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Monday, January 5, 2009

Slandering the ADA

In the last month two articles have been published about the ADA that sent my blood pressure through the roof. The first was published by Time on December 29, 2008 entitled ""Lawsuits by the Disabled: Abuse of the System" and the second in the Los Angeles Times today January 5, 2009 entitled "Disabled Man's Crusade a Bane to Business Owners". The articles in question skewer disabled men that have filed multiple, as in hundreds, of ADA complaints. One of the men singled out by Time, Jarek Molski, is characterized as a "hit and run plaintiff", a "serial claimant", and an "opportunist". The victims of these so called "frivolous" ADA law suits are the most vulnerable in a weak economy: small businesses. The large number of ADA law suits filed by such "opportunists" could have a profound effect on local economies. According to David Warren Peters, CEO and general counsel of Lawyers Against Lawsuit Abuse", the state most affected is California. The "problem" Peters maintains is that California has higher standards than the Federal ASA mandates". Imagine that, higher standards for the ADA, a law that from my view is routinely and often blatantly ignored.

I do not know the men nor the law firms who represent them that are severely criticized in the Time and Los Angles Times articles. Is it possible that Mr. Molski singled out by Time is out for monetary gain? In a word, yes. Is it possible Thomas Mundy singled out in the Los Angeles Times is out for monetary gain? Again, yes, this is possible. It is also possible law firms are seeking monetary gain. These possible abuses are not as interesting to me as the way such ADA abuse is portrayed in the media. The articles in question are quite ordinary and far from unusual. Intended or not, the result is that they undermine the ADA by using language that is sure to incite the reader, especially those unfamiliar with the myriad of problems people with disabilities routinely encounter. Here are a few gems from the two articles:

Paralyzed "Thomas Mundy is trolling for barriers"

A "burgeoning army of crusaders for disabled access " exists.

"Suing for ADA noncompliance has become a cottage industry" in California.

"Disabled Californians" have "taken on the role of freelance enforcers".

"Serial litigants have cut a swath across the state, targeting family-run restaurants, boutiques, bowling alleys and wineries".

ADA lawsuits are "an old Chicago style shakedown".

"Opportunists see this [the ADA] as a great way to make $12,000 a day or more just by eating out".

People who sue under the ADA "appear to be motivated by a sincere desire for access".

"Easy money" has attracted "opportunists", and a "surprisingly large number of suits are filed by individuals with significant prior criminal history".

A plaintiff is described as "divorced and jobless except for self-assigned ADA work".

If roving bands of disabled people seeking to destroy not just the economy but small businesses exist as is implied above I have not seen them. What the articles fail to acknowledge is that 20 years after the ADA was passed significant social and architectural barriers remain common place. Based on my experience, the ADA has been successful in that it has empowered a narrow number of disabled people willing to assert their civil rights. The "problem" as I perceive it is not a lack of curb cuts, elevators, and parking spaces, a troika that is often discussed at length in newspaper articles. Instead, the real issue is twofold: first, those unfamiliar with the ADA think the law solved all the problems disabled people encounter long ago. Second, the vast majority of Americans do not equate the ADA with civil rights legislation and this is exactly what the ADA is--civil rights legislation.

When I read the Time and Los Angeles Times articles my mind went immediately conjured up of all the routine barriers I encounter. For instance how many stores have aisles 36 inches wide as is mandated by the ADA? Not many. The worst violators are toy stores, delis, restaurants, and gas station mini-marts. National brand stores such as the GAP and CVS are no better. GAP accessible changing rooms and bathrooms are routinely locked as are rear entrance doors. Good luck finding the key or manager. CVS is required to have a lower counter at the pharmacy so a person such as myself that uses a wheelchair can see a pharmacist when getting a prescription. Every CVS I have been to stocks extra merchandise displays at this counter. I could provide dozens of example but the point I am trying to get across is that I could be exactly like Thomas Mundy and Jarek Molski. I could file hundreds if not thousands of ADA violations in any given month. Such violations are the norm and when I complain nothing ever changes. The GAP I shop at always locks the accessible changing room in spite of my complaints. The local gas station where I fill up my car routinely blocks the only ramp with cases of windshield wiper fluid. And so the list can go on and on and on...

This is what I want to read someday: an article in Time or the Los Angeles Times about the ADA and what is the most violated aspect of the law. This would make interesting reading. In fact, I would love to hear from readers about what they think is the most violated part of the ADA. My vote goes to fuel pumps. At every gas station in NY a sign is posted that self service stations must provide assistance to disabled drivers when filling up. In brief, the sign states disabled patrons are supposed to honk their horn twice and an attendant will come out and pump the gas. I have been driving for 30+ years and not once has this ever worked. So bring it on, let me know about ADA violations that are the norm.


