3.3 The Americans with Disabilities Act
Likely the most significant law impacting disabled people in the United States is the Americans with Disabilities Act (ADA), codified at 42 U.S.C. 12101 et seq. The ADA is long and detailed, but the very first section outlining the findings of Congress and the purposes of the law is worth reading to get a sense of its ambitions and the powerful reasons it was passed. You can learn more about the first section of the ADA [Website] if you would like to take a look. Simply, the ADA, like Section 504, is a civil rights law that prohibits discrimination against people on the basis of disability. The ADA, however, applies much more broadly than Section 504. The ADA governs all areas of public life, not just federally-funded ones, including the justice systems in every state. This section outlines the history of the ADA and explains its general requirements, including its application to mental disorders.
The ADA was first introduced in Congress in 1988. It was modeled after the Civil Rights Act of 1964, striving to provide access to opportunities for people with disabilities that is equal to that enjoyed by people without disabilities. An important goal of the drafters of the ADA was allowing people with disabilities to achieve greater levels of independence in their lives. While this seems like an uncontroversial goal, passage of the ADA was not without problems that, occasionally, threatened to derail its progress. Even some disability advocates had issues with the bill initially, including concerns about its intent and origins. However, many activists eventually fought for its passage, just as they had done for Section 504 of the Rehabilitation Act (Burgdorf, n.d.).
Activism and Ableism
Dozens of disabled activists joined a climactic demonstration in favor of the ADA in March 1990, just months before the act was finally signed into law. The “Capital Crawl” demonstration was intended to illustrate the barriers faced by disabled people; protesters left their wheelchairs and other mobility aids to crawl up the steps of the U.S. Capitol. One of the demonstrators was Michael Winter, a wheelchair user with a genetic disorder. At the protest, Winter shared the many events in his life where he experienced segregation and discrimination, including being excluded from a regular school, denied access to public transportation, and refused service at restaurants. Another protester was an 8-year-old girl with cerebral palsy, Jennifer Keelan (pictured in figure 3.7), who led the crawl and remains a disability advocate today (Kaufman, 2015).
In 2022, 32 years after she participated in the Capitol Crawl, activist and disability community leader Maria Palacios (pictured in figure 3.8) shared her impressions of the event in a newspaper interview. Palacios was only 24 years old when she participated in the demonstration. She felt “insignificant and yet so important at the same time” to be taking part in a historic event that, after years of struggle for the disability rights community, made such a big difference in people’s lives. Palacios recalled that, prior to the passage of the ADA, “we could just be denied access to life.” But during the Capitol Crawl, she truly felt for the first time “that we deserve[d] to make those demands, that we deserve[d] to say: ‘We are here. We deserve to be here.’”
Palacios today observes lingering discrimination against or devaluation of people with disabilities, a problem known as ableism: “I hate to say this, but because of ableism—and it’s so deeply rooted in the social structure of our culture—very little has changed” (figure 3.9). Palacios, who self-identifies as a “brown, disabled immigrant” and a “queer mother” also notes that the disability rights movement at the time of the passage of the ADA still marginalized women and people of color (Cabrera & Ybarra, 2022).
https://www.youtube.com/watch?v=OdK9Av9XgjE
The ADA officially became law in July 1990, when it was passed by Congress and signed by President George H.W. Bush. People with disabilities had long been excluded from so many aspects of life, and the ADA was poised to open the door to real change. Notably, the law’s focus was on eliminating barriers in the environment where disabled people were living, working, or traveling—whether those barriers were in the form of negative attitudes or inaccessible facilities. Many people with disabilities observe that it is not so much their perceived “impairments” that cause them problems—rather, it is a world that is often hostile to their differences. This understanding is called the social model of disability, in contrast to the medical model of disability (as shown in figure 3.10), which attributes problems to a person’s disability itself rather than to the environment (Kurtsikidze, 2017). The social model of disability is the far more practical approach to understanding barriers because the environment is what can be changed. That is what the ADA sets out to do.
SPOTLIGHT: Section 504 and Disability Activism
Collective activism was critical to the conception, passage, and enforcement of the ADA and other laws discussed in this chapter. Prior to the protests that forced the implementation of the Section 504 civil rights provisions, much disability advocacy was done at an individual level—such as parents seeking access to education for their children. Significantly, the Section 504 protests brought together many groups of people with various disabilities from different demographics in pursuit of one goal: recognition of their right to participate as equals in society (figure 3.11). If you would like to know more about—and see powerful footage of—the Section 504 protests, consider watching the 18-minute documentary “The Power of 504” [Streaming Video], produced by the Disability Rights and Education Defense Fund.
