Case Study In How When Ethics Fail And The Law Steps In, The Law Will Screw Things Up Beyond Repair

Like Title IX, like Obamacare, like so many well-intentioned laws and regulations designed to assist and protect vulnerable citizens or traditionally oppressed groups, the Americans with Disabilities Act (ADA) opened the door for abuse, absurd taxpayer costs, and unanticipated consequences. The ADA was rammed into law by activists compassion bullies who proclaimed that any attention to proportion and cost-benefit analysis was mean and heartless. Here is an example of what else came in that open door:

From the LA Times::

ADA lawsuits are now as common as sex-discrimination lawsuits, with more than 26,000 new claims filed against employers each year. The latest litigants have their sights on the most innovative segment of our domestic economy: e-commerce.In this trend, people sue businesses because their websites aren’t sufficiently accessible to the disabled — because the websites lack assistive technologies for the blind or hearing-impaired, say. It began in 2000, when Bank of America became the first entity to settle a web-accessibility lawsuit. Safeway and Charles Schwab soon followed suit. In 2008, Target paid $6 million to settle a class-action suit brought by the National Federation of the Blind, and nearly $4 million more to cover the plaintiffs’ attorney fees and other costs. More than 240 businesses across the country have been sued in federal court over website accessibility since the beginning of 2015. Similar litigation has been brought against universities on the grounds that the free online courses they offer aren’t captioned for deaf users, and against ride-sharing services because their smartphone apps lack text-to-speech capability for blind users.

…According to the demands of disabled users, in order for a website to be accessible, it must use fewer pictures, present text in a format that is compatible with text-reading software and employ design that allows for easy navigation. But the features that make a website more accessible for one disabled group are bound to be objectionable to another.

They may also conflict with other needs. Consider bank websites, which often employ timers that will shut down an online session for security reasons after a particular time period is exceeded. Such “timeouts” could present problems for some disabled users, but eliminating them in the interest of accessibility could impair security for all.

In the process of making a website accessible, questions invariably proliferate. Do certain color combinations violate the ADA because they confound the colorblind? Are certain layouts inaccessible if they’re confusing to users with a limited field of vision? Do the accessibility requirements apply only to the websites themselves, or do they also apply to Web content, such as advertising on a third party’s website? Will website hosts be responsible for the compliance of third-party sites? Must archived Web content be revised to comply? What about mobile apps? Do temporary technical bugs in an otherwise compliant website constitute a violation? What physical and mental conditions will require accommodation? So far, Web accessibility lawsuits have concerned the vision- and hearing-impaired, but future cases could be brought on behalf of plaintiffs diagnosed with dyslexia, ADD/ADHD, narcolepsy, cognitive impairments, paralysis and many other conditions.

The game is to sue deep pockets website owners and extort settlement pay-offs. That’s fine for the Bank of America, but not for, say, Ethics Alarms. This blog could be put out of business by such a lawsuit, and so could hundreds of thousands of others.

The problem with the ADA was always that the demand that the nation pay billions to minimize the inconveniences and hardship of  the relatively few disabled individuals these mandated measures would help made no sense from a utilitarian or practical analysis. For example, it would have been far cheaper for many cities to maintain a limo service that picked up wheelchair bound citizens and delivered them to their desired location than to install wheelchair lifts in all buses, but the disabled lobby insisted on the latter.  A separate service “marginalized” the disabled, who wielded the Golden rule like a club in this debate.

I haven’t checked the statistics in many years, but last time I did they indicated that many buses had never had an occasion to use the lifts, which costs many thousands of dollars and were expensive to maintain. I know that the theater my company performed in was required to have sound-boosting earphones for the hard of hearing which 1) were almost never used 2) interfered with the theater’s sound system and 3) didn’t work very well. In my neighborhood, every corner has required curb cuts for wheel chair-users who would be certifiably mad if they dared to use them. (See video above). The cuts  are on hilly streets and uneven ground. They are also perilous in the dark, and on one occasion almost disabled me.  In the massive Reagan Building in downtown D.C. where I give an ethics  program every month, the elevator controls are knee high (to accommodate those in wheel chairs) with the floor numbers in braille for the blind. Unfortunately, since the  raised bumps are on metal panels, the actual numbers are the same metal color and virtually unreadable by anyone who isn’t blind, especially since  they are located below the average rider’s waist.

The Times writer, Mark Pulliam, calls for this:

“Congress should either exempt websites and their related content from the requirements of the ADA, or enact detailed guidelines for the accommodations required by the law.”

Well, that might mitigate some of the problem. The real problem is that legislators and regulators aren’t nearly as competent as they need to be if they are going to pass sweeping laws that place compassion over common sense and while ignoring rational principles of ethics balancing,


Pointer: Amy Alkon

22 thoughts on “Case Study In How When Ethics Fail And The Law Steps In, The Law Will Screw Things Up Beyond Repair

  1. Jimmy Carter’s boondoggles? The Americans with Disabilities Act wasn’t even recommended until 1986, under Reagan, and not enacted until 1990 under GHWB. It’s sometimes cited as an example of a conservative putting a liberal idea in place, like Nixon going to China or Eisenhower and the interstate system. Jimmy Carter was probably the worst president of the second half of the 20th century, but the ADA didn’t happen on his watch.