Becs said...

Does the ADA address special displays set up in stores? My grocery store sets up cardboard displays in the aisles, making it a slalom for a wheelchair user. I know wheeler folk who won't go into a store anytime near Christmas - Macy's, the GAP, Target, I don't know of a store that doesn't do this. Bookstores are notoriously bad about this, unfortunately.

william Peace said...

Becs, I am not an ADA expert so it is hard to provide a definitive answer to your question. My general understanding is that the special displays are permitted provided access can be readily achieved from a different direction. These sort of specifics questions can be answered at The ADA website is excellent.

Book stores are indeed notoriously bad with regard to access. I remember the local Border Books had a small section "disability studies" in the social science area. The disability studies section was on the top shelf, accessible to all people 6ft. tall! I found a manager and politely told him this was unacceptable. He agreed and said he would have the disability studies section placed on a lower and easily accessible shelf. Two weeks later the books are not moved. I send an email this time to complain. Two more weeks pass and still no change. Annoyed, I find the manager and am told "it is too much work to move the books we will reach them for you". I point out that the disability studies section contains a grand total of at most 15 books and the point of many authors is about equality and independence. Angry at this point I call Borders corporate office to complain. On my next trip to Borders weeks later I see that the disability studies section is gone. I find the manager who informs me the section was eliminated because the books in the section did sell well. I stated that they did not sell because they were in an inaccessible location. The irony here was lost on the manager. UGH!

yanub said...

Your Border's actually had a disability section? I have found that the local Border's removes any small specialty section if it doesn't appeal to the manager. They always tell me they can order what I want for me. That's crap. I can order what I want for me, assuming I know the book in advance. The whole purpose of going to a bookstore is to accidently find things you didn't know existed. So now, I don't go to Border's. If they want me to order my books, and that's my only option, I will. But not from them.

I agree with you on the access problems. Anyone with a disability will find a hundred violations of the ADA each week. The problem is businesses and local authorities not implementing the law.

william Peace said...

Yes, the Borders section had a section "disability studies". I too was amazed by the section. Sadly the books were not as impressive. 90% were about Helen Keller.

Long ago Borders had significant regional differences between stores. Now they are all the same, even the flagship store in Ann Arbor.

Yes access problems abound. In my estimation locally owned and run stores want to be accessible but have no idea what this means. National brand outlets know the law and theoretically meet ADA standards. For instance, the Apple store genius bar is not accessible. But the store has a pull out shelf/desk that can be used. This "reasonable accommodation" is unknown to employees. It is also located in the most heavily traversed part of the store making its use virtually impossible. I told this to the manager and stated I was a big supporter of Apple--clearly a happy customer. The reply was "Sorry there is nothing I can do". Now each time I have an issue or question I go out of my way to use this shelf/desk. In using this shelf/desk I block the entrance to the stock room for employees. This mild form of protest does not go unnoticed as the employee assisting me and others trying to get to the stock room must move every time I am passed. Six months later the shelf/desk area was moved to a different location. The move was not made to accommodate me or meet the intent of the ADA. When asked about the move I was told employees were tired of being bumped into when assisting people that used wheelchairs. My reply was simply "welcome to my world".

crippleJohn said...

Am I the only one who thinks these folks that go around suing people for a living are scum of the earth??? They and their lawyers are just trash. I am a t3-t4 paraplegic, and if I cannot get into a store, I just go somewhere else. You folks supporting these bottom feeders just disgust me.

crippleJohn said...

Am I the only one who thinks these folks that go around suing people for a living are scum of the earth??? They and their lawyers are just trash. I am a t3-t4 paraplegic, and if I cannot get into a store, I just go somewhere else. You folks supporting these bottom feeders just disgust me.

yanub said...

Wow, CrippleJohn, way to be part of the problem. I haven't brought a suit myself, but I have sent in supporting testimony for a pending suit. The whole "go somewhere else" tactic doesn't do anything but assure that lack of access will continue to be a problem. Do you even so much as make a complaining phone call to the management? In most states, there is no money to be made by plaintiffs launching suits, so if there are people filing nuisance suits, it is a limited problem that can be resolved by the states affected by a slight adjustment of their own laws.

william Peace said...

Cripple John, I do not support any person that seeks to make money from ADA lawsuits. The point I was trying to make was twofold: first, any abuse of the ADA is used to justify non compliance with the law. Second, the ADA is not valued nor is it perceived to be civil rights legislation. These are two very big problems.

