Episode 4: ‘The Significance of the ADA’

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18 min read

Episode 4: ‘The Significance of the ADA’

Joining us for Episode 4 are none other than lifelong advocate for people with disabilities, Arlene Mayerson, and Timothy Elder, principal attorney at the TRE Legal Practice, which specializes in digital accessibility litigation.

Sam Proulx 00:01 | Welcome to The InclusionHub podcast. This is Sam Proulx, your host and Accessibility Evangelist at Fable, a leading accessibility testing platform powered by folks with disabilities. So glad to share this time with you. And I'm particularly excited for this episode, which examines the history of the landmark Americans with Disabilities Act [ADA], which has been a source of inspiration for people across the globe.

Sam Proulx 00:27 | So just a quick reminder before we begin, InclusionHub Podcast is brought to you by online accessibility and inclusivity resource directory, InclusionHub[dot]com, and their founding partners, Salesforce, Morey Creative Studios, Fable, and Be My Eyes, a free app connecting blind-and low-vision people with sighted volunteers. I use it and can personally attest, it's incredibly useful.

Sam Proulx 00:54 | Now, whenever we discuss the ADA, it's important that we mention the intense, multi-year battle waged in the streets, which helped force its enactment. In previous episodes, we've spoken to lifelong disability rights advocates, Judith Heumann and Jennifer Keelan-Chaffins, who have shared their experiences about that struggle. Keelan-Chaffins participated in the pivotal Capital Crawl—literally climbing its 84 steps on her hands and knees—as a child to pressure elected officials and highlight the inaccessibility of physical structures and public buildings. On this extraordinary episode, we're going to delve into this most important disability rights legislation—perhaps the most significant in existence—the ADA with the help of two brilliant guests who've been fighting the war for equality in the courtroom.

Sam Proulx 01:51 | Joining us for this incredible, important conversation is none other than one of its very architects and a lifelong advocate for people with disabilities, Arlene Mayerson. She's a civil rights lawyer and the founding director of the nonprofit Disability Rights Education and Defense Fund, which is another powerhouse when it comes to broadening the rights and lives of folks with disabilities. Also sharing incredible insights with us is Timothy Elder, principal attorney at the TRE Legal Practice, which specializes in digital accessibility litigation.

Sam Proulx 02:26 | The ADA was signed into law more than 30 years ago and remains the gold standard as far as disability rights in the United States are concerned. The law also stands as an absolute inspiration to people with disabilities all around the world. According to the U.S.-based news outlet NPR, 181 countries passed ADA-inspired disability rights laws since 2000, underscoring its enormous impact on society for millions worldwide.

Sam Proulx 03:00 | As Mayerson explains, true, meaningful accessibility is about providing all those with disabilities—physical, neurological or psychological conditions—the exact same access and inclusivity as those without. And in order to accomplish this and achieve what has remained elusive to the disability community for far too long, it is imperative that members of this community are directly involved in the creation of fully accessible sites and processes from inception. As previous guests on earlier episodes have outlined for us, the ADA has become an important tool in forcing businesses and organizations to improve accessibility and adopt more inclusive policies and processes. Yet, it is critically important that we recognize and continue to remind listeners, it is not the preeminent solution.

Forcing compliance for fear of litigation has been effective, and has instigated much-needed change. And that is, as I say, critically important, but in order to fully achieve true, meaningful accessibility for all—which at the end of the day, after all, is the ultimate goal, along with a seismic shift in exactly how the community is perceived by society—such adoption is but just one piece of the puzzle. Simply relying on the threat of litigation to rectify a systemic, institutionalized failure undergirding the entire web is the cyber equivalent of slapping a BandAid on a mortal wound. It is not the answer, as previous guests have stressed before. It also, in a way, enables such inequities to continue. So rather than fixing the problem, simply relying on litigation perpetuates and even exacerbates inaccessibility and exclusivity overall.

Sam Proulx 05:06 | As I've stated: No overlay or app will rectify a fundamentally flawed foundation. And a critical aspect of any lasting remedy is the involvement of the disability community. But in the same breath, the weight and impact of the Americans with Disabilities Act is undeniable and irrefutable. I can talk for hours about this, but I think it's important that we turn over the discussion to our guests, who will help explain how the ADA was won, its significance, and how it can be used to protect the rights of people with disabilities in the digital world. And with that, here's Mayerson.

