Yesterday, the House of Representatives voted to put obstacles in the way of disabled people seeking freedom of access under the Americans with Disabilities Act. See these articles from The Hill and the Washington Post. I’m re-posting the article I first published on December 8, 2016 that foreshadowed this event. There I noted that Donald Trump might have a particular interest in cutting back on the ADA because of noncompliance with the ADA at a number of his properties. Once again, we turn to the Senate in the hope that more humane heads will prevail.
Note also the kind of media complicity that caused many of us deep concern during the 2016 campaign. Even now, there’s hardly any mainstream reporting on yesterday’s action in the House.
60 Minutes Trashes the Americans with Disabilities Act
On Sunday, December 4, 60 Minutes spent thirteen minutes interviewing people hostile to the Americans with Disabilities Act (ADA) and a lawyer who appears to be exploiting it. Not a single person was shown on camera explaining all the good that the ADA does. Signed into law by a Republican president in 1990, the ADA has opened up society for millions of people with limited motion, vision, hearing and other impairments who would otherwise be trapped at home or in institutions and dependent on government largess. But the 60 Minutes broadcast creates the impression that the ADA has been debased into a device for lawyers to make money at the expense of small businesses. To make a few unscrupulous lawyers the entire topic of an exposé on national television does disabled people and the country at large a grave disservice.
Every law is a calculation that the good it is intended to do will outweigh any harm it might also do. Inevitably, some outcomes will be unfortunate. The elder President Bush acknowledged this balancing act as he signed the legislation: “I know there may have been concerns that the ADA may be too vague or too costly, or may lead endlessly to litigation.”
Indeed, the ADA has created problems. 60 Minutes focused on possibly frivolous lawsuits. A related concern is that the ADA adds to the number and cost of regulations with which businesses must comply. Having befriended small business owners over the years, I’ve been vicariously frustrated by needlessly meddlesome requirements they face, some of which are imposed by the ADA. The ADA, as interpreted and enhanced at the local level, can even interfere with homeowners. In New York City, for example, homeowners may not add a bathroom during renovation unless it is wheelchair-accessible, a requirement impossible to satisfy in a typical city apartment.
Such annoyances should be addressed to the extent possible. But they shouldn’t be used to attack the whole law. An analogy to traffic signs comes to mind. Drivers need traffic signs to alert them when the desired turnoff is coming up or to warn them of possible hazards. Sometimes the signs can be confusing. Sometimes a speed limit seems pointlessly low. Such flaws do not negate the need for traffic signs; just for correction.
Or take Medicare, a program that Americans overwhelmingly endorse, regardless of their opinions about the involvement of government in our lives. Those who oppose Medicare on ideological grounds recognize that the arguments that usually work with their constituents won’t with Medicare. So they look for another way to attack it. Hence periodic alarmist claims of Medicare fraud. Of course, there is fraud. There will always be people who find ways to take advantage. But the solution isn’t to eviscerate a program that makes healthcare possible for millions. The answer is to find cost-effective ways to minimize fraud, even as we recognize that it will probably never be completely eliminated.
Some corporations call lawsuits the cost of doing business. Fraud is the cost of providing a social safety net. Frivolous lawsuits are the cost of ensuring all participate in society, including people with disabilities.
60 Minutes turned the ADA on its head, making it out to be its flaws and not a vehicle for the independence of millions of Americans. Publicizing the frivolous lawsuits would have been a useful public service had it been done in the context of a report on all the good the ADA has done. Indeed, eighteen months ago, 60 Minutes filmed a segment showing the ADA’s triumphs, but never aired it. That decision was doubly frustrating because the lawyers they interviewed for that planned segment are exemplars of the profession.
The question arises whether 60 Minutes and CBS are adjusting their programming to placate the incoming administration. Trump properties have been sued numerous times for ADA violations. Donald Trump’s new, loudly-trumpeted hotel in Washington, D.C. is the subject of a complaint filed this past September 29 with the Department of Justice over the lack of ADA-compliant public bathrooms and the unavailability of accessible rooms in the cheapest category. Now Trump is about to take charge of the Justice Department, as he also will the General Services Administration, which claims the hotel owes taxes. He has suggested that by the time he is sworn in as president, he will pass control of his properties to his children, but keeping them in the family won’t overcome his manifest conflicts of interest. Will he refrain from interfering with the Justice Department and GSA when his interests are at stake?
We already have reason to worry that Trump may be prepared to eviscerate the ADA and other essential social programs. Now we have cause to worry that mainstream media will abet him.