Likely the most significant law impacting disabled Americans is the Americans with Disabilities Act, or the ADA, codified at 42 U.S.C. §§ 12101 et seq. The ADA, like Section 504, is a civil rights law that prohibits discrimination against people with disabilities. The ADA, however, applies much more broadly than Section 504. The ADA governs all areas of public life, not just federal ones, including the justice systems in every state. This section outlines the history of the ADA and explains its general applications, as well as how it applies in the criminal justice system.

The ADA was first introduced in Congress in 1988. It had been 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 focus of the draft ADA was allowing people with disabilities to achieve greater levels of independence in their lives. While this seems a generally positive goal, passage of the ADA was not without problems that, occasionally, threatened to derail its progress. Even some disability advocates had concerns about the bill initially, including concerns about its intent and origins. Eventually, however, many activists were fighting for its passage, just as they had done for Section 504 of the Rehabilitation Act (Burgdorf, 2022).

3.3.1 Activism and Ableism

Dozens of disabled activists joined a culminating demonstration in favor of the ADA in March of 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, including being excluded from a regular school, being denied access to public transportation and being refused service at restaurants. Another protester was an 8-year-old girl with cerebral palsy, Jennifer Keelan, who led the crawl and remains a disability advocate today (figure 3.5; Kaufman, 2015).

Figure 3.5. 8-year-old Jennifer Keelan leads physically disabled protesters on the March 12, 1990, “Capitol Crawl.” (© AP Images). If you would like to learn more about Jennifer (now Keelan-Chaffins) [Website], including the children’s book she inspired and helped create, follow the link to her webpage.

In 2022, thirty-two years after she participated in the Capitol Crawl, activist and disability community leader Maria Palacios 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 participating in an historical event that, after years of struggle in the disability rights community, made such a big difference in the 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 people with disabilities, or 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.” Palacios (figure 3.6), who self-identifies as a “brown, disabled immigrant” and a “queer mother” also notes that the disability rights movement at that time still marginalized women and people of color (Cabrera & Ybarra, 2022).

Figure 3.6 shows activist Maria Palacios, in a wheelchair decorated with colorful signs and stickers.

The ADA officially became law in July of 1990, when it was passed by Congress and signed by then-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 focus was on elimination of 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 have observed that it was (and is) not so much an individual’s perceived “impairment” that causes problems for a person – 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, which attributes problems to a person’s disability (figure 3.7; UNICEF, 2017). The social model of disability is the far more practical approach to understanding barriers, as the environment is what can be changed. That is what the ADA sets out to do.

Fig 3.7 illustrates the medical model of disability, which conceives of disability as a personal challenge requiring individual solution versus the social model of disability which understands disability as part of the human condition that should be considered in constructing environments.

3.3.3 Coverage of the ADA

The ADA contains five different sections, called titles, which cover different aspects of life where discrimination based on disability is prohibited:

• Title I: Employers must offer people with disabilities equal opportunities in hiring, training, pay, etc.
• Title II: State and local governments (health care, social services, courts, etc.) must provide people with disabilities equal opportunity to benefit from programs, services, and activities.
• Title III: Public transit systems (bus, train) must provide people with disabilities equal opportunity to benefit from services.
• Title IV: Businesses (restaurants, doctor’s 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. (ADA.gov, n.d.)

Note that the ADA covers most, but not all, aspects of life. Some bans on discrimination against disabled people are covered by other specifically targeted laws, such as the Fair Housing Act and the Air Carriers Access Act mentioned earlier in this chapter.

In each of the areas covered by Titles I through V, the ADA prohibits discrimination against people with disabilities by ensuring their access to public settings (places, events, service, opportunities). This is accomplished, as the social model suggests, by changing the environment. There are endless examples of barriers that can occur for people with disabilities, and often these are substantial and exclusionary for the impacted person with a disability, but 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 change is not required; only reasonable changes are required by the ADA.

Ensuring access for a physically disabled person might require, for example, 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. 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 abilities are actually essential to job performance and advertise, hire, and promote accordingly. When done properly, this approach opens many types of job opportunities to people with many types of disabilities.

3.3.4 Mental Disorders as ADA Disabilities

A person receives protection under the ADA if they have a disability, as defined within the Act. If a person does not have a disability, the person is not included in ADA protections. One exception to this is a person who is a known “associate” (such as a parent caregiver) of a person with a disability; this very limited group of people are protected as well – lest employment or other opportunities be denied to them based on their connection to disability or responsibilities arising from their association.

A disability is defined within the text of the ADA as a physical or mental impairment that:

• substantially limits (this is very broad and includes any real limitation beyond, for example, a mild pollen allergy)
• one or more major life activities (also very broad – things like eating, walking, thinking, reading, and basic bodily functions).

More apparent 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. Also, many of the accommodations for physical disabilities are easily observable and commonly used by people with and without disabilities: ramps into buildings, elevators between floors, and lifts onto buses, just to name a few examples.

The ADA also protects those who experience less obvious or invisible disabilities, such as many mental disorders, but this was not always clear. In fact, courts interpreting the ADA when it was freshly passed in the 1990s were quick to exclude many mental disorders (and other brain-related disabilities) from the ADA definition of “disability” – thereby narrowing the scope of the law and excluding a large swath of disabled people from ADA coverage.

For people asserting a disability due to mental illness, courts began interpreting the law in an especially troublesome way. Some courts wanted to link ADA disability status for people with mental illness to their use of and benefits from medication. According to these courts, if medication helped a person be well, or could help a person be well, perhaps they weren’t actually “disabled” under the ADA. Thus, a person effectively treating a serious mental illness with psychiatric medications would not qualify for ADA accommodations. People with mental illness were caught in a no-win situation: lose ADA protection by taking effective medications, or fail to effectively manage their mental illness – a choice that might also deprive them of ADA protection (Jackson, 2010).

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 disabilities – whether they are currently being medicated or not. 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. Thus, they are entitled to ADA protections.

Current ADA regulations list numerous specific disabilities that are covered, but the list is not exclusive; 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, post-traumatic stress disorder, autism, intellectual disability, mood disorders (such as bipolar disorder), and traumatic brain injuries (ADA.gov, n.d.). These mental disorders are often called psychiatric disabilities when discussing application of the ADA or other disability-specific laws (ADA National Network, 2018).

3.3.5 The Americans with Disabilities Act: Licenses and Attributions

“The Americans with Disabilities Act” by Anne Nichol is licensed under CC BY 4.0.

Figure 3.5. Photograph of Capitol Crawl (c) AP Images. Image used under fair use.

Figure 3.6. Photograph of Maria Palacios © John F. Hartman is all rights reserved. Photo and quotation from newspaper article both used with permission from Maria Palacios.

Figure 3.7. Models of Disability © University of Alaska Anchorage. All rights reserved. Used with permission.

Figure 3.8. 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 3.9. CRIP CAMP: A DISABILITY REVOLUTION | Official Trailer | Netflix | Documentary by Netflix is licensed under the Standard YouTube License.