July 24, 2015

By Jamie Loo

Law Bulletin staff writer

 

Many people need to look no further than their morning commute to see a result of the Americans with Disabilities Act.

The voice on Chicago Transit Authority buses and scrolling digital screens that announce each stop, which aid vision- and hearing-impaired riders, were the result of a settlement in 2001.

In the late 1990s, Barry C. Taylor, Equip for Equality vice president for civil rights and systemic litigation, said the nonprofit was constantly working on transportation cases for disabled clients who encountered broken bus lifts, bus drivers passing stops when they saw someone disabled and broken elevators at CTA stops. Elevator repair services were limited to weekdays, which left disabled train riders stranded on weekends.

“If an elevator went out on a Friday, nobody would repair it until Monday,” Taylor said. “Now they’ve extended their elevator service hours over the weekend.”

As the ADA turns 25 this Sunday, Taylor and Equip for Equality staff attorney Rachel F. Weisberg discussed some of the most influential ADA-centered court cases over the past 25 years during a Continuing Legal Education event at The Chicago Bar Association on Thursday.

Equip for Equality provides legal services, training and public-policy work to advance civil rights for people with disabilities in Illinois.

The lawyers explored how courts and other government agencies have interpreted the law as technology has changed.

The federal law was enacted in 1990 to protect the civil rights of people with disabilities and prohibit discrimination based on disability.

Under the ADA, a disability is defined as a “physical or mental impairment that substantially limits one or more major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment.”

In Bragdon v. Abbott, the first U.S. Supreme Court case involving the ADA in 1998, an HIV-positive woman with no symptoms sued her dentist after she was denied services. The court found that the “major life activities” language in the law included both external physical activities and internal bodily functions.

The Equal Employment Opportunity Commission and Department of Justice, which were interpreting and enforcing the ADA, maintained a general list of qualifying “major life activities,” Taylor said, and the Bragdon court stated that the list was not exhaustive. The court also ruled that there doesn’t need to be a link between the impaired activity and the discriminatory act itself.

Taylor said that despite Bragdon expanding what conditions were protected, litigation continued and different courts disagreed over what was covered as “major life activities.”

The confusion forced litigants to prove that they had a disability even before pursuing an ADA discrimination claim.

The lack of well-defined list of protected disabilities led Congress to pass amendments to the ADA in 2008 that included a list of major life activities and major bodily functions protected from discrimination under the law.

The amendments also made it clear that Congress wanted the law to be interpreted broadly, Taylor said, so that it could allow people with disabilities to move forward with their cases quicker.

“Disability was having a much higher hurdle than any other protected class,” he said. “This really brings disability in line with all the other protected classes which I think was Congress’ original intent.”

Another Supreme Court case, Olmstead v. L.C. from 1999, had big implications in Illinois, Taylor said.

In that case, two women with mental illness and developmental disabilities were living in a state-operated institution in Georgia and wanted to live in a community setting.

The state found that they were capable of doing so, but budget cuts prevented them from moving to such a facility. In Olmstead, the court ruled that “unjustified institutionalization” is considered discrimination under the ADA.

“Many people compared this decision to Brown v. Board of Education and how it impacted African-Americans,” Taylor said. “In that, separate is never going to be equal and segregating people is inherently discriminatory. … The act of segregation and isolation is discriminatory.”

Historically, Illinois placed people with disabilities into institutional facilities and nursing homes. Three different cases were filed in federal court in Illinois in the wake of Olmstead, and all resulted in consent decrees to create more community-based living options and programs.

“Over 7,000 people are now receiving community services that they weren’t before this litigation,” Taylor said.

The government’s responsibility to create accessible sidewalks, ramps, public buildings and emergency preparedness plans for people with disabilities have also been defined through court cases.

In Tennessee v. Lane in 2004, the Supreme Court ruled that states do not have immunity from lawsuits for lack of access to courts. The named defendant, George Lane, had paraplegia and could not get to his hearing because it was on the second floor of a courthouse with no elevators.

“He was held in contempt for not showing up in court,” Taylor said.

The Lane case was applied to a federal case in Indiana earlier this year which allowed a court spectator to sue for damages for denial of an interpreter where his mother was a criminal defendant.

Over the past 20 years, Weisberg said, courts have struggled with how to apply the ADA to the Internet and technology.

Several lawsuits against websites considered whether they connected to traditional brick-and-mortar institutions considered places place of public accommodation.

The first case against a Web-based company was National Association of the Deaf, et. al v. Netflix Inc. in 2012. Netflix’s online streaming service did not have closed captioning, and the DOJ filed a statement of interest in favor of the plaintiffs.

A Massachusetts federal court ruled that public accommodations are not limited to “physical structures” and that Netflix’s operation did fall into a few different ADA-protected categories such as “rental establishment” or “place of exhibition or entertainment.”

Netflix settled and agreed to provide captioning for all of its content by 2014.

But Weisberg said there is still some uncertainty under the law. A federal court in California dismissed a similar Netflix case a month after the Massachusetts ruling.

Weisberg said the Justice Department is working on a notice of proposed rulemaking on a website owner’s scope of obligation under the ADA and how to comply.

Although enforcement of the ADA and systemic change is still being fought in courts, Taylor said disability rights advocates have also turned to structured negotiations as an alternative to achieve change for people with disabilities.

In these situations, advocates approach companies with an accessibility issue and offer their expertise and suggestions for compliance before resorting to litigation.

One of the first structured negotiations in this arena was between the American Council of the Blind and Bank of America in 2001. The bank agreed to install talking ATMs so that people with visual impairments could operate the machines privately and independently.

Taylor said Equip for Equality worked locally with the former LaSalle Bank — now part of Bank of America — on a similar negotiation and that the results were so positive, Equip for Equality gave it an award.

“They did such a great job making their ATMs accessible, websites accessible, they provided alternative formats for people with disabilities,” he said. “They really bought into the concept of accessibility as a result of these structured negotiations.”