San Francisco Chronicle (SF); Thursday, November 14, 1991
Carolyn Lochhead, Chronicle Washington Bureau

TEXT:

Washington - In less than three months, American business and government will come face to face with a sweeping new law that grants millions of disabled citizens a new class of legal rights.

The Americans with Disabilities Act of 1990, which begins to take effect January 26, ranks among the most significant laws to come out of Washington in years. No one is sure what its consequences ultimately will be. Some anticipate an era of greatly expanded opportunity for both the disabled and businesses who employ them. Others fear a debilitating legal clash and warn of potentially staggering costs for a law that cannot deliver on its promises.

Called by turns a new Emancipation Proclamation and a Lawyers' Annuity Act, the law grants millions of disabled people rights of access to and accommodation in the workplace and in all facilities serving the public. These include businesses, transit systems, telephone services and schools.

Few sectors of the nation (aside from Congress) are untouched. At least 5 million U.S. businesses will be affected, from corner hair salons to major corporations. Government operations from local libraries to homeless shelters all come under its umbrella.

'AN ABSOLUTE RIGHT'

"What this law is doing," says Michael Winter, executive director of the Center for Independent Living in Berkeley, "is saying that disabled people have an absolute right to be integrated into society."

He and others like Evan Kemp, chairman of the Equal Employment Opportunity Commission, one of four federal agencies administering the ADA, believe the legislation will greatly expand employment of the disabled.

Many economists, however, are less sanguine. "I think that it's been badly conceived," says Walter Oi, an economist at the University of Rochester, who is blind. "The act will not produce the results intended by its designers."

While promising greater independence and more jobs for the disabled, the law's costs have been understated and its benefits exaggerated, according to Oi and other economists.

LITTLE OPPOSITION

The act breezed through Congress with enthusiastic White House support. Upon signing the bill, President Bush likened it to the dismantling of the Berlin Wall, saying it "takes a sledgehammer to another wall."

Critics at the time, mainly businesses, hesitated to attack the bill directly. They described it as well- intended and focused on such rear-guard actions as removing current drug users, pyromaniacs and kleptomaniacs from its coverage, despite sections on emotional and mental illnesses.

The bill passed with so little controversy that even on the eve of implementation, many businesses, particularly small firms, remain unaware of its provisions.

COMPREHENSIVE LAW

The act is so comprehensive that even California, which has long had some of the nation's strictest disability statutes, will feel its effect. The law's coverage of emotional and mental illnesses, some estimate, will affect one in four Americans. It also covers HIV infection and past alcoholism and drug addiction.

Businesses must provide disabled workers with assistants, such as interpreters for the hearing-impaired, unless doing so would prove a hardship. And as a civil rights statute, the law applies the remedies of the new 1991 Civil Rights Act, which allows plaintiffs proving discrimination to recover punitive damages.

The EEOC is expecting that 12,000 to 15,000 complaints will be filed on the employment provisions in the first year alone, representing about 20 percent of the agency's discrimination cases. Chairman Kemp says the office may give priority to people with progressive disabilities, particularly AIDS.

COSTS ARE A MYSTERY

Until appellate courts begin the long process of legal interpretation, estimates of the total cost to the economy are unknown. Congress appropriated no financing, throwing the entire burden on state and local governments and on the private sector.

Although businesses with fewer than 16 employees are exempt from its employment provisions, the act contains no exemption for so-called public accommodations, one other departure from California law. These include virtually every retail firm: stores, bars, restaurants, professional offices, gyms, movie theaters, hotels, dry cleaners and shoe repair shops.

All such businesses must remove existing barriers to the disabled, to the extent that doing so is "readily achievable." Readily achievable will depend on the company's financial wherewithal. Large businesses must spend more than small businesses, giving the law an explicit "deep pockets" aspect. It is also an evolving term. What is not readily achievable in one year might be considered so in the next.

