The ADA and Regulatory Overreach

They are little things to the ambulatory.  We open doors and walk into restaurants with the greatest of ease.  We walk literally for miles in theme parks such as Disney World or Six Flags.  Navigating city streets as pedestrians on concrete sidewalks is done with thoughtless effort.  For the disabled, not only are these motions not taken for granted, but they can present monumental barriers to ordinary life.  It was these types of things and more that inspired the passage of the Americans with Disabilities Act (ADA) of 1990.  Passed overwhelmingly by Congress and signed into law by President George H.W. Bush, this act represents the single most sweeping legislation ever enacted on behalf of the disabled citizens of the country.  It was controversial at the onset -- and controversy revisits it today.

An article offered by Russ Bynum at CNSnews.com detailed the difficulties and possible monetary losses hotel owners and municipalities with public pool facilities are facing as a deadline looms for compliance with a provision of the ADA legislation.  May 21, a revised date, is the new deadline for public and private entities to install wheelchair lifts for all swimming pools with public access.  As the report indicates, "[i]t's a massive and expensive undertaking.  The Association of Pool and Spa Professionals says its research shows that between 235,000 and 310,000 pools require the upgrade.  Manufacturers estimate the lifts run $3,500 to $6,500, and installation can double those costs. Altogether, owners could face combined costs exceeding $1 billion."  These individual device costs, however, pale in comparison to the fines the Department of Justice is prepared to levy on those who are noncompliant.  Fifty-five-thousand-dollar first-time offense fines and double that amount for future violations are threatened by the DoJ.

As with most well-meaning legislation, the "Law of Unintended Consequences" is a powerful yet unseen player in the application of those laws.  Since 1990, billions of dollars have been spent to date for new buildings or to modify existing public and private facilities -- and there is no end in sight for the spending, as new accommodations seem to accrue each year.  Furthermore, the ADA is designed to incorporate the ever-growing list of modifications required of business and municipalities.  It truly is one of the purest expressions of the unfunded mandate.  Definitions for Title 42 of the U.S. Code, Chapter 126, Subchapter III, covering definitions for enforcement of this act, are provided by Cornell Law's Legal Information Institute.  Here, we see numerous and specified items that fall under the aegis of the ADA, although nowhere do we get a sense of entirety.  The list is open-ended.

What we ask ourselves as a nation today is this: "When are we satisfied that all reasonable measures to accommodate the disabled have been made?"  The question strikes at the very duality of a compassionate society that seeks to protect the vulnerable versus one that recoils at the imposition of law -- especially unfunded mandates -- that coerce compliance from business owners with the threat of financial penalty.  By positing this duality, it is not implied that these considerations are necessarily mutually exclusive.  For unless we are jaded beyond redemption, it may be safe to assume that the rational business owner will create a climate of accommodation at his enterprise that will promote access for the greatest number of people.  He will employ those modifications to his business that facilitate the best conditions for achieving maximum profits.  In a time of aging American demographics, and an increase in the numbers of less-than-ambulatory persons as consumers, the prudent businessman or businesswoman will "make things right."  Again, this is not wide-eyed altruism -- it is principled self-interest.

But for the business owner, there is a distinct catch-22 dynamic happening with this issue.  Writing for the human resource website Staffing Talk, Loren Adams states in reference to the fulfillment of 2008 changes to the ADA:

You may not notice this at first, as the definition of a "disability" in the Act has not changed. The Act still defines a disability as: (A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.

What has changed is that a much greater number of people can now be regarded as having a disability, e.g. an impairment that "substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population." Under the new regulations, the definition of "life activity" is interpreted much more broadly; the U.S. Supreme Court used to maintain that a life activity must be of "central importance to most people's daily lives." Now, there is no clear standard (emphasis added). The impairment doesn't have to prevent a person from performing a life activity - or even prevent the person from being successful at the life activity.

With this broad-based interpretation of the ADA, combined with increasing specified compliance demands upon businesses of all types, the good intentions of the original legislation become engulfed in heavy-handed enforcement and results that are counterproductive.  Corporate managers now must make sweeping changes in hiring practices that threaten to penalize the vast majority of workers and profits in an effort to accommodate the potentiality of an employee or of employees who may or may not possess a genuine disability.  Hotels and public recreational facilities, facing the untenable choices of unaffordable capital improvements or heavy DoJ fines, now threaten to dispense with amenities such as swimming pools altogether.  Liability insurance premiums alone pose a serious disincentive for the hospitality industry to provide such facilities.  The threat of ADA-inspired lawsuits and fines increases the burden to where a discontinuation of such features is now considered a viable option.  When this happens, wheelchair lifts for pools become a moot issue.

It is not a little thing, either, that these onerous ADA requirements are federally imposed.  Regardless of the efficacy and moral implications of the Act, we should question the powerful pervasiveness of the federal government in these matters.  While proponents of federal regulatory power will hide behind the Constitution's Article I, Section 8, the so-called "commerce clause," there must come a time when the individual states reassert more control over these impositions.  The States are closer to the People in terms of accountability and propriety in matters of commercial regulation.  I would even advocate a further reduction of governmental oversight, down to the county and city level, in such matters.  A more electorally accountable legislative and executive body in these cases would be more responsive to the needs of both the disabled and the business owner.  Furthermore, the devolution of power away from the central government and to the states and the people is always a good thing.