Arlene Mayerson 05:48 | The ADA was passed in 1990 after decades of civil rights movements for minorities, ethnic minorities, and women. Along the way, there were attempts to add disability to various statutes that protected other kinds of discrimination, but it was always rejected as a possibility of bringing that legislation down. In 1973, actually, a really important thing happened, which was adding a non-discrimination provision to the Rehabilitation Act. The Rehabilitation Act was really there to help members of the military that were coming back and needed to do different jobs because of the injuries they got at war and for other people to be retrained.

So it's really a very different kind of piece of legislation, more in the category of social welfare, which is the more common and has been through centuries, the more common way of dealing with a disability. But some people on the Hill thought, well, you know, this might be a good time to stick in a non-discrimination section, and that was Section 504. It was a bit of a sleeper, it only applies to recipients of federal financial assistance, so it doesn't apply to your everyday store. It doesn't apply to the movie theater, it applies to, you know, mainly civic-type entities. And so for a long time, from the '70s, when we had civil rights protections for ethnic minorities, racial minorities, and women, there was no protection for people with disabilities.

Arlene Mayerson 07:22 | A few things happened in the '80s, which led the way towards thinking about having a comprehensive disability civil rights law. And the idea was, we already have [Section] 504, so the concepts are fairly well developed. Section 504 has its own very, very important story to tell about how long and hard people with disabilities fought to get regulations. So by this time, we already had the regulations, public entities were working with those regulations. And we want equity with other minorities and women, in terms of private businesses, private stores, hotels, etc. So a big effort started to culminate in the '80s, to start thinking about how we could introduce a more comprehensive disability civil rights law.

Arlene Mayerson 08:15 | The ADA, as it was originally written—it was written by the National Council on Disability, which at that time was Reagan-appointed, but it was Reagan-appointed people with disabilities and who had children with disabilities, which is always a very important issue in disability, it's bipartisan, it doesn't choose to only call upon households who are Democratic or vice versa. So by this time in the middle-late '80s, we have been working for decades in coalition with other civil rights groups on civil rights statutes. And by this time, we were able to convince the Leadership Conference on Civil Rights, which is the umbrella group that works for civil rights issues in Washington [DC], to make passing a comprehensive disability civil rights bill its No. 1 priority.

Audio clip from joint Congressional hearing on the ADA 09:06 | For some of us, the Americans with Disabilities Act of 1988 represents the next step in the American Civil Rights Movement. This legislation grants full rights to Americans with disabilities and moves our great nation from a respectable position of official compassion for those with impairments to a more laudable position of empowering disabled Americans.

Sam Proulx 09:26 | That clip you just heard was from a joint hearing in the United States Congress about the proposed Americans with Disabilities Act, which was first proposed in April 1988. It took two years for the law to make its way through Congress before eventually being signed by George H.W. Bush on July 26, 1990. Mayerson, who herself was a witness during the hearings, speaks about how important it was for America to hear directly from people who had historically been discriminated against simply because of their disability. The voiceless finally had a voice, and it was their own.

Arlene Mayerson 10:05 | When we have the hearings of the ADA, hearings meaning you go to Congress and you try to present, well, what is the status of people with disabilities? Why is this necessary? And the stories were just, you know, they were unbelievable. They were everything from a young woman testifying, 'I live at home, there's only one movie theater I could walk to, that I like to be independent, but the owner told me that I was disrupting customers when I asked him to open the very heavy door for me.'

Arlene Mayerson 10:33 | There [was] a couple who adopted kids with AIDS and then when they died, they had no place to bury them because they say, 'No, we don't bury kids with AIDS.' There were veterans who came back who said, 'You know, I just learned that I fought for everyone but myself. Like, I now live in an inaccessible apartment, I can't get transportation, I can't get a job.' You know, the stories themselves were legion, to say nothing of the studies that showed that the rate of unemployment among people with disabilities was astronomically high. And asked 'Why?' people with disabilities said, 'discrimination.'

Arlene Mayerson 11:10 | So this idea that they, you know, people with disabilities didn't want to work was not the answer that was given, and what was really validating about that study—this is a Lewis-Harris Poll, and the first done in this area—what was validating about that is that the employers, when they asked, you know, well, why don't you think there's more disabled people? They said, 'prejudice.' I mean, to say nothing, also of laws on the books that said, you couldn't marry if you had certain conditions, laws on the books that said you couldn't vote, various horrendous histories in that way, but also in the sense of segregation and sending people with disabilities far out into, you know, remote areas to live in congregate institutions. So the history that we revealed to the members of Congress is very, very extreme. And not in keeping with this other kind of cloth that's often given to disability rights, 'well, we like disabled people, we just think they need to be protected by staying in their own places. And, you know, the government takes care of them.' That kind of charity model was also found to be very destructive.