FREE HOME DELIVERY

Retail firms must be ready to accommodate any disabled person who seeks access. Accommodations might include providing free home delivery or widening checkout aisles. New construction must be accessible, and any alterations to existing buildings must improve access "to the maximum extent feasible."

Hospitals expect the law to cost them $20 billion over the next 10 years as they enlarge the size of dressing rooms, laboratories and other areas to accommodate wheelchairs. Hotels have estimated their costs at around $15,000 a room.

Employers must make "reasonable accommodations" to the disabled and ask that they perform only "essential job functions." An accommodation is reasonable if it does not pose an "undue hardship" financially. It might include anything from providing extra light to hiring a reader for a visually impaired worker.

Such terminology gives many businesses pause. The definition of reasonable accommodation "is a lawsuit waiting to be created," says Stephen E. Messinger of the Hay Group in New York, a labor consultant. "Reasonable people will disagree about what is reasonable."

In writing their regulations, the EEOC and the Justice Department deliberately left these terms vague, so that judgments could be made on a case-by-case basis. The approach leaves many unhappy.

"It's a guessing game right now," says Wendy Lechner of the National Federation of Independent Business, a small-business lobby. "Most other laws tell you up front what you need to do. This one says, 'Well, you need to do a whole range of things but we don't know what they are.' It leaves the business owner open to unlimited litigation."

'THE GENERAL'

Patrisha A. Wright of the Disability Rights, Education and Defense Fund of Berkeley, counters that the vague terms will protect businesses, because they allow authorities to consider a company's financial resources. "There is no reason why a Ma and Pa grocery store in the Mission should have the same financial obligation as Bechtel," said Wright, who is nicknamed "the General" for her leading role in coordinating passage of the act.

Ted Burke finds little comfort in this. He owns a Capitola restaurant named Shadowbrook, situated at the bottom of a steep hillside alongside a creek. Diners reach it by tram or by walking down a path. Over the years, he says, the restaurant made accommodations as it could afford them. The tram doors were widened and the lower landing of the elevator was relocated to accommodate wheelchairs. Burke plans to eliminate a dining room reached by steps.

The new law "won't really change our intention to provide access for everybody within our means," Burke says. "It just means that somebody can sue us if they don't think that what we are doing is reasonable."

What worries him is that reasonable is left for the courts to decide. "We all can support the law's intent," he says. "But it's the mechanisms that the law has that expose people to frivolous or unwarranted suits that are very costly to defend. We're now in the position of proving ourselves innocent, and it is very costly to do so."

Both sides say that they want money spent on removing barriers, not feeding lawyers and consultants. Businesses vow to make good-faith efforts to comply, and disabilities groups promise to eschew unreasonable demands. Jim Gleich, executive director of the Disability Rights, Education and Legal Defense Fund, says making compliance information available to both businesses and the disabled "will defeat a lot of those kinds of things that feed conflicts."

'BETTER TALENT'

Many large Bay Area firms, from Bank of America to Hewlett Packard, already have policies aimed at integrating the disabled into jobs and public places. For 10 years, Safeway has offered specially designed shopping carts, and now, motorized carts. "Long before anybody heard of ADA, it was our objective to make our stores as accessible as possible," says senior attorney Mike Boylan. "The more accessible we make our stores, the more customers can use them, and the more accessible we make our jobs, the better the pool of talent we have to fill them."

Nonetheless, most large companies are gearing up for a higher level of scrutiny. Many are setting up task forces and meeting with advocacy groups to assess what more should be done. They are conducting sensitivity training for employees to help forestall lawsuits. "We have preached and begged and cajoled companies to put a preventive program in place now," says Michael Lotito, managing partner for the San Francisco office of Jackson, Lewis, a labor law firm.

Companies are also blanketing their trails with paper. "The best we can do is the best-faith effort," says Jim Dinegar, of the Building Owners and Managers Association International, representing commercial property owners. Still, he adds, "We don't know how much is enough."

