THOUGHTS ON THE 23D ANNIVERSARY OF ADA – Illusions of Clueless People
August 23, 2013 § 2 Comments
A presentation from Portland, Oregon, USA (2013)
THOUGHTS ON THE 23D ANNIVERSARY OF ADA
By John Waldo
While I want to talk broadly about inclusion and community today, I will speak through the prism of my own disability, hearing loss. I do this both out of a sense of immodestly and a sense of modesty. My legal practice focuses exclusively on how state and federal disability laws impact those of us with hearing loss, for better or for worse. Immodestly, I feel well qualified to speak on that subject. Yet on the modest side, I can’t and won’t pretend to have experienced the challenges specific to other disabilities. I would hope, though, that some of what I have to say has relevance for all of us.
Just a bit about me, since I am relatively new to Portland. I have been practicing law for over 30 years. For the better part of 60 years, I have had a significant hearing loss. For the past six years, I have combined my professional background and my life experience in an effort to implement in reality the benefits and protections of federal and state disability laws, particularly across the river in Washington and south of the mountains in California, both of which have exemplary state laws that provide advocates with a few additional tools.
When Congress passed the ADA 23 years ago this week, it recognized that individuals with disabilities are frequently excluded, in one way of another, from full participation in public life. Congress addressed that reality by requiring employers, government entities and many private businesses to provide some form of “reasonable accommodation” that will enable us to participate despite our disabilities.
We know from our own experiences that the promise of ADA is not yet a universal reality. I am part of an on-line community of disability-rights lawyers from around the country, and not a day goes by when I don’t read about another hospital failing to provide an interpreter for a deaf patient, or a person in a wheelchair encountering structural barriers, or someone being ordered to leave a restaurant because of their service dog.
Yet we are seeing progress, and here I need to limit my remarks to the situation facing those of us with hearing loss. Many of our movie theaters are now providing individual devices that will enable us to read the dialogue and other aural information without disturbing the movie-going experience of other patrons. Portland Center for Performing Arts is now offering one captioned performance of each of its Broadway plays. The University of Oregon and Oregon State University are displaying the public-address announcements at their football and basketball games in written form on scoreboards visible to everyone, and the Seattle Seahawks will begin doing the same this fall.
When Congress passed the ADA, it recognized the important and fundamental reality that discrimination is seldom intended. Rather, discrimination against the disabled is most often an unintended effect of acts or omissions undertaken without considering the impact on people with disabilities. Put bluntly, the problem is not so much that people are mean, but rather, that people are clueless.
So to talk about the obstacles that are preventing the promises of the ADA from becoming a universal reality, and with apologies to Stephen Covey, I want to talk about what I will call the Seven Illusions of Highly Clueless People.
Illusion No. 1 — You are asking the impossible.
This is an argument that seemingly originated with a number of judges. They have looked at the language of the ADA to the effect that it is intended to provide “full and equal enjoyment” for people with disabilities. But, they have said, that is impossible, because blind people can never fully “enjoy” a sunset, nor can deaf people “enjoy” a symphony.
I want to just whack those judges. They are confusing perception with enjoyment. It’s quite true that I will never perceive the nuances of a musical performance to the same extent as someone with normal hearing, but I doubt anyone with normal hearing can imagine how deeply I enjoy a movie or a musical when, for the first time in 60 years, I can really understand the dialogue.
Nobody is more aware of our inherent limitations than we are. But the fact that we may never be equally able to hear, or to see, or to run doesn’t diminish the enjoyment we receive from being able to experience more than we have in the past. Our message is that even if it is not possible to achieve perfection, please do what can be done.
Illusion No. 2 — You’re not missing anything important.
This argument jumps up in a lot of different contexts and guises. When our Washington group filed a legal action in Seattle asking the movie theaters to provide caption-viewing devices, a conservative radio talk-show host interviewed me, and said, “why can’t you just wait until the captioned DVD comes out.” When deaf football fans asked the Washington Redskins to caption the public-address announcements, the team said, “you don’t need to know what the PA announcer is saying to follow a football game.”