    • I recalled that Carter’s administration was when the dam broke. Here was what went on…

      1977 – Initially Joseph Califano, U.S. Secretary of Health, Education and Welfare, refused to sign meaningful regulations for Section 504 of the Rehabilitation Act of 1973, which was the first U.S. federal civil rights protection for people with disabilities.[60] After an ultimatum and deadline, demonstrations took place in ten U.S. cities on April 5, 1977, including the beginning of the 504 Sit-in at the San Francisco Office of the U.S. Department of Health, Education and Welfare. This sit-in, organized by Judith Heumann, Kitty Cone, and Mary Jane Owen lasted until May 4, 1977, a total of 28 days, with more than 150 people refusing to leave. It is the longest sit-in at a federal building to date. Joseph Califano signed the regulations on April 28, 1977
      1977 – Max Cleland was appointed head of the U.S. Veterans Administration. He was the first severely disabled person and the youngest person to fill that position.
      1977 – The White House Conference on Handicapped Individuals drew 3,000 people with disabilities to discuss federal policy toward people with disabilities. It resulted in numerous recommendations and acted as a catalyst for grassroots disability rights organizing.
      1977 – The Lanterman Developmental Disabilities Act (AB 846), also known as the Lanterman Act, is a California law, initially proposed by Assemblymember Frank D. Lanterman in 1973 and passed in 1977, that gives people with developmental disabilities the right to services and supports that enable them to live a more independent and normal life. The Lanterman Act declares that persons with developmental disabilities have the same legal rights and responsibilities guaranteed all other persons by federal and state constitutions and laws, and charges the regional center with advocacy for, and protection of, these rights.[65]
      1977 – Legal Services Corporation Act Amendments added financially needy people with disabilities to the list of those eligible for publicly funded legal services in America.
      1977 – The US Congress, during the presidency of Jimmy Carter, created the National Committee for the Protection of Human Subjects of Biomedical and Behavioral Research to investigate allegations that psychosurgery—including lobotomy techniques—were used to control minorities and restrain individual rights. The committee concluded that some extremely limited and properly performed psychosurgery could have positive effects.
      1977 – In Lloyd v. Regional Transportation Authority, the U.S. Court of Appeals, Seventh Circuit ruled that individuals have a right to sue under Section 504 of the Rehabilitation Act of 1973 and that public transit authorities must provide accessible service. However, the U.S. Court of Appeals, Fifth Circuit, in Snowden v. Birmingham Jefferson County Transit Authority undermined this decision by ruling that authorities need to provide access only to “handicapped persons other than those confined to wheelchairs.”
      1978 – On July 5 and 6 1978, a Denver intersection was the site of the first demonstration for wheelchair accessible public transportation when nineteen members of the Atlantis Community (known as the Gang of Nineteen) chanting “We Will Ride” blocked buses with their wheelchairs, staying in the streets all night.
      1978 – Disability rights activists successfully protested the Denver Regional Transit Authority with a civil disobedience campaign because the transit system was inaccessible to people who used wheelchairs.
      1978 – The Adaptive Environments Center was founded in Boston.
      1978 – Title VII of the Rehabilitation Act Amendments of 1978 became law in the U.S., and it established the first federal funding for consumer-controlled independent living centers and created the National Council of the Handicapped under the U.S. Department of Education.
      1978 – “On Our Own: Patient Controlled Alternatives to the Mental Health System”, by Judi Chamberlin, was published; it became the standard text of the psychiatric survivor movement.
      1978 – In Rennie v. Klein, the Federal District Court of New Jersey ruled that an involuntarily committed individual has a constitutional right to refuse psychotropic medication without a court order.
      1978 – The National Center for Law and the Deaf was founded in Washington, D.C.
      1978 – Handicapping America, by Frank Bowe, was published; it was a comprehensive review of the policies and attitudes denying equal citizenship to Americans with disabilities. It became a standard text of the disability rights movement.
      1979 – Part B funds created ten new centers for independent living across the U.S.
      1979 – Vermont Center for Independent Living, the first statewide independent living center in the U.S., was founded by representatives of Vermont disability groups.
      1979 – The U.S. Supreme Court ruling in Addington v. Texas raised the burden of proof required to commit persons for psychiatric treatment from the usual civil burden of proof of “preponderance of the evidence” to the higher standard of “clear and convincing evidence”.
      1979 – In Southeastern Community College v. Davis, the U.S. Supreme Court ruled that under Section 504 of the Rehabilitation Act of 1973, programs receiving federal funds must make “reasonable modifications” to enable the participation of otherwise qualified disabled individuals. This decision was the Court’s first ruling on Section 504 establishing reasonable modification as an important principle in disability rights law.
      1979 – In Rogers v. Okin, the United States Court of Appeals for the First Circuit ruled that a competent patient committed to a psychiatric hospital has the right to refuse treatment in non-emergency situations.
      1979 – The Disability Rights Education and Defense Fund (DREDF) was established in Berkeley, California. It conducts landmark litigation and lobbying.