Document everything, he advises. "You can document that you surveyed your property (for barriers), you can document that you've gone to the seminars, you can document that you've begun to make changes, you can document that you met with persons with disabilities. But, still, you are not going to be sure that you've done enough to comply with the act until you're before a federal judge, and he or she says, 'Guilty as charged,' and you're fined $50,000."

A SMALL FRACTION

Although the law is clearly aimed at the mobility-, sight- and hearing-impaired, these groups constitute a small fraction of the 43 million Americans that Congress says are disabled. The National Center for Health Statistics estimates that there are 1.07 million wheelchair users, 1.4 million Americans who are visually impaired and 813,000 who are hearing-impaired. Only about 5 million working-age people receive government disability income assistance. To reach 43 million, many more people must be counted as disabled, including the elderly.

Supporters maintain that the law will pay for itself by taking millions of people off welfare and putting them to work. The elderly, however, "are unlikely to re-enter the workforce because of anything ADA does," says Richard V. Burkhauser, a leading scholar on disability programs at Syracuse University.

Many economists question whether the law's costs will be as trivial and its benefits as great as promised. The act gives new legal protections to a vast number of people. Yet employment mandates will not pull the elderly back into the job market, economists warn, nor will they draw as many disabled off welfare rolls as proponents anticipate. And although the law may increase jobs for the highly skilled disabled, they add, it may do little for the least skilled and most severely impaired.

'HIGH-RISK CATEGORY'

In fact, many contend that these workers may find that job prospects grow even dimmer because while the law grants the disabled new rights, it also imposes on them a new burden. All disabled workers, says Walter Olson, an expert on litigation, "are now a legally high-risk category of worker to hire."

As a result, the prospective cost of hiring the disabled will rise, argues Carolyn Weaver, an economist at the American Enterprise Institute in Washington. The less skilled the worker, and the higher the cost of his or her accommodation, she says, the less willing an employer will be to bear the added legal risk.

However unclear their potential liability, companies must take some action, experts warn. Disability groups say they will litigate or demonstrate if they feel the act is not being adequately carried out. The company that will pay most dearly, says Lotito, "is the one where an investigator knocks on their door and says, 'We have an ADA complaint,' and the company says, 'American Dental Association? What are you doing here?' That's going to be the company that's going to have a significant problem."

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THE DISABILITY LAW AT A GLANCE

The Americans With Disabilities Act of 1990 and its implementing regulations are addressed primarily to the hearing- and sight-impaired and persons in wheelchairs.

.

People who are hearing-and/or sight-impaired and/or in wheelchairs

1% 3.3 million

.

U.S. population designated as disabled under new Disability Act guidelines

17% 43 million

.

Conditions Congress included in protections granted by the bill and percent of U.S. population with disability:

.

Emotional and mental illness 16.7%

HIV infection .03%

Alcoholism 8.6%

Drug addition 2.5%

Physical disability 8.8%

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The law grants disabled persons rights of access to and accommodation in both jobs and all facilities serving the public. At a glance, here is how the law would affect various institutions:

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Business

Jobs may have to be restructured, work schedules modified, special equipment utilized and employees hired to aid disabled.

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Consumer

Tables in restaurants and furniture and equipment of businesses may be rearranged, checkout aisles widened and hotel rooms enlarged.

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Transit

Costs estimated at $1.4 billion to provide a 'paratransit' system to those who cannot use accessible buses and trains.

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Health care

Hospitals estimate costs at $20 billion over 10 years primarily to enlarge size of facilities to permit wheelchair access.

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Government

State and local government programs, services and facilities are covered, including courts, police departments, libraries, parks and schools.

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Sources: National Institutes of Mental Health, National Institute on Alcohol Abuse and Alcoholism, National Household Survey on Drug Abuse (1990), National Center for Health Statistics, U.S . Congress, Center for Disease Control

CHRONICLE GRAPHIC

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