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The ADA and Civil Rights
Editorial paper not for legal precedence
The ADA is a civil rights law.
The ADA is a Law, passed by the United States Congress and signed July 26, 1990, by then President
George Bush, to complete the civil rights protections afforded to people with disabilities, their families and
care-givers. The ADA was a culmination of over three decades of work and very little of its language and
requirements are new, except for the breadth of their coverage.
In the 1970s, as the human rights agendas for people of color, women, children and the elderly took flight,
people with disabilities realized theirs was also an issue of human rights. In 1973 the US Congress declared
that it was unlawful discrimination for entities that received or benefited from Federal financial assistance to
segregate or discriminate on the basis of disability in their delivery of goods and services to the public. In
1976, Congress prohibited discrimination on the basis of disability by Commercial Airlines. And in 1980,
Congress added disability to the list of protected class citizens in the Fair Housing Act.
All the efforts on this front leading up to the ADA involved programs over which the government could hold
significant influence. The 1973 law allowed the government to withhold funds. The Air Carriers Act involved
FAA approved licensure. And the Fair Housing Act involved government mortgage insurance and approval
programs. By 1990, Congress believed the example had been set and that it was time to bring the private
sector up to speed.
The ADA establishes that people with disabilities are protected class citizens who have a “right of access” to
participation in the American Dream. Coverage is extended to spouses, partners, parents, children and caregivers
who may be discriminated against by their association or affiliation with the disabled person. This Law
knits together the coverages of its precedents and fills all their gaps to make a complete blanket of
coverage.
The ADA states, in no uncertain terms, that architectural barriers to usability by people with disabilities are
inherently discriminatory; that is they segregate people on the basis of a class distinction rather than
eligibility or merit. The ADA makes the existence of architectural barriers unlawful discrimination. Existing
properties, as well as new construction and renovation projects are equally covered. The “Grandfather”
clause in building codes is dead. Owners and operators of Public Accommodations (more on Public
Accommodations in a later essay) are under an immediate, permanent obligation to remove architectural
barriers. This is one of the major distinctions between the ADA and building codes.
The ADA is not a building code; and its published resemblance to prior building codes is an unfortunate
miscue.
The ADA protects the “right of access” that people with disabilities have to participation in their
communities. To define this protection, the Regulations that implement the Law contain minimum design
standards. These standards define what people with disabilities have a right to expect in the built
communities everywhere in the United States. When these standards are not met, the individual has a claim
of discrimination. Such claims are not filed at City Hall; they are a matter for investigation by the US Attorney
General, and are filed in the Federal District Court serving the location of claim. (This is somewhat over
simplified because it disregards differences in the enforcement of Titles I and II of the ADA which govern
employers and state and local governments.)
The “right of access” perspective of the ADA has coined phrases that have special meanings for enforcement
of the ADA, but that often get confused with similar sounding phrases with which we’re familiar from past
experience with building codes.
- Public Accommodations
- Commercial Facilities
- Readily Achievable
- Path of Travel (or 20-percent) Rule
It is interesting to that note that the United States came to the human rights perspective after discovering
the inherent flaws in the building code approach, while the member states of the United Nations are
beginning their explorations of this topic from the human rights perspective and discovering the need for
building codes. Apparently, it takes both a building official and an attorney to wake designers up to the
public trust they hold.
“The ADA and Civil Rights” is copyright Ellerbe Becket Inc.
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