Melissa Harris-Perry: The Americans with Disabilities Act turned 33 this year.
President George H.W. Bush: This historic act is the world's first comprehensive declaration of equality for people with disabilities, the first.
Melissa Harris-Perry: The ADA prohibits discrimination and mandates reasonable accommodations in places that serve the public. Violations of the ADA can be met with fines and lawsuits under both federal and state law. Yet, in the ADA's short lifetime, many have sought to undermine and weaken its enforcement, most recently in Kansas. Kansas State senators approved a bill last week allowing businesses to countersue folks who sue them for violating the ADA.
The bill is now moving on The House in Kansas. The US Supreme Court recently agreed to hear a case that could narrow who is allowed to sue over ADA violations. To help us understand the potential effect of these policy moves, I sat down with Rebecca Cokley, Program Officer for US Disability Rights at the Ford Foundation.
Rebecca Cokley: What we're seeing in Kansas is very similar to what we tend to see with federal legislation. We're also seeing it with the US Supreme Court right now, which is this pushback on what they frame as fraudulent lawsuits from people with disabilities. There's this idea that people with disabilities have nothing better to do with our days than to walk into random businesses and cite them for ADA violations. I think there's a couple of important things here. The first is that there's this assumption that people with disabilities get rich off of these lawsuits.
Where the reality is there are only a handful of states where you can collect monetary damages. The only remedy that you can largely seek under the ADA federally is for remediation to the lack of access.
Melissa Harris-Perry: Talk to me through that a little bit more because I do think that many folks probably imagine that ADA is more aggressively enforced, or the rules for compliance are stronger.
Rebecca Cokley: If you go to a place and it's inaccessible and you file a complaint, what ends up happening is there's a lengthy process. If you're successful, then the business has to put in a ramp, has to supply information, in this case, information on their website around what accessibility features the restaurant or the venue has. Let's say in this case, you wanted to throw a big dinner at this restaurant and you made the reservation assuming they were accessible, and then you filed a complaint and you had to cancel the dinner. You couldn't sue and get your money back from the event that you couldn't host.
All you could do is get the ramp put in or get the accessibility feature modified. There is really this idea that what people with disabilities are asking for is extra, when the reality is what we're asking for is a right to equal access. This legislation would give businesses additional time to correct any problem, to have information on a website, and is really focused on this idea that they have, which is that people with disabilities are filing fraudulent lawsuits. We're seeing this also with the case that SCOTUS is going to take up in Laufer later this year. The concern from the businesses side is that they feel like they're being inundated with fraudulent lawsuits because they come from a very small group of attorneys.
The reality is these are also the folks that really push back against federal or high level overreach. Their response is high level overreach because if state bar associations are concerned about this, there are remedies that they can use to restrict the ability of lawyers to file suits like this but they're not. Instead what we're seeing is essentially them throwing the baby out with the bath water and saying, "We're going to make it harder for people to file ADA complaints altogether," versus punishing a very small number of bad actors.
Melissa Harris-Perry: All right. You mentioned a moment ago the SCOTUS case. Talk to me about this case. It's Acheson Hotels vs. Laufer, and it's around exactly this issue of the ability to sue around ADA violations.
Rebecca Cokley: Absolutely. This case is coming from the First Circuit. There's an attorney who they're claiming has filed hundreds of lawsuits in this case against hotels across the country, claiming their websites are not in compliance. They're not putting accessibility information on their website, which is the required by law under the ADA. What they're saying is they're framing this as what they call tester cases so that these are people who are testing the accessibility of locations and that they may not have any intention to actually stay at the hotel that they're suing.
They want to remove the ability for these tester cases for people to be able to file a complaint if they're not actually spending money at the business. At the end of the day, we're talking about-- according to Nielsen, people with disabilities have $1.9 trillion in spending capital. It's a case where businesses are suing us to keep us from actually trying to spend money there, which sounds a little weird, a little anti-capitalist in a very strange way. It defeats the purpose of having a business. It's actually saying, "We don't want your money. Don't come in here."
This will have massive ramifications. I think about all the places that my parents couldn't go before the ADA. My dad used a wheelchair and I remember having to carry his ballot into the polling place because at the time he voted at a church and churches are the only carve-out in the ADA. I remember having to take my parents' deposits into the bank because the bank was inaccessible and thinking about what it means to say, "If you're not actively doing business at this place, you don't have a right to sue." You don't have the right to even aspire to doing business at these places.
It is essentially enforcing segregation by a lack of accessibility. Where you really have to start is these businesses have had 32 years to get with the law. 32 years of taking their time-- coming up on 33 at this point to fall into place, to actually put a sentence on their website that says, "This restaurant, this hotel is wheelchair accessible."
Melissa Harris-Perry: The idea that testing would itself-- that someone coming in as a tester would not have standing, would also just gut, for example, how awful lot of fair housing, fair employment, affirmative action. Testers are a core strategy across civil rights efforts.
Rebecca Cokley: Absolutely. That is a significant fear we have. If testers fall here, where does it go next? Given what SCOTUS's tendency has been as they've been very clear, laying out the path towards a rollback of fundamental civil rights, this isn't going to stop with the ADA.
Melissa Harris-Perry: What might the future of disability rights look like? That's next on The Takeaway.