Those arguments profoundly miss the critical point. The issue is not the event itself. The issue is inclusion. People who just want to see the football game can stay home and watch it on television – it’s warmer, dryer and the beer is a lot cheaper. People go to the game to be part of a community experience. And yes, you can wait for the DVD to see a movie, but again, what you miss is the experience of participating with friends and family.
We may have lost our hearing, our vision or our mobility. But we have not lost our need, desire and entitlement to be part of a community. It is the inclusion that is important, not just the event.
Illusion No. 3 – There is no real answer.
An argument closely related to the “it’s impossible” is what I call the “why bother” fallacy. In our case in Washington, the movie theaters argued that because there was no universal agreement on a single preferred method of display, and even that some individuals with hearing loss cannot read well enough to follow movie captions, the court should not require anything. Our argument, which the court accepted, is that the inability to do everything cannot become an excuse for doing nothing.
Now as an aside, let me say that some of this falls on those of us with disabilities. The old adage that “the perfect is the enemy of the good” applies with great force here. We have to acknowledge that our needs must be balanced against other legitimate considerations like cost and feasibility. An example drawn from my own work is that many if not most of us with hearing loss would prefer that the movies employ open captions, visible on the screen to everyone. The theaters claim that hearing patrons find open captions distracting, and reduce attendance. There is some empirical data to back that up, and the courts have generally bought that argument.
The bottom-line lesson for both sides is this – it’s not a perfect world. But it can and should be made a better world.
The close corollary to this argument is the “wait until next year” argument, in businesses sometimes argue that at some undefined time in the future, there will be better, faster and cheaper ways to provide accessibility, and we should wait until then. When the movie theaters hauled this one out in Washington as a reason why they should not be required to provide caption-viewing equipment, our response is not that “better, faster and cheaper tomorrow” was untrue, but rather, that it would never not be true. We hope that better solutions will appear, and that as they do appear, they will be adopted. But the prospect that perhaps we can do better tomorrow can’t be an excuse for not doing what we can today.
Illusion No. 4 – We know the answer.
Even with the best of intentions, some businesses and facilities think they understand that nature of disabilities, and proffer solutions based on that incomplete understanding rather than on reality. This one hits really close to home for the millions of people like me who are hard-of-hearing but are not part of the Deaf community and communicate orally rather than through sign language. We are often offered either assistive listening devices that boost volume, or are offered sign-language interpreters. Both of those accommodations help some people, and should be continued. But for those of us who have lost some portion of the audible spectrum but not others – and that is most people with significant hearing losses – our issue is not volume but clarity, and particularly our inability to distinguish among the soft and high-pitched consonant sounds that give meaning to speech. For us, the effective accommodation is captioning – putting what is said into writing.
The lesson here is not to assume, but to inquire. Some recent court decisions are really helping us out here. Essentially, the courts are beginning to recognize the reality that nobody knows more about the nature of disability and the appropriate means of accommodation than the people who suffer from it.
Illusion No. 5 – It costs too much.
Businesses often grumble about the anticipated cost of accommodating people with disabilities. In part, that may be because the costs are often over-estimated. In part, though, the problem stems from the vague language of the ADA. The law states that architectural barriers are to be removed when doing so is “readily achievable,” and state that a businesses’ obligations end when the accommodation would impose an “undue burden.” But there is virtually no firm guidance about when a financial burden crosses the line from “due” to “undue,” or when removal of an architectural barrier ceases to be “readily” achievable.
Unfortunately, the only way to resolve these disputes is to go to court. Sadly, the outcome of virtually all of the cases that have gone to court is that legal fees end up being far greater than the cost of providing the accommodation in the first place.
One notion that provides at least some guidance is that if similarly situated businesses or entities are providing the requested accommodation, then the business being approached would have to show why it cannot do likewise. So whenever a business tells us that providing captioning, for example, would be too expensive, we point to similar entities that are actually doing it. That provides a valuable source of information as well as food for thought.
