July 22, 2020
Topics: KC's Column
The ADA turns 30 & It is Still Relevant
Thirty years ago, I was a newly minted MAI (Member of the Appraisal Institute) working at Wells Fargo Bank as an assistant chief appraiser. One of my responsibilities was to the bank’s Real Estate Technical Services group (RETEC) on this new law called the American with Disabilities Act attempting to answer the question:
What does the ADA mean for commercial real estate lending by banks and valuation of CRE property?
Having not yet digested the 1989 FIRREA legislation (Financial Institution Recovery, Reform and Enforcement Act regulating the appraisal industry post the S&L Crisis yet fully implemented), I wondered about my career choice and how commercial real estate was going to be forever changed. While I will save my take on FIRREA legislation after its 1991 implementation for its 30-year anniversary in 2021, my take on the 1990 American with Disabilities Act (ADA) on its 30th anniversary this coming July 26th is:
While complicated and messy at first – it was a needed enhancement to the 1964 Civil Rights Act that today serves 40-plus million disabled workers (12.6% of our total workforce). It also allows for much of the remote work to occur in today’s COVID-19 pandemic.
As a parent of a special needs child, and on staff at a university that was an early pioneer for “Adaptive Athletics” due in large part to the philanthropy of University of Alabama alumni such as Michael Mouron, a debt of gratitude is truly owed to the pioneers behind the Americans with Disabilities Act of 1990 that are mostly long forgotten.
Although Senators Weicker, Harkin and Durrenberger, as well as House Representatives Coelho and Fish are credited with drafting and introducing the ADA legislation into the 100th - and later 101st Congress - in 1989 and 1990, respectively; there were two powerful figures behind the scenes that made the 1990 Act a reality. Those two figures were Patricia Wright and Justin Dart. Dart had ties to a giant in our commercial real estate industry (Charles Walgreen founder of Walgreen’s), and was himself disabled from the public health crisis of the early mid-20th Century – polio. His mother Ruth Walgreen Dart was the daughter of Walgreen’s founder Charles R. Walgreen. At age 18, Dart contracted polio before entering the University of Houston, where he later earned undergraduate degrees in history and education in 1954; however, the university refused to give him a teaching certificate because of his disability. Now fast forward more than six decades and the University of Houston is home to the Justin Dart Jr. Center for Students with Disabilities.
As the anniversary of the ADA appeared on my July 2020 calendar, three questions came to mind that are covered in this Weekly Insights:
- i) What is the genesis and history of the ADA?
- ii) What are the key provisions of the ADA that our CRE community needs to keep top-of mind in our roles as appraisers, brokers, industry associations, lenders, and property managers; and
- iii) How is ADA relevant during COVID-19?
History of ADA:
In 1992, the Disability Rights Education Defense Fund (DREDF) published a retrospective on the ADA that is a recommended reading. In this feature by Arlene Mayerson, the following stand out and connect the dots as to the significance of this now 30-year-old legislation:
- The history of the ADA did not begin on July 26, 1990, at the signing ceremony at the White House with George H.W. Bush. It did not begin in 1988 when the first ADA was introduced in Congress. The ADA story began a long time ago in cities and towns throughout the United States when people with disabilities began to challenge societal barriers that excluded them from their communities, and when parents of children with disabilities began to fight against the exclusion and segregation of their children.
- The ADA is rooted in the Civil Rights movement and would never have happened without the relationship with the Civil Rights community. Like the African-Americans who sat in at segregated lunch counters and refused to move to the back of the bus, people with disabilities sat in federal buildings, obstructed the movement of inaccessible buses, and marched through the streets to protest injustice. And like the civil rights movements before it, the disability rights movement sought justice in the courts and in the halls of Congress.
- For the first time, the exclusion and segregation of people with disabilities was viewed as discrimination. Previously, it had been assumed that the problems faced by people with disabilities, such as unemployment and lack of education, were inevitable consequences of the physical or mental limitations imposed by the disability itself. Enactment of Section 504 evidenced Congress’ recognition that the inferior social and economic status of people with disabilities was not a consequence of the disability itself, but instead was a result of societal barriers and prejudices. As with racial minorities and women, Congress recognized that legislation was necessary to eradicate discriminatory policies and practices. Section 504 was also historic because for the first time, people with disabilities were viewed as a class – a minority group.
- During much of the 1980’s, the disability community’s efforts in Washington were focused on reinstating civil rights protections which had been stripped away by negative Supreme Court decisions. The longest legislative battle was fought over the Civil Rights Restoration Act (CRRA), first introduced in 1984 and finally passed in 1988.
- In 1988, the civil rights community amended the Fair Housing Act (FHA) to improve enforcement mechanisms and for the first time, disability anti-discrimination provisions were included in a traditional civil rights statute banning race discrimination. During these years working on the CRRA and the FHA, alliances were forged within the civil rights community that became critical in the fight for passage of the ADA. Because of its commitment to disability civil rights, the Leadership Conference on Civil Rights played an important leadership role in securing passage of the ADA.
- The ADA, as we know it today, went through numerous drafts, revisions, negotiations, and amendments since the first version was introduced in 1988. Spurred by a draft bill prepared by the National Council on Disability, an independent federal agency whose members were appointed by President Reagan, Senator Weicker and Representative Coelho introduced the first version of the ADA in April 1988 in the 100th Congress.
- Passage of the ADA was a long haul. On May 9, 1989, Senators Harkin and Durrenberger and Representatives Coelho and Fish jointly introduced the new ADA in the 101st Congress. After the spectacular Senate vote of 76 to 8 on September 7, 1989, the Bill went to the House where it was considered by an unprecedented four committees and then passed.