As for simply going to stores that are accessible and by passing those that are not is understandable. A careful reading of the history of disability rights reveals this strategy does not work. For instance, in cities where the mass transportation system is accessible there were protests from disability rights groups. Denver and New York City are two good examples. In short, the passive approach that you advocate does not work.

crippleJohn said...

I guess I am just backwards... I am from Texas after all, a proud Texan. I am not a cry baby, or a complainer such as yanub suggests I be. From reading her profile, it seems as if she is unwilling to do anything to help herself. After my accident, I could have done nothing to help myself. I could have stayed the poor little week man that a thirty day coma had left me, but I did not. I worked hard for everything I have gotten not because I was worried of what people thought of me, but because of what was inside of me.

This law in California needs to be changed. At the very least business owners should be given a chance to get in compliance with ADA. Some of the money they have to give to these vigilantly cripples would better off spent getting their business accessible.

When I was a kid my parents owned a Flower shop and did landscaping too. My family would often try to help the people that worked for us. I learned at a young age, you cannot help those that do not help themselves. I recall this family that had moved from Bakersfield to Cameron Texas. Upon their move to Texas, they realized very quickly that Texas was not the great welfare state they had left. They did not like working; they felt they were entitled to the free money they were receiving in Bakersfield, and eventually moved back to the “great welfare state” they had left. This law goes right along with Californians since of entitlement. I believe you are not entitled to anything, wheelchair or not, people should work for everything they receive.

I get a little offended when people “assume” I get special treatment because I am in a wheelchair, but I do not blame them for thinking this way. It is something you start learning as a little kid. I see mothers all of the time thinking that they are doing the right thing by telling their young child not to stare at people in chairs. It instills, or creates this mind set to stay away, or not even look at crippled people. I have told mothers and fathers too, it is ok to look, or for children to stare, or to ask questions.

People assume that I receive a check from the government just because I am in a chair. I hate the fact that people think this. I wish people would know that I worked for everything, at times harder than others. I will admit when I turned eighteen, I did get a disability check. My parents had raised me to not accept welfare. It was hard for me to “accept” that my being in a wheelchair would force me to sometimes accept help for others. I adapted, and overcame. As soon as I could I got back into school, went to college with the help of TRC (Texas Rehab Commission, a program that is designed to help folks like me get back into the workforce) and now pay my taxes just like the rest of the United States. I worked hard to get back into the workforce. I now work hard to pay my taxes, thus eventually I will pay back the tax payers that helped me.

I have been in a chair since 1995. I do not have grab bars in the bathroom in my house, much less even a raised toilet. I was paralyzed (fell asleep driving) during my sophomore year in high school. I finally made it back to high school, after an eight month stay in the hospital, the end of my junior year. My high school was not accessible. I had to get my friends to help me over curbs to get to a few of my classes. I wished that I could do it all on my own, but I “let it go” assuming my school would have things ready for me my senior year. Of course they did not do anything, and I was facing the same barriers upon my return. So, I went to our school board, and with the simple threat of litigation I had ramps in the following week. Was I upset that I had to go that far, yes, of course I was, but here in Texas (I don’t know about CA) you cannot choose your high school.

I would be willing to bet, that in California, people cringe when someone in a wheelchair goes by them. With things like this making the news, it is what people now “know” about us. “There goes one of those people looking for something to sue over”, is what I imagine goes thru their head. Furthermore, I was appalled to see my brothers in chairs supporting these folks. This Tomas Mundy fellow goes out looking for places that are not assessable, suing over counter tops that are half an inch to high, or too low. He does not ask them to fix their problems; honestly I don’t think he cares about anything but the money. To me he just seems like the “bitter cripple”.

yanub said...

Really, Cripplejohn, you can't tell a damn thing from my profile because I purposely made it vague. I'm also a Texan, from a long line of Texans. I work full time, recently quit from a volunteer position in order to free up time, and have a lot of extended family to care for. You worry a lot about whether people think you are lazy or dependent. Maybe you suspect people of having those attitudes about you because you obviously have them about everyone else.

You apparently haven't learned that much from your experiences, having used the threat of litigation once to get changes but otherwise not even bothering to so much as make a phone call because your pride is bigger than your sense. When you can't get into a place, you can call them and explain how they have lost your business. And then follow up with a letter. If no one ever asks for change, there will be none.