Illusion No. 6 – It’s your problem, and it’s not fair to make it my problem.
Folks often think intuitively that a law like ADA shouldn’t require them to bear any costs if they haven’t done anything wrong, so we often get, “it’s not my fault that you can’t hear.” Indeed it isn’t their fault. Nor is it my fault. It is simply a reality, and remedying the problem is not something either of us can do alone.
In requiring businesses to provide accommodations for people with disabilities, ADA is not about assigning blame. Rather, it is about allocating the cost of dealing with problems that are nobody’s fault. Congress decided that the most rational and fair way of dealing with the problem of accommodating disabilities is to say that this is a cost of doing business, to be shared by all patrons rather than being placed solely on the individuals who have the misfortune of suffering from the disability.
It’s also important to note that things can change at a moment’s notice, and a person that does not need an accommodation today may do so tomorrow. Hearing loss provides a particularly interesting illustration of this, because under certain circumstances, virtually everyone is unable to understand what is being said. When we de-briefed the University of Oregon after it provided captioning for its first football season, a hard-of-hearing student said that she had been going to the games with her father since she was a girl, but had never enjoyed them as much as when she could read what was being said, and could fully participate in the group experience. The assistant athletic director then added that it got so noisy in the stadium that he found himself reading the captions as well. The moral of the story – inclusions benefit everyone.
Illusion No. 7 – Nobody wants this.
Providing accommodations is a two-way street – the accommodations must be available, and they must be utilized. I can’t speak for others, but for those of us in the hearing-loss community, we have often failed to do our part. Statistically, I can show to a considerable degree of certainty that at least eight percent of the adult population really needs written captions to understand a movie dialogue. But when the theaters do provide captions, only a tiny number of us show up to use them.
To a considerable extent, I think this will just take time. I recall that when Title IX of the Civil Rights Act was enacted requiring colleges to offer comparable athletic opportunities to women as to men, the colleges argued that far fewer women than men were actually interested in playing sports.
Factually, the colleges appeared to be correct, based on then-present reality. But it turned out that college women had been denied meaningful participation opportunities for so long that they had simply gotten used to the idea of being spectators rather than participants. As opportunities became available, interest increased proportionately.
The one place I fault some businesses – and some but not all movie theaters are a good example – the problem is lack of publicity that the accommodation is available. Indeed, there have been some settlements of accessibility complaints where the business complies but demands that the settlement remain confidential. I have to say I just don’t get this – until accessibility is so universal that it is assumed, businesses have to let people know that opportunities have changed if they expect usage to change.
Nevertheless, much of the problem lies within us. For at least some people with disabilities, including many of us with hearing loss, isolation and withdrawal have become common coping mechanisms. We need to get over that, and start actually using the accommodations that have become increasingly available.
Here is the bottom line after 23 years. The ADA is about inclusion. It is about community. Things are far from perfect, but progress is being made. Doors are opening for us. Let us so inside. And when we do, let us remember to say “thank you” to the people who stopped being clueless and made community and inclusion a reality.
John has been a CCAC member from early beginnings in December 2009. His legal expertise and energies contribute enormous informational value to our organization, as well as the two he is most associated with, Wash-CAP and OR-CAP, plus related professional and personal pursuits (www.wash-cap.com, http://www.or-cap.org/). He is a distinguished guest presenter at HLAA and ALDA conferences, among others. Keep your eyes open for his participation this October at the first joint TDI-ALDA conference in New Mexico (register on http://tdiforaccess.org/news_feature.aspx?key=News(Feature)&select=Newsfeature).
Read more about the CCAC
http://CCACaptioning.org – national and international – volunteer citizen captioning advocates – education, raising awareness, advocacy – add your voices
http://CaptionMatch.com – register to find a captioning provider you need for yourself or your company and support CCAC citizen volunteers at the same time