Sam Proulx 12:32 | As I mentioned earlier, Mayerson was one of many advocates who provided testimony to Congress about the institutionalized discrimination people with disabilities faced in all aspects of society. Her testimony was 39 pages long, and honed in on the importance of independence, especially as it related to employment.

Sam Proulx 12:54 | We urge you to read Mayerson's testimony yourself, and we'll drop it in our show notes so you can easily access it. But for now, let me take a moment to read a few of her remarks, which served as a powerful reminder of the unfair treatment people faced for generations:

Sam Proulx [quoting Arlene Mayerson’s testimony] 13:10 | "Most people are never forced to examine their assumptions or stereotypes about disabled people unless they themselves or a family member become disabled, or they have a disabled child. At that point, the falseness of the stereotypes and the injustice of the policies based on those stereotypes become all too apparent. Historically, the inferior economic and social status of disabled people was viewed as an inevitable consequence of the physical and mental limitations imposed by disability. Over the years, this assumption has been challenged by policymakers, professionals, disabled citizens, by courts, and by Congress. Gradually, disability public policy has recognized that many of the problems faced by disabled people are not inevitable, but instead are the result of discriminatory policies based on unfounded, outmoded stereotypes and perceptions, and deeply embedded prejudices toward disabled people. These discriminatory policies and practices affect disabled people in every aspect of their lives."

Sam Proulx 14:23 | Wow, powerful words. As we all know, the ADA did not go on to solve every single problem for the disability community. And we need to continue to work hard to correct so many injustices that continue today. Globally, people with disabilities are disproportionately unemployed, making the dreams of economic independence stubbornly elusive. Still, the law has made significant changes for the better, as Timothy Elder, the disability rights attorney tells InclusionHub.

Timothy Elder 14:59 | The Americans with Disabilities Act was a very much bipartisan bill meant to be this coming together of the community to recognize that disabled people have a lot to contribute to our society, both to ensure that they can contribute their talents in the employment sector, to ensure that they become productive earners and employees and business owners and that they have access to the economic marketplace, right? Disabled people want to become customers, and they want to buy goods, and we want this free flow of commerce, and we want disabled people to be able to go to restaurants and buy sporting tickets and just participate in the economy.

And that's good for everyone, right? And so that's what the Americans with Disabilities Act reflected, was this acknowledgment that disabled people do have a very large part to play in our economy, and in the workforce, and participating in government. And we don't want to maintain this sort of model of charity, where disabled people are dependent on government benefits and sent away to institutions and separated out from the rest of the mainstream culture and community. But instead, we're going to embrace this concept of inclusion and integration, and really promote a legal system that is designed to advance those goals.

Clip of Greg Hlibok's interpreter at a testimony from a 1988 ADA hearing 16:31 | My name is Greg Hlibok, I am president of the student body government at Gallaudet University. And last March, victory in getting a deaf president for Gallaudet sent a message to the world. And the focus was on what Deaf people can do, and not what they cannot do. Very often, discrimination appears on a daily basis in our lives, we face that all the time, every day. We have many experiences of being turned down for jobs, denied promotions. For example, my own Deaf brother, he had to hire and pay for an interpreter himself so he could interview for a job.

Timothy Elder 17:27 | There's a whole history of disability rights that has moved, right? I mean, a lot of it had been established under the Rehabilitation Act and then the Americans with Disabilities Act that was passed in 1990. And then all of a sudden, we had this digital revolution, right, with the internet and all these websites and commerce and all this social function transporting over into the digital space.

Clip from an AOL commercial 17:58 | [Narrator] Every day, America Online is making it easier for people to live, work, and play.
[Actor 1] Hey, Dan, ready for the game?
[Actor 2] I'm just finishing up here with my new kayaking friends.
[Actor 1] Kayaking friends on your computer?
[Actor 2] Yeah, I just got America Online.

Clip from a 2007 Apple presentation of Steve Jobs, former co-founder and CEO of Apple 18:09 | This is a day I've been looking forward to for two and a half years. (Applause) Every once in a while, a revolutionary product comes along that changes everything. A phone, and an internet communicator, an iPod. A phone? (Applause) Are you getting it? These are not three separate devices. This is one device. And we are calling it iPhone. (Applause) Today, Apple is going to reinvent the phone.