As for you not having grab bars installed, that is nothing. If you don't need them, you don't need them. It doesn't make you morally better than people who do. I don't need a wheelchair but you don't see me bragging that I can walk and you can't. But, yeah, I do need grab bars in the bathroom because my balance is poor. Wow, think of that. You don't have the only kind of disability that exists.

No one has said that the ADA should be used to make money. But it isn't really the ADA that is the problem. It is state level laws, and certainly not the law as it is in Texas. Those states that are having trouble with frivilous litigation need to clean up their own house and not go running to the federal government to do it for them.

william Peace said...

Well I am almost afraid to comment and get between two Texans pissed off with one another. Regardless, here I go and will jump into the fray.

John, I understand all about hard work and recovering from a spinal cord injury. My father was a self made man and instilled a strong sense of independence. I know it is not easy to rearrange one's life and get back on track. Hard work is key but you must admit that for many the health care system, schools, our government, and the social stigma associated with disability make a hard transition all the more difficult if not impossible for some. For instance, myself, you and Yanub have familial support. What would our lives be like without that support? Would we be employed and paying tax?

Like you I resent stares and stupid assumptions others make about disability. The only way to change this is via education and a strong disability rights platform. The ADA as flawed but still forms the infrastructure of that platform. Is the law abused by some? Yes. But this does not mean the law has no merit. California and Florida are central battle ground states because the ADA is of central importance to residents. Berkeley and more generally San Francisco are the epicenter of the disability rights movement hence much legislative initiative emerges from there. And based on my experience Berkeley is one of the most welcoming places for disabled people to live.

I think you misunderstand the ADA--what is reported in the mainstream media is more often than not wrong or hopelessly biased. I suggest you read No Pity or Mary Johnson's Make Them Go Away. These two books detail the disability rights movement and passage of the ADA. Another great resource on line is the Ragged Edge, a defunct disability rights magazine that is now a repository of stories and news reports.

One last point, I do not think Yanub is in any way a complainer nor lacking in strength. She has made many astute observations about disability when commenting on what I have written. Yanub is correct she has kept her profile vague as many wisely choose to do.

Yanub is correct the real problem is not the ADA but people's attitude about disability. I am sure all three of us have encountered enough ignorance and bigotry to last a life time. Rather than argue between one another we need to find common ground so all disabled people can be empowered, hold jobs, pay taxes, and lead a rich and fulfilling life. The strong words you have exchanged remind me of the what took place during the Civil Rights movement--people believed passionately and had strong beliefs. These beliefs revolutionized American society, something I hope will happen with regard to disability rights. Remember we are all on the same team to borrow a bad sporting analogy.

crippleJohn said...

Wow!!! You are a great speaker/ writer there Mr. Peace. I really agree with you on a lot of things. I am not fighting with Yanub, I do come across a little bluntly at times and I am now sure my own “assumptions” about Yanub were wrong and I do apologize for that. I am sure she means well.

It was just these folks like Tomas Mundy that I am really getting at. They are doing nothing for the disabled from a social aspect. I mean he makes me hate people in wheelchairs.

I am in Construction, I know the ADA pretty well as I am often reading it for the design process. I work for Texas A&M University and as such everything I do has to comply. I think all buildings that people must use should comply with ADA, without a doubt. However, I think we live in a free society, and small business owners should not be “forced” into making their buildings/ stores accessible. I know people may differ with me here, but I am just different, I guess we can agree to disagree.

I feel that if you do not want me coming into your store, it is your loss. There are plenty of other stores that do want my business.

william Peace said...

John, Thanks for the kind words. I hope yanub shares your views about my reply.

I understand why stories about ADA abuse gets you all riled up. This is exactly what the mass media wants to happen--prompt an emotional reaction and this is easily accomplished. The problem with this approach is that no one learns a damn thing because forcing people to think does not sell newspapers. This is my mission at my blog--make people think deeper about what they read.

I do not envy your work in construction in part because the only thing I can fix or instal is a toilet. The ADA was never intended to be an architectural compliance law but that is what it has been transformed into. I just shake my head in wonder when I read the ADA constructions codes. I am also stunned by how many new buildings are in theory accessible but in reality far from welcoming. Airports and libraries are two places that always present significant architectural barriers. Since this is your area of specialization why do new buildings present so many barriers for people with disabilities? For instance the new library at the university where I teach does not have electric doors and I suspect the ramp is too steep and noncompliant? Is this sort of thing a mistake, poor design, lack of knowledge, cost saving etc.?

crippleJohn said...

I am getting back to you William, first thing in the morning. I am in the middle of my explanation now... I just found out my wife was pregnant this past weekend and must take her to the doctor today for her first check-up! I don't want to get a pregnant woman made at me ;)

yanub said...