At the culmination of the Section 504 protests, victory was announced as the legal regulations that protesters wanted were finalized. At the celebration, organizer Kitty Cone’s speech to the gathered crowd expressed the importance of collective action—both in getting results and in allowing protestors to connect with like-minded others, emerging from the isolation that affects so many people with disabilities. You may listen to Kitty Cone’s speech here [Recording] if you would like. This short Smithsonian video “How Did Kitty Cone Change Disability Rights?” [Streaming Video] also reflects on the Section 504 demonstrations, and it speaks in particular to the importance and inspiration of Cone’s work as a lesbian disability activist.
If you are interested in an engaging and fascinating story of the larger disability rights movement and a view into the particular challenges of being a disabled female activist, please read Judith Heumann’s exceptional book, Being Heumann: An Unrepentant Memoir of a Disability Rights Activist [Website]. Heumann reflects on the importance of diversity in the success of the Section 504 protests—noting that the joint efforts of all impacted people were required to truly communicate the need for systemic change and to codify those changes in the law. Disability activism was empowered by gender diversity, racial diversity, and disability diversity. If you want a quick glimpse of Heumann in her own words, this 10-minute interview with Trevor Noah on the Daily Show [Streaming Video] includes stories from Heumann’s book as well as her thoughts on the ongoing need for people with invisible disabilities, such as mental disorders, to get support and overcome stigma.
Finally, consider watching and being inspired by the award-winning film produced by Barack and Michelle Obama (preview linked in figure 3.12) about the young people who were part of the grassroots disability rights movement: Crip Camp: A Disability Revolution [Streaming Video].
Coverage of the ADA
The ADA contains five different sections, called titles, that cover different aspects of life where discrimination based on disability is prohibited:
- Title I: Employers must offer people with disabilities equal opportunities—equivalent to those offered to nondisabled people—in hiring, training, pay, and other work-related areas.
- Title II: State and local governments (e.g., health care, social services, courts) must provide people with disabilities equal opportunity to benefit from programs, services, and activities.
- Title III: Public transit systems (e.g., buses, trains) must provide people with disabilities equal opportunity to benefit from public transportation.
- Title IV: Businesses (e.g., restaurants, doctors’ offices, taxis, office buildings) must provide people with disabilities equal opportunity to access their goods or services.
- Title V: Telephone companies must provide accessible service to people with hearing and speech disabilities (Americans with Disabilities Act, n.d.)
Note that the ADA covers most, but not all, aspects of life. Some bans on discrimination against disabled people were addressed in separate, more targeted laws, such as the Fair Housing Act and the Air Carriers Access Act mentioned earlier in this chapter (figure 3.13).
In each of the areas covered by Titles I through V, the ADA prohibits discrimination against people with disabilities by ensuring that their access to public settings (places, events, services, and opportunities) is equivalent to that of people without disabilities. This is accomplished, as the social model suggests, by changing the environment, where feasible. There are endless examples of barriers that can occur for people with disabilities, and these barriers are often substantial and exclusionary for the person with a disability. However, many barriers are relatively easily removed by the organization or facility that contains the barrier. If the barrier, whatever it is, is too burdensome to change, then that change is not required by the ADA; only reasonable accommodations (discussed more in the next section) are required by the ADA.
For example, ensuring access for a physically disabled person might require a building manager to widen a doorway or rearrange furniture. Sometimes activities might simply be relocated to a more accessible space in a particular building. An employer who is meeting ADA obligations would have to identify and remove other sorts of barriers as well. For example, employers cannot require that a person be able to do things (e.g., work without breaks) if that is not, in fact, an essential element of a particular job. Rather, an employer must consider what qualifications or abilities are actually related to job performance, and the employer must advertise, hire, and promote accordingly. When done properly, this approach opens many job opportunities to people with many types of disabilities.
Mental Disorders as ADA Disabilities
A person falls under ADA protection if they have a disability as defined within the ADA. Generally, if a person does not have a disability, the person is not protected under the ADA. One exception to this is a person who is a known close associate (such as a parent caregiver) of a person with a disability. This limited group of people is protected as well, lest employment or other opportunities be denied to them based on their connection to disability or responsibilities arising from their association.
Disability is defined under the ADA as a physical or mental impairment that substantially limits one or more major life activities.