They are little things to the ambulatory.  We open doors and walk into restaurants with the greatest of ease.  We walk literally for miles in theme parks such as Disney World or Six Flags.  Navigating city streets as pedestrians on concrete sidewalks is done with thoughtless effort.  For the disabled, not only are these motions not taken for granted, but they can present monumental barriers to ordinary life.  It was these types of things and more that inspired the passage of the Americans with Disabilities Act (ADA) of 1990.  Passed overwhelmingly by Congress and signed into law by President George H.W. Bush, this act represents the single most sweeping legislation ever enacted on behalf of the disabled citizens of the country.  It was controversial at the onset -- and controversy revisits it today.

An article offered by Russ Bynum at CNSnews.com detailed the difficulties and possible monetary losses hotel owners and municipalities with public pool facilities are facing as a deadline looms for compliance with a provision of the ADA legislation.  May 21, a revised date, is the new deadline for public and private entities to install wheelchair lifts for all swimming pools with public access.  As the report indicates, "[i]t's a massive and expensive undertaking.  The Association of Pool and Spa Professionals says its research shows that between 235,000 and 310,000 pools require the upgrade.  Manufacturers estimate the lifts run $3,500 to $6,500, and installation can double those costs. Altogether, owners could face combined costs exceeding $1 billion."  These individual device costs, however, pale in comparison to the fines the Department of Justice is prepared to levy on those who are noncompliant.  Fifty-five-thousand-dollar first-time offense fines and double that amount for future violations are threatened by the DoJ.

As with most well-meaning legislation, the "Law of Unintended Consequences" is a powerful yet unseen player in the application of those laws.  Since 1990, billions of dollars have been spent to date for new buildings or to modify existing public and private facilities -- and there is no end in sight for the spending, as new accommodations seem to accrue each year.  Furthermore, the ADA is designed to incorporate the ever-growing list of modifications required of business and municipalities.  It truly is one of the purest expressions of the unfunded mandate.  Definitions for Title 42 of the U.S. Code, Chapter 126, Subchapter III, covering definitions for enforcement of this act, are provided by Cornell Law's Legal Information Institute.  Here, we see numerous and specified items that fall under the aegis of the ADA, although nowhere do we get a sense of entirety.  The list is open-ended.

What we ask ourselves as a nation today is this: "When are we satisfied that all reasonable measures to accommodate the disabled have been made?"  The question strikes at the very duality of a compassionate society that seeks to protect the vulnerable versus one that recoils at the imposition of law -- especially unfunded mandates -- that coerce compliance from business owners with the threat of financial penalty.  By positing this duality, it is not implied that these considerations are necessarily mutually exclusive.  For unless we are jaded beyond redemption, it may be safe to assume that the rational business owner will create a climate of accommodation at his enterprise that will promote access for the greatest number of people.  He will employ those modifications to his business that facilitate the best conditions for achieving maximum profits.  In a time of aging American demographics, and an increase in the numbers of less-than-ambulatory persons as consumers, the prudent businessman or businesswoman will "make things right."  Again, this is not wide-eyed altruism -- it is principled self-interest.

But for the business owner, there is a distinct catch-22 dynamic happening with this issue.  Writing for the human resource website Staffing Talk, Loren Adams states in reference to the fulfillment of 2008 changes to the ADA:

You may not notice this at first, as the definition of a "disability" in the Act has not changed. The Act still defines a disability as: (A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.

What has changed is that a much greater number of people can now be regarded as having a disability, e.g. an impairment that "substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population." Under the new regulations, the definition of "life activity" is interpreted much more broadly; the U.S. Supreme Court used to maintain that a life activity must be of "central importance to most people's daily lives." Now, there is no clear standard (emphasis added). The impairment doesn't have to prevent a person from performing a life activity - or even prevent the person from being successful at the life activity.

With this broad-based interpretation of the ADA, combined with increasing specified compliance demands upon businesses of all types, the good intentions of the original legislation become engulfed in heavy-handed enforcement and results that are counterproductive.  Corporate managers now must make sweeping changes in hiring practices that threaten to penalize the vast majority of workers and profits in an effort to accommodate the potentiality of an employee or of employees who may or may not possess a genuine disability.  Hotels and public recreational facilities, facing the untenable choices of unaffordable capital improvements or heavy DoJ fines, now threaten to dispense with amenities such as swimming pools altogether.  Liability insurance premiums alone pose a serious disincentive for the hospitality industry to provide such facilities.  The threat of ADA-inspired lawsuits and fines increases the burden to where a discontinuation of such features is now considered a viable option.  When this happens, wheelchair lifts for pools become a moot issue.

It is not a little thing, either, that these onerous ADA requirements are federally imposed.  Regardless of the efficacy and moral implications of the Act, we should question the powerful pervasiveness of the federal government in these matters.  While proponents of federal regulatory power will hide behind the Constitution's Article I, Section 8, the so-called "commerce clause," there must come a time when the individual states reassert more control over these impositions.  The States are closer to the People in terms of accountability and propriety in matters of commercial regulation.  I would even advocate a further reduction of governmental oversight, down to the county and city level, in such matters.  A more electorally accountable legislative and executive body in these cases would be more responsive to the needs of both the disabled and the business owner.  Furthermore, the devolution of power away from the central government and to the states and the people is always a good thing.

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