Timothy Elder 19:09 | So then the question was, well, what is this landmark civil rights law that we have under the ADA, which was drafted before the internet? How does it apply to this new development?

Arlene Mayerson 19:22 | With the advent of the internet, more and more and more and every American, every listener is very aware of the fact of how much we do online, and it's everything from our entertainment, streaming channels, Netflix, etc., to government benefits to hospital care. You don't talk to people, you go to your portal if you want to know how your test results came out, etc., etc. And so we started to see that you know, opening the door and making sure it's wide enough for a wheelchair, all the same principles have to apply to the internet because you can't have progress, you can't have the goals of the ADA realized if people with disabilities, particularly sensory disabilities, blind, low vision, d/Deaf, hard of hearing, but also some others like learning disabilities, if those millions of people are cut off from the internet. They're not having equal access, they're back to being second-class citizens.

Timothy Elder 20:29 | There was some litigation in the beginning, you know, one of the seminal cases is the target[dot]com case that established that websites are covered under the ADA. And, you know, there have since been further clarifications, and the trend of cases is always been to cover websites, that's becoming clearer and clearer as the courts have been taking these cases. The Domino's case, from the 9th Circuit, that the [U.S.] Supreme Court denied cert on sort of sets that is sort of the law of the land, at least in the 9th Circuit. So we saw this seminal case and follow up sort of progeny that the target[dot]com and the websites of places of public accommodation are to be covered and need to be accessible. We've also seen a good amount of litigation sort of spinning that off into mobile apps, various mobile applications have also been covered. And we're seeing, I think, a trend where the ADA applies to services of businesses, and more and more software, and virtual, and web content is shifting from a product model into a service model. So I see there's this convergence, where the law is focusing on the accessibility of services of businesses.

Sam Proulx 21:58 | Decades after the passage of the ADA, Mayerson continues to leave her mark on the disability rights movement. In recent years, she has been instrumental in ensuring everyone has access to online entertainment. Specifically, I'm referring to Mayerson's landmark lawsuit against the streaming giant Netflix and other similar services. For years, Netflix wasn't offering closed captioning for its content. As a result, her organization sued the U.S.-based company, which eventually led to a settlement agreement. So every time you turn on Netflix and activate captioning, it was Mayerson and her colleagues who did that, fighting for everyone's right to have access to that content. Obviously, negotiations weren't that simple. So let's listen to her account of the suit and its importance.

Arlene Mayerson 22:50 | I spent, you know, 35 years working on cases that didn't involve me, specifically. And it's just the way Netflix came about really was that I was so excited. You know, 'Oh, good, we get to watch movies at home.' And everything I go, 'Oh, I'll watch that. No captions, Oh, I’ll watch that. No captions.' I rely on captions in order to access digital media. You know, I was just kind of like, wait a minute, there's this whole new thing happening and it doesn't even comply with the TV captioning regulations, it's off on its own. I actually came up with the idea that I thought the ADA applied. I went all over, you know, as I did in general, just you know, I'm in DC, a lot, I'm around—and everyone said you can't bring that suit. And I said we have to bring that suit. It's like, the world's moving along and the law’s gonna die.

Arlene Mayerson 23:49 | We brought a suit against Netflix to say that, you know, you are a public accommodation. And that gets a little into the nitty gritty of the ADA, which is that there's five titles, actually, but three main titles are: One is employment, two is public entities, and three is what we call public accommodations, they're businesses. But they were called public accommodations in the law. And the big controversy became Netflix saying, ‘well, we're not a public accommodation.’ Because a public accommodation is something that you open the door and walk into.

And it became very interesting what a generational divide there was, because two other courts—when I say it was the first case, it wasn't the first case on the subject, it was the first case that the internet was covered. To many people and people in authority who are a little older, a place of public accommodations means a building. But to my students, because I also teach law at Berkeley Law and have for 30 some years, they have no concept of understanding that the internet, a website, is a place of public accommodation, because that's—you use it in the same way you would a place. Like, you're not going into your video store and renting a video, you're clicking a button and renting a video, you're getting the same benefit and you're getting the same product, and it's so basic in some ways.

