Fall 2020 Disability RAPP: The 30th Anniversary of the ADA DRC-NH is dedicated to eliminating barriers for people with disabilities across the state. Contact us to schedule a free consultation on a disability discrimination issue with an experienced attorney. Know Your Rights: Issue Area Spotlights Special Education and COVID-19 Children with disabilities are among […]
Fall 2020 Disability RAPP: 30th Anniversary of the ADA Issue Overview
It’s been 30 years since the Americans with Disabilities Act (ADA) was signed into law. From employment and communication to transportation and voting, we explore how the ADA has fundamentally altered our understanding of what it means to live with a disability.
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Stewards of the Revolution
Looking Back on the Passing of the ADA
By Vanessa Blais
Most people in the disability community
know the image of President George H. W. Bush in the White House Rose Garden signing the Americans with Disabilities Act (ADA) in July 1990. However, up until the recent documentary Crip Camp, many did not know the details of the long and arduous fight for disability rights that culminated in the ADA.
Prior to the passing of the Act, rallies
were held throughout the country, in-
cluding those held in New Hampshire.
The New Hampshire State House rally was attended by many advocates and legislators from across the state, as well as by Justin Dart Jr., a prominent disability rights activist who contracted polio as a young man. Dart and his wife, Yoshiko – herself a strong disability rights activist – traveled to every U.S. state, Puerto Rico, and Guam, advocating for the passing of the Act. Dart experienced discrimination throughout his life, including being denied a teaching certificate from the University of Houston because of his disability.
A man known for his candor, Dart at one point was asked to resign as lead to the Rehabilitation Services Administration* because of his comments on the ineffectiveness of the agency, calling it “a vast, inflexible federal system which, like the society it represents, still contains a significant portion of individuals who have not yet overcome obsolete, paternalistic attitudes about disability.”
Dart, along with many others, made his voice heard in Concord in 1990. Roberta Gallant, a member of the NH Council on Developmental Disabilities and the Self-Advocates Leadership Team, remembers the rally well. “There was a huge turnout,” Gallant shares. “I held up a sign. My sister, Jocelyn Gallant, also attended and held a sign. People from the Bureau of Developmental Services, the Disability Rights Center, the Governor’s Commission [on Disability], the Parent Information Center, the NH Council on Developmental Disabilities, Granite State Independent Living, and Health and Human Services were all there. The Concord Monitor, Union Leader, and WMUR-TV reported on the rally. As a representative of people with disabilities, I gave a speech on the platform about receiving accommodation from businesses throughout New Hampshire.”
Mark Race, current Supervisor of New Hampshire National Spinal Cord Injury Association and GSIL Peer Support, shared his memories. “My mentor, Sally Conway, played her acoustic guitar and we sang along outdoors on that beautiful day,” Race remembers. “It was powerful. Senator Tom Harkin advocated that the Act be a civil rights law and not something special. The motto was Same, Not Special because when is it special to be able to get into a building?”
Education = Inclusivity
The pushback against the ADA, helped along by people such as actor Clint Eastwood, who was sued for neglecting to make his California resort fully accessible, later motivated Justin Dart to help create Justice for All. (Eastwood won the case, calling it a “victory for the little guy.”) The mission of Justice for All was to educate, motivate, and support advocates throughout the country to protect not only the legislation, but the values of the ADA from systemic attempts to weaken them. Dart later helped to form the American Association of People with Disabilities, an organization dedicated to furthering the implementation of the ADA and advocating for the legal rights of people with disabilities. We can learn a great deal from Dart’s constant dedication to this cause and his resistance to complacency.
While the lives of people with disabilities have dramatically changed since the NH ADA rally, the fight continues for acceptance and inclusion.
At the end of his life, Justin Dart ended one of his many writings with these words: “Beloved colleagues in struggle, listen to the heart of this old soldier. Our lives, our children’s lives, the quality of the lives of billions in future generations hangs in the balance. I cry out to you from the depths of my being. Humanity needs you! Lead! Lead! Lead the revolution of empowerment!”
For many, the passing of the ADA was a final declaration that people with disabilities deserve the same rights, opportunities, and quality of life as
people without disabilities. However, as with other culture-changing legislative policy, the ADA has a past, a present, and a future. That future depends
on the stewardship of these rights. It also involves continuing to educate our communities on the benefits that inclusivity has for all of us.
