Thursday, August 19, 2010

The 20th Anniversary of the Americans with Disabilities Act: The Limits of Anti-Discrimination Law

by Charles O'Mahony

The Americans with Disabilities Act (ADA) 20th Anniversary was celebrated on the 26th of July last. The ADA represents a significant landmark in the disability rights movement. It was the culmination of a civil society movement across the United States that fought hard to remove barriers that prevented persons with disabilities participating within their communities and society. The independent living movement that challenged the institutionalisation of persons with disabilities; the families of children with disabilities who challenged their segregation and isolation; and military veterans with disabilities formed part of a movement that made the ADA possible. For a history of the ADA see the Disability Rights and Education Defense Fund (DREDF) website. The Act was revolutionary in prohibiting discrimination on the basis of disability. It has a wide-ranging scope extending to state and local governments, employers, public and private transportation, public accommodations and to the telecommunications sector. It is not overstating the importance of the legislation to say that the ADA was radical. However, it was only radical “in comparison to a shameful history of outright exclusion and segregation of people with disabilities” see DREDF link above. However, a new survey of persons with disabilities (commissioned by the Kessler Foundation and the National Organization on Disability to coincide with the anniversary of the ADA) suggests that persons with disabilities face many of the same barriers and issues that they faced in 1990 when the ADA was first enacted. To read the main findings of the survey see: This is the sixth survey over the past 24 years that has sought to assess the quality of life of persons with disabilities. The surveys examined a wide range of issues with a view to measuring the gaps between people with and without disabilities using indicators to track them over time. 10 indicators of significant life activities of Americans with disabilities were identified – these included:

1. Employment
2. Income
3. Education
4. Health care
5. Access to transportation
6. Socializing
7. Going to restaurants
8. Attendance at religious services
9. Political participation
10. Life satisfaction
In the latest survey three new indicators were added:
1. Technology
2. Access to mental health services
3. Overall financial situation

This survey forms part of a larger body of research in the United States that reveals the limits of anti-discrimination law in breaking down barriers that prevent persons with disabilities from participating in their communities and within society. In Ireland a well-developed anti-discrimination legislative framework has been in place for over 10 years. Like the ADA the Employment Equality Acts place an obligation on employers not to discriminate on the basis of a disability. In addition the Act places an obligation on employers to provide reasonable accommodation to persons with disabilities. Despite these important improvements in our law research has revealed that persons with disabilities in Ireland are still far less likely to have a job when compared to others of working age and the participation gap is largest for people whose disability is most restrictive.

For a discussion on the employment of persons with disabilities see “Irish Report on the employment of disabled people in European countries, which was co-authored by Charles O'Mahony and Claire Bruton for the Academic Network of European Disability Experts (ANED)