Key Provisions of the ADA to keep in focus 30 years later:
The ADA is segregated into five “Titles.” Titles I and III have particular relevance to our CRE industry.
- Title I is known as the Employment provision: This title is designed to help people with disabilities access the same employment opportunities and benefits available to people without disabilities. Employers must provide reasonable accommodations to qualified applicants or employees. A reasonable accommodation is any modification or adjustment to a job or the work environment that will enable an applicant or employee with a disability to participate in the application process or to perform essential job functions. This portion of the law is regulated and enforced by the U.S. Equal Employment Opportunity Commission. Employers with 15 or more employees must comply with this law. The National Association of Realtors explains the relevance to Realtors as follows: “If a real estate sales office has 15 or more employees, Title I applies. Think appraisers, property managers, consultants, etc. as well as agents and brokers. If you are a NAR affiliate, such as CCIM, IREM or the Counselors of Real Estate, Title I applies to you too - provided you have 15 or more employees.
- Title II is the provision that addresses nondiscrimination on the basis of disability in state and local government services – especially regarding public transportation: it prohibits discrimination against qualified individuals with disabilities in all programs, activities, and services of public entities. It applies to all state and local governments, their departments and agencies, and any other instrumentalities or special purpose districts of state or local governments. It clarifies the requirements of section 504 of the Rehabilitation Act of 1973, as amended, for public transportation systems that receive federal financial assistance, and extends coverage to all public entities that provide public transportation, whether or not they receive federal financial assistance.
- Title III is the “Public Accommodation” provision that is the most material to our CRE industry and our commercial properties. This title prohibits private places of public accommodation from discriminating against individuals with disabilities. Examples of public accommodations include privately-owned, leased or operated facilities like hotels, restaurants, retail merchants, doctor’s offices, golf courses, private schools, day care centers, health clubs, sports stadiums, movie theaters, and so on. This title sets the minimum standards for accessibility for alterations and new construction of facilities. It also requires public accommodations to remove barriers in existing buildings where it is easy to do so without much difficulty or expense. This title directs businesses to make "reasonable modifications" to their usual ways of doing things when serving people with disabilities. It also requires that they take steps necessary to communicate effectively with customers with vision, hearing, and speech disabilities.
IREM is a great resource for topical ADA matters impacting commercial real estate property and topics like ADA application to areas such as e-commerce. One recent example is whether the website for online e-commerce is governed by Title III of the ADA. In a 2017 case against Winn Dixie by a blind person dependent on screen-reading software, the court found on behalf of the blind plaintiff that Winn-Dixie’s online website was in violation of Title III. It is a topical subject and case during COVID-19 as all is increasingly dependent on digital and virtual. Could Zoom, CRE industry association websites, or any e-commerce retailer such as Amazon, Walmart, etc. be vulnerable? Read the following summary of the 2017 Florida court ruling against Winn-Dixie with COVID-19 era e-commerce relevance and you decide:
IREM ADA Whitepapers: June 13th, 2017, marked the first time a federal court ruled that a non-accessible website violates Title III of the ADA. In a 13-page decision, Florida District Court Judge Robert Scola found in favor of the plaintiff, a blind man who uses screen reading software, because he was unable to use the Winn-Dixie (a regional grocery store) website to download coupons, order prescriptions, and find store locations. The decision stated that whether the website itself was covered by the ADA was irrelevant because downloading coupons, ordering prescriptions, and finding store locations creates a nexus between the website and the store. Since using the website could have such a meaningful impact on a shopper’s ability to take full advantage of the services offered by the store, it was therefore covered by the law.
- Titles IV & V relate to Telecommunications (IV) and Miscellaneous (retaliation, coercion and attorney’s fees).
ADA Relevance during COVID-19:
The ADA allows for much of the work-remote accommodations our employers are permitting during the coronavirus. Forget the Zoom technology, without ADA remote work might not be a “Reasonable Accommodation” for employers to offers all of us – especially those that are particularly vulnerable to the virus with underlying conditions or over a certain age. ADA application is going to get extended to e-commerce in ways like the Winn-Dixie ruling in Florida. Ask if the e-commerce technology is overlooking ADA and the hearing or sight impaired? How about remote education and the ADA (Title II)? Are schools considering ADA in their decisions to reopen or remain digital?
The ADA is more than curb cuts, ramps, audible crosswalks and elevator cars, etc. While the ADA’s roots are embedded in civil rights, the ADA extends to our digital or “order online and deliver to me” economy. COVID-19 is going to bring ADA back into focus as we do more work remote – and look to our housing to be more ADA accessible. And with more and more an online or e-commerce platform for retail and consumption, I fear our e-commerce technology has overlooked the ADA as many of these tech companies did not even exist in 1990 - or 2000 or 2010.
In closing, there was a quote that resonated as an appropriate punctuation mark on this anniversary and week in which we lost a pair of Civil Rights icons. It comes from Arlene Mayerson of DREDF just two years after the 1990 signing of the Act in her historical review on the history of the July 26, 1990,5 ADA legislation:
“For the first time in the history of our country, or the history of the world, businesses must stop and think about access to people with disabilities. If the ADA means anything, it means that people with disabilities will no longer be out of sight and out of mind. The ADA is based on a basic presumption that people with disabilities want to work and re capable o working, want to be members of their communites and are capable of being members of their communites and that exclustion and segregation cannot be tolerated. Accommodating a person with a disability is no longer a matter of charity but instead a basic issue of civil rights.”
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