Vanessa Blais is the NHCDD Project Manager.
ADA 30 Logo Credit: ADA National Network (adata.org)
*The Rehabilitation Services Administration is a federal agency established to assist state and other agencies in providing vocational rehabilitation (VR) for people with various disabilities.
Just down the road from Woodstock, NY in the late 1960s and early 1970s, a parallel revolution blossomed in a ramshackle summer camp for disabled teenagers. Steeped in the humor and music of the era, Crip Camp explores the universal experience of summer camp awakenings that would transform lives and shape the future of the disability rights movement. Told from the point of view of former camper Jim LeBrecht, the film traces the journeys of campers up to the present day, in this compelling and untold story of a powerful journey towards inclusion.*
This spirited look at grassroots activism is executive produced by Barack and Michelle Obama.
*International Documentary Association
Available to view on Netflix
“All of us recognize the crucial role transportation plays in our lives. It is the veritable lifeline which enables all persons to enjoy the full economic and social benefits which our country offers. To be denied effective transportation is to be denied the full benefits of employment, public and private services, and other basic opportunities.”
— Rep. Luken while debating the ADA (1990)
Thirty years ago, the Americans with Disabilities Act (ADA) was passed. This landmark piece of civil rights legislation aims to prohibit discrimination and create more access for people with disabilities in all facets of life. Specifically, Title III of the ADA governs “public accommodations” that are operated by private entities. Public accommodations provide people with disabilities access to the goods and services offered to the rest of the general public. For instance, access for people with disabilities must be provided at places of recreation such as stadiums, zoos, and museums. There must be accommodations available to attendees of public displays, like galleries. Sales or rental establishments must also comply, as must social services centers. Denying someone access to or preventing use of a good, service, or accommodation because of their disability is discrimination. 1
Ridesharing has become a $60 billion international industry, with projections of a quarter of a billion dollars in market value within the next five years. The business model is based on a simple premise: riders use an app on their phone to arrange one-way service on short notice, using a credit card or PayPal to complete the transaction.The largest companies within this space are Uber and Lyft.
Uber claims that its technology is “helping to increase mobility and independence for riders with disabilities….” One way that Uber tries to accomplish this is through specialty services such as UberWAV, which offers wheelchair-accessible vehicles that can accommodate riders with disabilities. UberAccess and UberAssist offer drivers who are trained and certified to assist passengers getting in and out of vehicles with assistive devices like walkers, but they don’t offer wheelchair ramps.
Tony Coelho, co-author of the ADA, is quoted on Uber’s website stating that “WAV will empower people requiring wheelchair-accessible vehicles to get a ride when they need one simply by pressing a button.”2
But how are UberWAV and other ridesharing apps working in practice? Many people who use wheelchairs have reported that Uber and Lyft have substandard or even non-existent services for them. 3 Significantly, accessible ridesharing options such as UberWAV are not available in New Hampshire. Even for a city like Manchester, accessible Uber or Lyft options are not available. 4 Only the standard Uber and Lyft services, including UberX, UberXL, Lyft and Lyft XL, are available to New Hampshire residents.
Although ridesharing companies are working to provide accessible services to people with disabilities, these services often fall short and are not equally available to all people with disabilities. Even when services are purportedly available, discriminatory behavior can occur. For example, during a vacation to New Orleans for Mardi Gras, Dorene Giacopini ordered a ride on her rideshare app to go to dinner with her husband. Ms. Giacopini has spina bifida and needs to use a wheelchair for mobility. When she saw the car approaching, the driver saw her wheelchair and just kept on driving. Reflecting on this experience, Ms. Giacopini said, “[I]t was incredibly frustrating…it makes you feel like you’re being treated as a second-class citizen, that you don’t count.” 5
Melissa Riess, an attorney with Disability Rights Advocates, says [referring to Lyft] that “[t]here is not a place in this country where they are providing wheelchair-accessible service at a level which is equivalent to what they provide to people who don’t need wheelchair-accessible service.” This, she says, is discrimination. 6
To resolve this issue, people with disabilities have been taking legal action against ridesharing companies. Ms. Giacopini is one of the plaintiffs in a class-action lawsuit against Lyft. This lawsuit, like similar lawsuits against Lyft and Uber in New York, Chicago, and other cities throughout the country, alleges that ridesharing companies are in violation of the ADA.