      1980 – The National Disabled Women’s Educational Equity Project, Berkeley, California, was established by Corbett O’Toole. Based at the Disability Rights Education and Defense Fund (DREDF), the Project administered the first national survey on disability and gender and conducted the first national Conference on Disabled Women’s Educational Equity held in Bethesda, Maryland.[1]
      1980 – The Civil Rights of Institutionalized Persons Act authorized the U.S. Justice Department to file civil suits on behalf of residents of institutions whose rights were being violated.

      1980 – The American National Standard Institute, Inc. (ANSI) published American Standard Specifications for Making Buildings Accessible to, and Usable by, the Physically Handicapped (the A117.1 Barrier Free Standard). This landmark document, produced by the University of Illinois, became the basis for subsequent architectural access codes Uniform Federal Accessibility Standard 1984 and the Americans with Disabilities Act 1990.

      Thanks, though, I’ll fix that.

      • There is a lot to unpack here, but would like to offer a few thoughts on the above. Similar to the high cost of ignorance on a personal level, the cost to a nation like ours can be very high for exclusiveness policies. We have seen this throughout American history where many countless lives were lost trying to balance the inequities that existed. Correspondingly, like education on a personal level, inclusiveness is not free or without collective costs. It is the cost of inclusiveness we most clash on because the question becomes, “who pays for it” and “how much” and even at times “when do I stop paying?” The truth of the matter is that we all pay for it… one way or another. Moreover, the costs often reveal themselves to be substantial for those who may have never been connected to the incident that created the original inequity. This “cost to innocents” is simply a reality and one of the many consequences in the pursuit of inclusiveness.

        I will contend that if we agree that all people should have equal access to services considered to be the right of all, we will need to then figure out what that means and how best to operationalize that access in a way that mitigates the unintentional consequences that often result. Clearly, there are and will be cases where not everyone will be happy with outcomes, but rather than making everyone happy, the goal should be to structure “as equal a society as possible.” A society should never seek to please everyone, but should seek as equitable society as possible by giving alternative means to achieve similar goals. In a society like ours, nothing will always be 100% fair, so I think that is an unattainable ideal. Nevertheless, as technology is used to advance society, it should also seek to include as many as possible in the trek forward.

  2. I know someone who uses a wheelchair that is a professional litigant. They told me they derive most of their income from being a plaintiff in ADA suit after suit. Their rationalization was they had no other means to make money, since they can’t find a job suitable for someone who cannot move and government disability benefits are too meager to survive on.

    • That person is no better than a thief. If fact, a thief is better, as they are honest in their intent to defraud you. This person is a predator, a wolf in sheep’s clothing, who seeks his victims from the innocent.

  3. The ADA has been on my mind lately, as the requirement for compliance has apparently been leading universities (UC-Berkeley comes to mind as a recent example) to remove free learning materials, typically videos of old lectures, due to lack of subtitles. Even given the funds to do so, something like 20,000 hours of video on higher-ed topics would be a long and involved undertaking for any university to subtitle. Meanwhile, the rest of us must go without.

  4. For example, it would have been far cheaper for many cities to maintain a limo service that picked up wheelchair bound citizens and delivered them to their desired location than to install wheelchair lifts in all buses, but the disabled lobby insisted on the latter

    Do you have any quotes showing this?

    • Old issues—I have them somewhere, but in paper files. The dollar factor is self-evident, isn’t it? As for activists rejecting solutions that didn’t allow them to do things “like everybody else,” I have personal anecdotal evidence, as when i explained that the need to make an old theater wheel-chair accessible was financially impossible, but we could always arrange to have a patron lifted through the entrance. This was rejected as not sufficiently dignified and that it did not permit autonomy.

      • People have to acknowledge that with current technology, there is a point at which a person’s autonomy of motion becomes nonexistent. Are you also obligated to make the theater accessible to people who are completely paralyzed? Do you have to narrate every setting, action, costume, prop, and facial expression for blind people? I’m all for making it possible for anyone to experience the world as much as they can, but that doesn’t mean we slow everything down for everyone.

        All people are not created “equal”, and it’s neither obligatory nor possible to make them “equal”. Empowering people is an excellent goal, but trying to empower people “equally” is a futile and pointless goal. Compassion is necessary, but it cannot and should not be compulsory for anyone. Do we need to make everyone read “Harrison Bergeron” again?

  5. Jack said:
    “The problem with the ADA was always that the demand that the nation pay billions to minimize the inconveniences and hardship of the relatively few disabled individuals these mandated measures would help made no sense from a utilitarian or practical analysis. For example, it would have been far cheaper for many cities to maintain a limo service that picked up wheelchair bound citizens and delivered them to their desired location than to install wheelchair lifts in all buses, but the disabled lobby insisted on the latter. A separate service “marginalized” the disabled, who wielded the Golden rule like a club in this debate.”

    At the risk of putting my hand in a wood chipper, couldn’t much the same be said for the Gay Rights Movement? It seems to me that the LGBTQ+ community doesn’t just want “equal”, but “special” as well. And, in truth, because Americans have always been soft-hearted, both the LGBTQ+’s and the Disabled Activists will get what they seek.

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