Arlene Mayerson 25:21 | So, of course, we always give our defendants an opportunity to settle cases, and we did that with Netflix as well. And I can't say a lot about the negotiation process just because it is confidential. But let me just say, we were starting from the beginning, like, 'What do deaf people like to watch?' And it was kind of like, 'uh oh,' we got the whole concept wrong. You know, it's like, deaf people, we want to watch everything everyone watches, and there's no priority of like a particular—you know, 'Children of a Lesser God,' that was with Marlee Matlin, she played the deaf woman. It's like, yeah, it's beyond that, it's everything.

Arlene Mayerson 26:05 | You know, it was a long, long time with Netflix, they were really fighting it because, you know—we had a lot of meetings, they had their top engineers there, there was a lot of concern about how much it was going to cost and, etc. And by the way, when we're talking about captions, we're talking about closed captions, so you can turn them on or off. So if you don't want to watch them, you don't have to watch them. But if you need them to watch, you can watch them. And you know, there's a lot of concern about how much that was gonna cost.

And Netflix said they didn't have the proprietary ownership, actually, of the films, they were given to them by studios, and studios are not covered by the ADA. So it's a kind of a glitch there, but they were using them as their business. So there were a lot of legal arguments back and forth. And primarily, I think they were very concerned about that it would be cumbersome and expensive. And also that it would open the gate, just regulating the internet in terms of access. So we were able to show that it's not a singular activity that you're like, you know, you're an isolated person who happens to be watching at home. But in fact, it had a lot to do with the fabric of society and sociability in society. And that is what the ADA is about.

Sam Proulx 27:30 | After settling with Netflix, Mayerson's Disability Rights Education and Defense Fund, and its co-counsel settled with other large streaming firms, such as Apple, Amazon, Hulu, and Vudu. While she acknowledged that captions aren't always perfect. She told us that streamers understand they won't be able to compete in today's market without them. Of course, Mayerson and her colleagues wouldn't have been successful if it weren't for the ADA serving as the basis for their arguments. While you contemplate the significance of the law, and how it fits into the digital world—something we're all still trying to figure out for ourselves—we wanted to leave you with a personal anecdote from Elder about fighting for disability rights as a person with a disability himself.

Timothy Elder 28:19 | I am a blind person, and that's part of the attraction to this legal field. I firmly believe that if you're going to do professional work, having some kind of personal connection to it makes it real, and you feel emotionally connected to the work that you're doing. And you can relate to it and when it comes down to the hard work that's required, you'll give it that extra 110% because you know how much it matters, and you're passionate, and it means something to you. So for me, this has been my expression of, you know, a way to connect my status as an attorney and my interest in accessible technology. I grew up primarily as a sighted person. So I didn't consider myself blind. And I didn't go through special education and made that transition later in life. And so it's interesting to me to come at it from this new perspective and deal with some of these access issues as a person with a disability, but also with some understanding that like there was a point in time in life where I had no idea about any of this stuff.

And I didn't know blind people used computers. I didn't know that blind people could do all of the things that we do today and all of the careers that we have. We've all struggled with access to some degree, right? Like the world is not 100% accessible yet. And so I think if you talk to any blind person, they could probably indicate a few areas where there are barriers still or they're struggling to access information or integrate into society. The ADA has gone a long way to remediate that and to promote more equal access and reduce that gap.

Sam Proulx 30:19 | Well, there we have it, folks. The fight for disability rights continues, and we're blessed to have people such as Elder and Mayerson, and so many others doing the work to promote inclusivity and break down the walls of discrimination. Please be sure to visit InclusionHub[dot]com and check out the truly incredible work of its founding partners and this podcast's sponsors. We’re brought to you by cloud-based customer relationship management software provider Salesforce at Salesforce[dot]com, HubSpot Diamond Partner Agency Morey Creative Studios at MoreyCreative[dot]com, Fable, a leading digital accessibility testing platform powered by folks with disabilities, where I work as Accessibility Evangelist at MakeItFable[dot]com and Be My Eyes, a free app connecting blind-and low-vision people with sighted volunteers, which you can visit at BeMyEyes[dot]com.

Learn more about Arlene Mayerson, her incredible team, and all the extraordinary work the nonprofit Disability Rights Education and Defense Fund is doing for us all and support the cause at DREDF[dot]org. To learn more about Timothy Elder and support the critical, critical work of the TRE Legal Practice in fighting discrimination and helping ensure access for the blind and other disabled people to employment, education, government programs, public accommodations, accessible technology, and all other aspects of society, visit TRELegal[dot]com. Finally, make sure you subscribe to The InclusionHub Podcast so you don't miss future episodes. Until next time, remember: A more accessible and inclusive world is a better world.

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