However, winning an ADA lawsuit against these ridesharing companies is proving more difficult than many first envisioned. Generally, Title III of the ADA requires transportation services like taxis to be made more accessible. Whether ridesharing companies like Uber and Lyft are subject to Title III is still an unsettled question. While Title III does not provide one clear definition of a public accommodation, the ADA lists types of private entities that are considered public accommodations.
Many people have made the argument that if ridesharing companies are considered
public accommodations, then they most likely fall within the “services operated by private entities” category. This category states that “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of specified public transportation services provided by a private entity that is primarily engaged in the
business of transporting people and whose operations affect commerce.” 8
Uber and Lyft have argued that they are not actually public accommodations and should not be subject to the accessibility requirements of the ADA. The ADA considers private entities to be a type of “public accommodation” if they are “primarily engaged in the business of transporting people.” Uber and Lyft have tried to argue that they are primarily technology companies, not transportation companies, and because of this, they argue that they are exempt from ADA regulations. So far, judges have mostly rejected this argument and allowed lawsuits against Uber and Lyft to move forward.
Pending and future litigation will provide more answers about the type of access and accommodation that must be provided by ridesharing companies. Because of their advocacy efforts, people with mobility impairments and other disabilities are making progress to ensure that companies like Uber and Lyft change their policies to make their services more accessible.
1 42 U.S.C. § 12182(a).
In 1990, President George H. W. Bush said that by signing the ADA into law he was taking a sledgehammer to “the shameful wall of exclusion.” He was not merely referring to toppling concrete barriers such as stairs, sidewalk curbs, and inaccessible transit. He was also recognizing that the most pernicious parts of that wall were heavily fortified by overt and implicit prejudices as well as stereotypical and antiquated assumptions.
Thirty years later, progress continues on both fronts. The country’s architecture, technology, and infrastructure are more readily accessible to those with disabilities. Slowly, biases that segregate, isolate, institutionalize and cause other irreparable harm to those with disabilities are also being eliminated. However, the fatal threats of structural racism and the coronavirus make it clear that far more must be done to secure equal justice for all people with disabilities of every age, race, ethnicity, culture, language, and sexual identity in the U.S.
Communication FIRST, the only national human and civil rights organization led by people with significant communication disabilities, is committed to help meet this challenge. There are currently about five million children, teenagers, working age persons, and older adults in our country who cannot rely on natural speech to express themselves. Due to advances in law, technology, and related factors, more of us now have access to augmentative and
alternative communication (AAC) strategies to communicate and live our lives.
However, many needing AAC still lack effective access to it, and consequently experience increased risk of institutionalization, abuse1, lower levels of education, employment, and poorer health outcomes.2 These outcomes are all tied to age-old biases and myths that brand us as having little to say or to contribute to our families, communities, or nation.3 Black and brown people with significant communication disabilities often fare much worse than
caucasian people with disabilites.4
The promise of the ADA is that we will live as equals in our communities. To do so, we must be able to communicate, connect, and find a shared sense of respect, understanding, and belonging. It is time to rip down the remaining shameful wall of exclusion, isolation, and injustice.
Bob Williams is the Policy Director of Communication FIRST. He has worked on the closing of Forest Haven, the passage of the ADA, and held key roles in the federal government and elsewhere to advance disability civil rights since the 1970’s.
1 “Supporting Survivors of Sexual Assault with Intellectual and Developmental Disabilities,” [Radio series episode]. (2018, January 8). NPR.
2 The Promise of Assistive Technology to Enhance Activity and Work Participation. (2017). National Academies of Sciences, Engineering, and Medicine
3 Alper, M. (2017). Giving voice: Mobile communication, disability, and inequality. Cambridge, Massachusetts ; London, England: MIT Press.
4 Fried-Oken, M., & Bersani, H. A. (2000). Speaking up and spelling it out: Personal essays on augmentative and alternative communication. Baltimore: Paul H. Brookes Pub.; Peña, E. V. (2019). Leaders around me: Autobiographies
of autistics who type, point, & spell to communicate.
