Lately, I have been receiving calls at the ADA Center in which I’ve had to dispel some common misconceptions about the law. At the same time, I’m experiencing a personal life lesson that brings home some of the topics I explain to callers while at work.
Misconception #1 - Grandfathering
The first misconception that I need to get out of the way is that an old building is “grandfathered” from compliance with the ADA. For anyone who has read my previous postings, we know this is not true. This myth prevents some people with responsibilities under the ADA from performing their due diligence. It’s the path of least resistance for those who choose to believe it. I’m both fascinated and disappointed that, in our culture, we believe people when they repeat what they heard from someone else.
Another version of “grandfathering” is when people think a historic building doesn’t have to meet the requirements of the ADA. An old building is not historic simply because it is old. A historic building should get registered on a State or National registry for historic preservation. Some exceptions from the ADA Standards can apply when a State Historic Preservation Officer believes that an alteration would threaten the historic significance of a specific aspect of the project. Having a historic building is not a get-out-of-jail-free card when it comes to access under the ADA. Public entities and accommodations that operate from historic buildings have responsibilities to provide access under the ADA. They should use proper procedures to take exceptions if providing access might endanger the site’s historic significance.
Misconception #2 – Unfunded Mandate
The next misconception is that the ADA is an “unfunded mandate.” A few business owners have muttered this phrase upon learning they have responsibilities under the ADA . I understand their point of view; it can cause an expense they did not expect. Yet, the law has existed for almost 30 years at this point. In most cases, the law pre-dates many business decisions. People should understand that the ADA is a Civil Rights law, modeled after the Civil Rights Act. In the 1960’s, I’m sure lots of people were bemused to find out they couldn’t provide separate facilities for white people and black people. These people probably moaned about the unfunded mandate as well. Now we look back on that kind of thinking with disdain.
How is it any different to exclude a person because life chose them to incur a disability? The law is not new and exists to protect a huge class of individuals from systemic discrimination. One’s obliviousness to the law should be the focus of their contempt if they believe the notion of an “unfunded mandate.” The ADA has a lot of limitation language in it, such as the phrases “readily achievable” and “reasonable.” A business does not have do anything that will cause it to fundamentally suffer or go out of business. Many physical access improvements benefit businesses in the long term. The bottom line is that ADA is a law which has required access for a very long time. It is the responsibility of a business to know what laws they must obey and plan/budget accordingly.
In the public sector, government exists to serve the people, all people, including people with disabilities. Program Access, the standard to which local governments get held, mandates serving people with disabilities using all the resources they have. Not all existing facilities need remodeling for access if other means can provide the same opportunities to people with disabilities. New buildings need to get designed with ADA compliance in mind, but not all the older stuff needs to get changed unless there is no alternative.
Misconception #3 – Proof of Disability
The last concept I wanted to pose as a misconception is that of the need for “proof” of disability. Employers have a right to ask for proof from a medical professional when the employee’s disability is not obvious and they are requesting a change. That’s pretty much it when it comes to people with disabilities needing to prove they have a disability.
I’ve heard arguments, mostly around service animals, that people with disabilities should have to carry documentation to prove disability so that it’s easier for everyone else. As a Civil Rights law, congress was very careful not to repeat the failings of the past. There was once a time in Germany when people of the Jewish Faith had to identify themselves and provide proper documentation to take part in society. That did not work out very well for those people.
Requiring documentation is also a form of control, a barrier. Not everyone with a disability lives in a household with disposable income. Not everyone with a disability has health insurance to assist. Not everyone with a disability lives near the correct specialist to diagnose the reality they may have lived their entire life.
Currently, I’m trying to get scheduled for an EMG to get documentation of my disability. The purpose is to supply to the international governing body for Paralympic Cycling. My experience is that it’s difficult to find a specialist who will return a phone call or has time for me within 6 months. Insurance company representatives and receptionists at medical offices can be rude. It’s not a fast or enjoyable experience trying to schedule this 30-minute test. I can’t imagine how disempowered and frustrated I would feel if I needed to go through this to go to the movies or out to eat. There will always be people who take advantage of the system for their personal gain. Requiring the law punish those who abide by it because of those who don’t is not the answer.
These 3 examples are the stand-out misconceptions I encounter most often. The truth of the ADA is it’s a very difficult law to understand. The more you understand the law, the more you realize that it was written to protect all people affected by it. The entities covered by the ADA have various responsibilities and their own rights under the law. Every circumstance is different. The generally "vague" language of the ADA was purposeful to be apply to a countless variety of human experiences.