Disabled Act: More Loophole Than Law

Except for declarations of war, rarely has such an outpouring of support been seen for a piece of legislation as for the Americans With Disabilities Act, which passed the Senate last week and was sent to the House. The bill has been called “historic” and “the Bill of Rights for disabled people.” The final Senate version had more than 60 co-sponsors. In some odd couplings, Sens. Ted Kennedy and Orrin Hatch supported the bill, as did the Los Angeles Times and the Herald Examiner.

Most of this support, including that of the Bush Administration, came only after assurances that the costs and inconveniences to business and government would be small to none. Everyone wanted to seem kind to cripples, cost-free. I couldn’t help thinking of the paraplegic’s question to his hostess in the film “Coming Home”: “This isn’t have-a-gimp-over-for-dinner night, is it?”

So, is the Americans With Disabilities Act a meaningful civil-rights law? Or is it a worthless paper sop designed to confuse and silence a segment of an emerging permanent underclass? In its present state it appears to be more the latter than the former.

True, there are many rights that appear to be granted under the bill involving physical access, communication use and employment rights in the private sector. The loopholes, however, are large enough to drive a fleet of Mack trucks through.

The bill’s key phrase, “undue hardship,” is its undoing. “Undue hardship” means any “action requiring significant difficulty or expense “ to conform with the measure’s requirements (italics mine). The “factors to be considered include (i) the overall size of the business . . . with respect to the number of employees, number and type of facilities, and the size of the budget; (ii) the type of operation . . . including the composition and structure of the work force, and (iii) the nature and cost of the accommodation needed under the Act.” Practically anything can be considered “undue hardship” under this law, including factors not yet imagined. Similar cop-out phrases are “easily accomplishable” and “undue financial burden.” Only “key” rapid transit and light-rail stations need be wheelchair-accessible, and dispensations of up to 20 years may be granted.

This so-called bill of rights reads more like an appliance warranty, in which their costs are much more important than our rights.

There is an even more profound defect of omission in this act. How does a massively oppressed and disorganized group turn meaningless legal platitudes into material progress? How does this group get organized to exercise power with practically no resources? The short answer is that they don’t get organized, they don’t get power, and they don’t turn platitudes into progress.

A solution to this conundrum may lie in the Great Depression of the 1930s. It is quite appropriate to look there, since disabled people have never left their own Great Depression, and are rapidly sinking deeper. Statistics issued last month by the Census Bureau show that unemployment among men with disabilities reached a decade high of 76.6%, up from 70.2% in 1981. For disabled women, unemployment was much higher at 86.9%, though it had improved a tiny 1.7 percentage points from 1981.

The disabled need their own Wagner Act. In the 1930s, Congress passed this pioneering labor relations act that became the key to the rise of labor unions and a cornerstone for the New Deal programs of economic and social security. The most important right that the Wagner Act granted was the right of unions to enter private property for the purpose of organizing workers without fear of violence, interference, arrest or prosecution for trespassing.

Unlike the worker beneficiaries of the Wagner Act, most disabled people cannot be organized at their work place. They do not have a job. However, disabled people are usually registered with government agencies and government-funded agencies that supposedly serve them. Bona fide disability rights organizations must be allowed to reach and organize these clients.

These agencies must stop using the defense of “confidentiality” to keep their clients from being represented. Mailing lists must be made available and on-site meetings facilitated. Since these clients are desperately poor and have no employment, reasonable “dues” should be provided by the agencies for each client represented.

With strong, legally protected independent organizations of, by and for us disabled people, poverty and wasted lives would diminish. Taxpayers would no longer be paying for agencies promoting permanent dependency. We disabled ourselves will see to that.

Even without the equivalent of a Wagner Act, not to worry. The Americans With Disabilities Act will probably be nearly as effective as the Civil Rights Act. And we all know how well the intended beneficiaries of the Civil Rights Act are doing today, don’t we? Come to think of it, maybe they, too, could use a Wagner Act.