Months have passed since Governor Chris Sununu’s original stay-at-home order went into effect in response to the pandemic. The order, which closed the physical workplace and barred in-person operations of all non-essential businesses, caused many employers to adopt accommodations that allowed their employees to work from the safety of their homes. By forcing people all over the state to shelter in place, the coronavirus introduced Granite Staters to what many people with disabilities have long required to work successfully.
This summer marks the 30th anniversary of the passage of the Americans with Disabilities Act (ADA); an historic event that deserves consideration as we take steps to reopen the economy. The employment section of the ADA is meant to reduce or eliminate the barriers that prevent people with disabilities from obtaining and maintaining employment. The ADA requires covered employers to provide reasonable accommodations to qualified people with disabilities so long as the employee can still do the essential functions of the job. The accommodation must also not create an undue burden for the employer, e.g., if the requested accommodation is excessively difficult for the employer to implement or is prohibitively expensive.
Individuals with disabilities have long fought for – and often denied – flexibilities that have become a “new normal” during the coronavirus: flexible work hours, remote working environments, and alternative communication formats. This leaves advocates and workers with disabilities wondering if this could mark a turning point for the Granite State by offering more flexible work accommodations. Or, once the pandemic is over, will we return to business as usual?
Tim Sink, President of the Greater Concord Chamber of Commerce, believes the new norm will likely be somewhere in the middle. “I think it will be a mix of how we used to do business and combining it with the best of what we’ve learned during this crucial period,” says Sink. Like the rest of the country, the Greater Concord Chamber of Commerce made several adjustments to remain open during the pandemic, such as hosting virtual board meetings, using Zoom in place of in-person meetings, and offering flexible work hours to employees. “We had to scramble,” says Sink, “but we did it, and now that it’s in place, we can do it again.”
The ability to work from home has been particularly impactful for those with mobility challenges. Chad Payette, a dedicated and talented office assistant in Concord, says, “Working from home is great.” Although he does miss his colleagues, Payette has saved significant time by telecommuting. “It’s easier to work more hours from home for somebody like me who needs an aid to drive me to work and help set up my station.” Payette imagines that some of the employment barriers that people with spinal injuries often face, such as reliable transportation and physical workspace adjustments, may be lessened if working from home is more widely offered.
The pandemic has generated real solutions for better employment opportunities for people with disabilities, and our successes should be leveraged, not forgotten once the state reopens.
• NH DHHS COVID-19 Tools for Businesses and Employers
• SourcesAmerica (2020). How COVID-19 is Reshaping the Future of Work for Persons with Disabilities
Disclaimer: This article does not contain legal advice and should not be relied upon as legal advice.
Contributor: Tim Sink, President, Greater Concord Chamber of Commerce
Contributor: Chad Payette, Office Assistant, University of New Hampshire Institute on Disability
Romy Eberle is the Marketing and Communications Specialist at the UNH Institute on Disability.
One of the many fundamental goals of the Americans with Disabilities Act is to provide equal opportunities for employment to people with disabilities.
Employees with disabilities are productive, resilient, dedicated workers who enhance and diversify their workplace culture. However, in New Hampshire, only 43.8 percent of people with disabilities, ages 18-64, are employed, compared to 82.6 percent of their peers without disabilities.1 Nearly one in five (or 17%) of NH job seekers, ages 18-64, has a disability.2 In order to ensure equal opportunities in the workforce, barriers in the employment hiring processes must be identified, called out, and eliminated.
Employers are required to provide reasonable accommodations throughout the hiring process for job applicants with disabilities.3 Employers and job applicants alike are often not well versed in these rights. In order to have better employment inclusion, more must be done to make the application and hiring processes inclusive. We need to move beyond just meeting the requirements of the ADA in the workplace.
Specifically, in the application process, the ADA requires employers to test applicants in ways that do not require the use of a disability unless the test is designed to measure that particular skill.4 Employers cannot refuse an accommodation because it entails an additional cost unless it results in undue hardship on the employer. Reasonable accommodations can take many forms and may include providing written materials in accessible formats, sign language interpreters, extra time for written tests, modifying equipment or devices, adjusting or modifying application policies and procedures, and ensuring that any in-person step of the application or hiring process is held in an accessible location.5
Despite the optimism at the ADA’s implementation, a great number of employers still appear to have stereotypical views of individuals with disabilities.6 A recent study published by the National Bureau of Economic Research found that potential employers expressed interest in hiring candidates who disclosed a disability about 26 percent less frequently than candidates who did not disclose a disability.7 The results of this study show that there is still much work to be done to eliminate stereotypical views, and to make the hiring process more inclusive.