- Substantially limits is applied broadly and includes any real limitation beyond, for example, inconvenience imposed by a mild pollen allergy.
- Major life activities is also applied broadly and includes eating, walking, thinking, reading, and basic bodily functions
(Americans with Disabilities Act, n.d.; U.S. Department of Justice, Civil Rights Division, n.d.).
But what counts as a physical or mental impairment? Physical disabilities, such as those requiring a mobility device like a wheelchair, are often front of mind when thinking about accessibility and inclusion under the ADA because those disabilities are more obvious to outside observers. Many accommodations for physical disabilities (e.g., ramps into buildings, elevators between floors, and lifts onto buses) are commonly observed and used by people with and without disabilities.
The ADA also protects those who experience less obvious or invisible disabilities, such as many mental disorders. However, this fact was not always clear. Courts interpreting the ADA when it was newly passed in the 1990s were quick to exclude many mental disorders from the ADA definition of disability, thereby narrowing the scope of the law and excluding a large swath of disabled people from ADA protection (figure 3.14).
As applied to people with mental illness, courts began interpreting the ADA in an especially troublesome way. Some courts wanted to link ADA disability status for people with mental illness to their use of and potential to benefit from medication. According to these courts, if a person’s condition was subject to improvement, or mitigation of symptoms, through the use of medication, perhaps that person wasn’t actually impaired under the ADA. Thus, a person who could effectively treat the symptoms of a serious mental illness with psychiatric medications would not be considered disabled and would not qualify for ADA accommodations. Likewise, a person who could (but did not) take medications—perhaps due to lack of access or intolerable side effects—might be considered “wilfully” impaired, rather than disabled under the law. People with treatable mental illness were caught in a no-win situation: they could lose ADA protection either by taking medication or by not taking medication (Jackson, 2012).
Congress eventually took action to address several ADA issues, including the narrowing of the definition of disability for those with treatable mental illness. The 2008 amendments to the ADA ensured that common mental disorders were specifically included in ADA protections. The amendments also clarified that these conditions would be evaluated in their “unmitigated,” or unmedicated, state. It is now understood that serious mental illnesses like bipolar disorder are impairments, regardless of the use or impact of medication. In other words, whether or not a person is taking medication for their bipolar disorder, and whether or not their bipolar disorder is well-managed by medications, they are considered to have a disability under the ADA based on their diagnosis (U.S. Department of Justice, Office of the Attorney General, 2016).
Current ADA regulations list numerous specific disabilities that are covered, but the list is not exhaustive; other conditions can qualify as well. Disabilities that trigger ADA protection include diabetes, HIV, cerebral palsy, deafness, blindness, and epilepsy. Some examples of covered disorders especially relevant to this text (and discussed in more detail in Chapter 2) are anxiety disorders, PTSD, autism, intellectual developmental disorder, mood disorders (such as bipolar disorder), and traumatic brain injuries. Any of these mental disorders may be identified as a psychiatric disability or a behavioral health disability when discussing the application of the ADA or other disability-specific laws (Americans with Disabilities Act National Network, 2018).
Licenses and Attributions for The Americans with Disabilities Act
Open Content, Original
“The Americans with Disabilities Act” by Anne Nichol is licensed under CC BY 4.0.
“Spotlight: Section 504 and Disability Activism” by Anne Nichol is licensed under CC BY 4.0.
Open Content, All Rights Reserved
Figure 3.7. Photograph of Capitol Crawl by AP Images is used under fair use.
Figure 3.8. Photograph of Maria Palacios by John F. Hartman is all rights reserved. Photograph and quotation from newspaper article both used with permission from Maria Palacios.
Figure 3.9. This is Ableism by Inclusion Canada is licensed under the Standard YouTube License.
Figure 3.10. Models of Disability by University of Alaska Anchorage is all rights reserved. Used with permission.
Figure 3.11. Image of protest button from the National Museum of American History, Smithsonian Institution, Smithsonian Learning Lab, retrieved September 10, 2023, is included under fair use.
Figure 3.12. CRIP CAMP: A DISABILITY REVOLUTION | Official Trailer | Netflix | Documentary by Netflix is licensed under the Standard YouTube License.
Figure 3.13. Photo of Black Dog Wearing Yellow Bandana in Front of a Plane by Jeswin Thomas on Unsplash.
Figure 3.14. Photo of a Woman with Autism by Alexander Grey on Unsplash.