Melissa Harris-Perry: It's The Takeaway. I'm Melissa Harris-Perry, and I'm still with Rebecca Cokley, Program Officer for US Disability Rights at the Ford Foundation. Rebecca and other disability advocates around the country have been watching a Supreme Court case set to be decided this term. In the case of HHC vs. Talevski, the justices are questioning if individuals have a right to sue in federal court to protect their rights within programs that are jointly state and federally administered like SNAP, CHIP, and Medicaid. Over 11 million disabled people in the US are enrolled in Medicaid, and Rebecca says this case puts all of them at risk.
Rebecca Cokley: Mr. Talevski's family filed a lawsuit against their local Marion County, Indiana Health and Hospital Corporation that operates nursing homes, alleging that the facility he was at used psychotropic drugs to chemically restrain him, involuntarily transferred them, and then attempted to discharge them to a dementia facility without notifying their family. This is, even at the beginning, subjecting people to psychotropic drugs to keep them docile without permission or consent, that is such a violation of every human rights standard out there.
The family filed a lawsuit. The question is, do individuals have the right to sue in federal court to protect rights under the spending clause, which includes Medicaid, SCHIP, SNAP, et cetera? Assuming that they do have enforceable rights, are those rights guaranteed under the Federal Nursing Home Reform Act? Nursing homes are not getting the level of attention that they really need to in terms of some really negative and scary things happening.
They were one of the first areas of healthcare that were deregulated under the previous administration, particularly around infection control standards, which is also why we saw the pandemic blow up the way that it did in Seattle, in New York at nursing home facilities because of significant deregulation. This is just another blow to standards of care and expectations of the level of care that our loved ones should be receiving in these sorts of spaces.
Melissa Harris-Perry: You have a sense of how the justices are leaning on either of these two SCOTUS cases?
Rebecca Cokley: As it relates to Laufer, which is the ADA case, I am concerned. We saw a positive outcome in the recent case around a student who was deaf accessing accommodations or being denied accommodations in school for 15-plus years. I am very worried about the ADA case. I could see, given how pro-business SCOTUS tends to be, it leaning in the other direction.
As it relates to Talevski, I can't help but think about if this case goes in a way that is negative for the disability community, what it means in terms of rampant neglect and abuse that people with disabilities will face, all people with disabilities, but especially people with disabilities who don't have people, friends, loved ones, actively advocating for them. What does it mean to be able to allow a nursing home to neglect you, to drug you instead of provide the level of care and the type of care that your doctors and your family request? People are going to die.
Melissa Harris-Perry: We just talked with a physician-researcher about long COVID and some of its debilitating effects. How is long COVID currently understood within the context of the ADA?
Rebecca Cokley: I had the pleasure of being at the White House on July 26th a couple of years ago when President Biden declared that long COVID did count as a disability. In terms of numbers, we roughly estimated at least 20 million newly disabled people as a result of long COVID. Part of the why I said we have to estimate this is because we're still continuing to watch long COVID evolve and shift and change how it manifests, how it affects people. I think we'll be seeing that for years to come, but I think one of the big challenges that we're seeing is health insurance companies do not want doctors diagnosing people with long COVID.
Doctors themselves are still very unsure as to what long COVID looks like so we actually are watching them hesitate before providing people with a diagnosis, and that has huge impact. Without documentation, people often can't get the kinds of accommodations they need in the workplace or to school place. Whether it be continuing remote learning, the ability to telework, different lighting, different office setup, those sorts of things that are natural accommodations under the ADA, are that much harder to access for people with long COVID because they're finding themselves in a no man's land of being able to get documentation that they need to thrive and live.
Melissa Harris-Perry: This has been a bit of an alarming conversation. Give me a sense of what the future possibilities are, not just these real possibilities of rolling back rights of dismantling some of the access work, but also I want to hear about the resistance work, about the organizing work, about the ways that disabled folks are holding the line and attempting to even advance the question of rights and access.
Rebecca Cokley: It is easy to lose hope in moments like this, but I like to say that I have the best job for finding it. Being able to sit and resource a community that has never been resourced by philanthropy. I often say that if I can get the disability rights community along with our partners in philanthropy, if we can get the community to its 1970s comparable to other social justice movements, by the time that I time out at Ford, it'll be a win.
We're funding groups like MEAction, which is supporting people with Myalgic Encephalomyelitis, which used to be called chronic fatigue syndrome. The overlap with that community and long COVID, it's not really a Venn diagram as much as it's a circle. Helping support the advocacy that they're doing around the right to access healthcare, the right to access employment, the right to access accommodations, is really exciting.
I'm in the Bay Area right now doing site visits with grantees and got to meet with the folks over at the Disability Rights and Education Defense Fund, which is the disabilities community's version of the NAACP LDF or MALDEF. They're really the front lines of civil rights attorneys that are fighting right now a litany of cases as it relates to the civil rights of disabled parents. Most folks don't realize in over 20 states, you can lose custody of your child solely on the basis of a disability diagnosis, so they're holding the line on that work.
We have our phenomenal colleagues at Crushing Colonialism that are doing work specifically supporting indigenous disabled folks along the lines of justice issues and equality issues and communications and storytelling. There is this thinking that disability rights are special, that they're privileges, that they're rights plus. The reality is we're not asking for anything extra nor have we ever. All we want is equity.
Melissa Harris-Perry: Rebecca Cokley is program officer for US Disability Rights at the Ford Foundation. Rebecca, as always, thank you for joining us on The Takeaway.
Rebecca Cokley: Thank you so much for having me, Melissa.
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