Many improvements could make the hiring process more inclusive. Specifically, education for both employers and potential applicants is crucial. Applicants must know that they do not have to disclose their disability. If job applicants choose to disclose their disability, they should be able to easily access needed accommodations. Employers need to understand their legal obligations, have accommodations readily accessible, and identify and change hiring processes that support conscious or unconscious bias.
Employers should broaden recruitment processes to be more inclusive. One way for employers to accomplish this is to proactively engage with, and provide outreach to, the disability community. Employers can then discuss job opportunities and encourage those reluctant to apply because of their disability. This engagement will show people
with disabilities how many job opportunities are available to them.
Employers should also modify their application process in order to make it more accessible to those with disabilities. This includes allowing people to apply in a variety of ways, presenting information in clear language, allowing the application to be completed through voice input or keyboard navigation, providing subtitles for videos, and providing multiple ways to contact the employer. By taking these steps and making the application and hiring processes accessible, greater workforce inclusion is possible. Ultimately, this will help to ensure the ADA’s goal of equal employment opportunities for people with disabilities.
Peyton Circulli is a DRC-NH Legal Intern.
1 Institute on Disability. (2020). Annual Disability Statistics Compendium: 2019. Durham, NH: University of New Hampshire, Institute on Disability.
3 ADA Compliance Guide ¶ 331 Accommodations for Job Applicants (2016).
4 U.S. Equal Employment Opportunity Commission, Job Applicants and the ADA
6 Johnathan R. Mook, Study Shows Disability Discrimination Continues Despite the ADA, 27 No. 11 Va. Emp. L. Letter 5 (2015).
Peter Fleming, Vice Chair and Policy Committee Co-Chair of the NH Council for Developmental Disabilities; member of
Self Advocates Leading Together; Advocate NH; Knights of Columbus; Best Buddies International; Special Olympics athlete, coach, and board member; and founding member of the NH Chapter of Best Buddies, passed away on April 20, 2020. Peter spent much of his life representing the disability community and making friends throughout New Hampshire and the United States. Peter’s lifelong dedication to advocacy and his passion for mentoring others was a gift to our community. He leaves behind many family members, friends, teammates, and colleagues. We will miss him greatly.
Educational Settings and the ADA
When I was nine years old, my mother introduced me to the Killilea family who lived in a large, old house with Newfoundland dogs, just like our family. Mr. Killilea and my grandfather were dear, old friends. Their daughter, Karen, was the first person I’d met who used a wheelchair. The Killilea house was full of antiques and books and things that smelled old. I loved being there, and I remember noticing they had an electric chair lift. It was the first time I witnessed the relationship between user experience and design. Specifically, Karen needed a way to get to the second floor so the Killileas added an option: a moving chair.
After college, I found myself employed as a special education teacher in a small, rural elementary school in New Hampshire. I had five students in my self-contained classroom, each with a label of disability. Our room was located in what used to be the town’s one-room schoolhouse. To this day, I remember our anxiety going down the icy steps and navigating the snowy parking lot with my students – especially Max, who had cerebral palsy and was learning to walk that year. The stress and anxiety my students and I experienced was not the result of their having disabilities; it was the result of a bad design.
“Universal design” is a reminder to building designers that a variety of people are going to be using all sorts of structures, so it’s important to design them to be accessible. The Americans with Disabilities Act (ADA) addresses the issues of barrier-free design as it focuses on disability, and accommodating people with disabilities, in the physical environment.
The ADA ensures that school buildings are made accessible, but physical access alone does not guarantee learning. Are learners with disabilities also able to access the curriculum? In 1990, CAST (the Center for Applied Special Technology), a non-profit organization based in Wakefield, Massachusetts, introduced Universal Design for Learning (UDL) which takes the architectural concept of universal design and applies it to educational settings. UDL is a reminder to learning designers that it is important to create learning environments that are accessible for everyone. If UDL could talk, it might say this: “Think about barriers that learners might face in the learning environment and remove them before the learners get there. Make learning accessible from the start!”