CrippleJohn, you are right that all buildings that people must use should be accessible. But there is also no reason, at this point in the ADA's history, for a small public business to be inaccessible. If we let ignorance excuse inaccessibility, then we make ignorance a desirable state to maintain for someone who prefers to be in noncompliance. This is why ignorance of the speed limit won't get you out of a traffic ticket. Similarly, it shouldn't get a business off the hook for ADA noncompliance, either.

As things are now, ADA compliance is enforced through litigation rather than through government. Unless the enforcement mechanism of the ADA is changed completely, restricting the ability of potential plaintiffs to sue effectively guts the law.

I agree with William that media stories about ADA compliance suits are slanted in such a way as to foster animosity toward the ADA itself, as well as toward people with disabilities who speak up for change. Why aren't these stories asking what better enforcement mechanisms can be implemented so that activists don't have to fight for access business by business?

yanub said...

BTW, John, congratulations to you and your wife.

crippleJohn said...

To answer your question William.

Cost saving, you hit that nail right on the head! Money, money and the bottom line… I can’t answer the questions about your state or region, but I can tell you about the things I have encountered.

First of all, schools should not have an option. I think they should be both welcoming and very assessable for all people. My father was a strong believer in education, and I too have seen what education can do for a person and how far it can take them.

Texas A&M just built a brand new, twenty three million dollar building that I my office now occupies. I was on the design committee, and offered many suggestions that were accepted in the meetings, but never made it to final construction.

I am assuming again (haven’t been too good at that lately) that you are in a wheelchair and are familiar with the “push to access” doors. You know the doors that have the little blue buttons nearby you push, and they automatically open? Well in my experiences these doors are about 80% of the time inoperable. Also, when someone is standing in the path of these doors, they will not work. When these doors are not working, they are very hard to open for me, much less the poor older ladies I see fighting them all the time. Instead of the ten to twelve pound closers that normal doors have, they become about forty pound doors. I hate these doors. In meetings I gave many examples of buildings on our campus with these doors, which were not working, and stated that the doors on the new building’s main entrance should be automatic. In the end, “due to cost” the new buildings main entrance has these types of doors. I have been in this new building almost a year now and the doors have not worked off and on thru out this year. I never really could get an answer as to how much the University saved by using these type of doors.

On another note, when I was in college, I lived in apartments. I don’t know if you have had to ever look for an accessible apartment, but here in Texas it is a difficult task. Mind you now, by accessible all I need is to fit my chair thru the doors. Most times you will find the entrance and bed rooms accessible, but in my experience the bathroom doors are only two feet wide. After a few weeks of looking, I was able to find one with doors wide enough for me. Although the doors were wide enough, there was no curb cut so I was just parking up on the curb with the driver’s side of my truck. The management threatened to two my truck, and I just moved. They did argue with me over letting me out of the lease, but I had a judge, write them a nice letter and they let me out.

My dad is the judge for Milam County here in Texas. Our courthouse was not assessable until he became judge about ten years ago.

william Peace said...

John, That is great news about your wife. I will always have vivid memories of when my wife was pregnant and her giving birth to our son. I am impressed you are going with her to the MD. I did this when my wife was pregnant and was shocked that I was the only spouse present. I hope the fact go with your wife to the appointment means times have changed.

You are correct I use a wheelchair. I have done so for 30+ years. In fact I am the same level as you. Cost savings are the root of a lot of problems in terms of wheelchair access. Put the label wheelchair access on any item and the price just seems to sky rocket. To me this is a social not an architectural problem. What we need is more people such as yourself that will advocate and push to keep important features in buildings. The example you gave about the automatic doors was perfect. Those cheap doors you describe never work!

As for locating an accessible apartment or house, that is never easy regardless of where one lives. I am not sure if this will ever be any easier. Architects seem to hate incorporating ramps into commercial, public, and private residences.

I tend to think that progress in terms of disability rights and equal access physically will come in time. But progress is ever so slow and we need to have more disabled people in positions where they can say "no, this access feature must remain". When depressed about the lack of equality I think about the struggle for civil rights women and blacks engaged in--change takes time and like you think the only way to do this is through education. we need educated and disabled lawyers, doctors, nurses, architects, professors, writers, poets, businessmen and women etc.

Xajorkith said...

Shameful. If they were really trying to "crusade" for people with disabilities it would not be about money. The threat of a financial suit with enough time to fix the issue would be a much better way of dealing with things. Give the small business a reasonable time to respond and then file charges. These criminals should be locked up for life.