor of service. We intend to set our standards, for one, very high. The same, in fact, as we provide for the “able-bodied” we also plan to serve.

This is the real idea behind the ADA, which we intend to uphold if not set new benchmarks for in terms of not just cost and efficiency, but service provision and civil rights protection.

There are three basic parts to the ADA. These are described below.

Title I refers to employment. Specifically it prohibits discrimination in all aspects of retention, working or indeed termination. It also covers an issue which is rarely understood much less well implemented in most workplaces – specifically “reasonable accommodations.” Reasonable accommodations refer to the required steps that an employer must, by federal law, implement for an employee with a disability if they do not pose “an undue business burden.” Most accommodations are cheap to implement (costing less than $100). We think that the “greening” of both transport and real estate will actually create huge opportunities for many people (starting with small business) to actually start to be able to implement a much more structurally compliant world. The public sector, which remains the largest employer for PWDs, still only has less than 100,000 employees with disabilities at the federal level. Or to put this another way, about 1% of the federal workforce has a disability. According to statistics, most federally employed PWDs toil at jobs two pay grades below their able-bodied peers.

We intend to give PWDs first hiring preference. We also intend to be the first company to be owned and operated, if not largely staffed by PWDs to ever go public. We think we are the only private sector company in America of this mindset today.

Title III of the ADA refers to access to public space. This is where most of the most contentious ADA litigation has to date been successfully litigated, particularly in states like Florida and California. This is the part of the law that brought us “curb-cuts” (slanted access to sidewalks) as well as wheelchair accessible public transportation (for example).

Section 508 is another interesting section of the statute that will also become far more relevant to most people – specifically that all websites must create access. Online programming and websites can be made “accessible” usually with the addition of tags to programming text. This insures that people who are visually impaired (for example) will be able to use software programs to browse through sites. It also refers to things like subtitling of video – including online video – obviously an area of the world where there is limited closed captioning.

While this would seem to be ostensibly the easiest place to implement such measures, unfortunately cyberspace remains as largely inaccessible as the rest of the world. The UN concluded in a 2008 global study that less than 4% of websites were compliant with the U.N.’s version of the law. There is not a single smartphone that is technically ADA compliant although the software on them could make traveling through cyberspace much easier for many people. To test how “compliant” the major IT players are these days, imagine being blind and trying to figure out Twitter. Neither Facebook or Google are compliant either (and there are other issues and laws that these two IT giants also routinely violate). To see how well “closed captioning” actually works on You Tube (or doesn’t) click on the red “CC” button at the bottom of your favorite video.

The most significant development in this arena happened in the middle part of the last decade with a landmark, national class action suit against the retailer Target, which firmly applied this rule to private sector websites (in the past it had only been applied to government sites). There have been some other interesting cases where technology and telco (telephones) have also been the subject of successful settlements if not litigation, which include a class action settlement brought by the National Association of the Deaf against a major international Wall Street bank to allow the deaf to trade via phone (the company did not provide any accessible technology on its end.)

Perhaps the most powerful section of the ADA, however, is Title II, a still little-understood measure of the law.

Unlike the Rehab Act, and like Title VII, the ADA also applies to state governments. This means that, for example, a state is allowed to create “separate” facilities to serve people with disabilities, but they cannot be demonstrably “unequal.”

And this is where we expect to start a debate about both the state of the disability community and the services that so many of them are forced to rely on.

There is no question that Medicaid/Disability needs reform. Starting with service delivery. We argue that transportation is also a huge area where this reform should happen, and not just with the use of “green ADA compliant” taxis. That’s just the starting point.

Since most people on “Medicaid” are in fact people with disabilities (on Disability Benefits), this of course profoundly if not disproportionately affects PWDs.

We believe that the ADA if not other associated legislation (the Civil Rights Act of 1991) requires the kinds of changes we have in mind.

What those are we will gradually elaborate on in future blogs.

The ADA is actually a very simple law. It requires that PWDs have the same access to life as the majority of the population.

We hope, not only in our service provision model but also in the car we use (the first ADA compliant taxi ever factory assembled) to continue to open doors for this community, as much as intend to provide top-quality “green” travel for the “able-bodied.”