One of the core concepts of UDL is that barriers are in the environment, not the learner. It’s a mindset shift. UDL posits that it is the responsibility of learning designers to think ahead of time about barriers in the curriculum and figure out ways to remove them. For example, an educator showing a film that offers the viewer only one way to make meaning (i.e., listen to the spoken language) poses a barrier to comprehension for some learners. To remove this barrier, closed captions need to be added to the film so that there are two ways for viewers to perceive the content. Thus, the design is made more flexible. UDL is about adding options to learning [think “chair lifts”] where they are needed. It is about proactively building flexibility into designs so that all learners can access all learning. And the flexible options we add (e.g., closed captions, graphic organizers, text-to-voice software) are offered to everyone. After all, I suspect other members of the Killilea family used that chair lift sometimes, too.
To Learn More about Universal Design for Learning, visit the CAST web page: cast.org
To Learn More about accessibility in design, visit the National Accessible Educational Materials (AEM) Center: aem.cast.org
Susan Shapiro is an Implementation Specialist for CAST.
The Council is dedicated to dignity, full rights of citizenship, cultural diversity, equal opportunity, and full participation for all NH citizens with developmental disabilities.
“All people have a right to assembly, and a right to support the causes they care about.
As a disabled person, it is important for me to support disability-related causes, but also to support equally important calls for liberation such as the Black Lives Matter movement. We are stronger when we lift each other up. All activism must
be accessible to ensure that all perspectives are being heard.”
— Juliana Good, Accessible Black Lives Matter event
organizer and advocate for people with disabilities
The NH Council on Developmental Disabilities believes that the opportunity to participate in community engagement and activism should be available to everyone. The DD Council is proud to have provided funding for American Sign Language interpreters for a recent Accessible Black Lives Matter demonstration that took place in downtown Portsmouth, NH on Friday, June 26, 2020. We would like to thank Juliana Good and Deborah Opramolla for organizing the event in support of the Black Lives Matter movement, and for making full participation a reality for people with disabilities.
DRC-NH is dedicated to eliminating barriers for people with disabilities across the state. Contact us to schedule a free consultation on a disability discrimination issue with an experienced attorney.
Know Your Rights: Issue Area Spotlights
Special Education and COVID-19
Children with disabilities are among the most vulnerable students in the COVID-19 public health crisis. As students with disabilities return to school after missing significant instructional time and related services in the spring and summer, schools must develop plans that include in-person, hybrid, and remote instructional models to meet their needs. Schools must comply with the federal Individuals with Disabilities Education Act (IDEA) and state R.S.A. 186-C – the civil rights laws which require them to offer a free appropriate public education in the least restrictive environment to every child with a disability.
Children with disabilities are entitled to Individualized Education Programs (IEPs) that are designed to meet their unique needs. Governor Sununu’s Emergency Order #48 and other guidance recognize that one-size-fits-all solutions are not appropriate for students with disabilities and calls schools to act accordingly. If you are not able to get the services that your child needs, you can call or email us for assistance.
Accessible Voting During COVID-19
People with disabilities have the right to vote privately, independently, and safely, whether they vote in personon Election Day or via absentee ballot. With COVID-19 concerns, this is even more important. In July 2020, DRC-NH and Brown, Goldstein & Levy filed a lawsuit on behalf of National Federation of the Blind, National Federation of the Blind New Hampshire, Granite State Independent Living, and several individuals seeking the implementation of an accessible system for electronic delivery and marking of absentee ballots by voters who are blind or who have other physical disabilities, and an accessible process for voters to register to vote and request an absentee ballot. We are committed to protecting the voting rights of people with disabilities. Call or email us if you encounter any voting barriers as you register and/or vote, and visit drcnh.org for the most up-to-date information on the lawsuit.
Abuse and Neglect · Access and Accomodation · Children’s Issues and Special Education · Employment · Housing · Medicaid and Healthcare · Mental Health · Traumatic Brain Injury · Voting
(603)228-0432 · drcnh.org
DRC-NH, in collaboration with the UNH Institute on Disability and the New Hampshire Council on Developmental Disabilities, distribute a quarterly RAP sheet to educate community members and policy makers about the latest research, policy, practice, and advocacy issues affecting individuals with disabilities and their families.