Delaware still has work to do when it comes to ADA [video]

Designed to level the playing field, the Americans with Disabilities Act turns 25 this summer.

The ADA prohibits discrimination and ensures equal opportunities for those living with disabilities.

“Prior to the ADA, there were very few state laws that required commercial establishments, stores and vendors to not discriminate on the basis of disability,” said Brian Hartman, an attorney who runs the Disabilities Law program for the Community Legal Aid Society in Wilmington. “So that was one of the major changes that you’ve seen from 1990 until now.”

President George H.W. Bush signed the ADA into law on July 26, 1990.

Since then, Delaware has done its part to achieve compliance with most places providing handicap accessibility in the form of elevators, where necessary; breaks in the curb, commonly referred to as curb cuts; and wheelchair ramps.

Delaware has also made a concerted effort to ensure that people living with disabilities who can and want to contribute to the workforce are given that opportunity.

“Employing people with disabilities makes good business sense and it helps government improve the competitiveness of our workforce,” said Governor Jack Markell, in his April 10, 2015 weekly message.

Markell’s record also includes signing Delaware’s Employment First Act into law in July 2012. The measure encourages state agencies to create a more integrated workforce by ensuring that people with disabilities have more job opportunities. The law mirrored the governor’s A Better Bottom Line: Employing People with Disabilities initiative that he championed when he chaired the National Governors Association in 2012-2013.

Non-compliance

“There’s so much still left to do,” said Daniese McMullin-Powell, a disability rights activist in Newark. “If there wasn’t, there wouldn’t be any such organization as ADAPT that I belong to, which is a disability rights grassroots organization that goes as far as civil disobedience to get the job done.”

The 69-year-old contracted polio at the age of 3. She depended on crutches and braces for years before switching over to a wheelchair when she could no longer walk.

“If you go down to Dewey Beach, here in Delaware, they don’t care if they have curb cuts or not. They’re getting better year after year, but somebody has to do an awful lot of complaining and threatening with lawsuits and all,” she said. “It shouldn’t have to be that way, it should be done.”

Recently the Delaware Dept. of Transportation inventoried the miles of sidewalk it’s responsible for in the state as part of its ADA Self-Assessment and Transition Plan.

The May 2014 report showed out of the 520.13 miles of sidewalk assessed statewide, only 44 percent actually met ADA standards.

“They concede that there were problems in the past, but they’re trying their best to move forward and to come up with a deliberative way to fix things,” said Hartman.

“It should happen that if you’re not in compliance with a law that’s 25 years old, that there is some sort of penalty and some sort of acknowledgment that it’s bad and that you have to correct it,” Powell said.

Hartman agreed that it’s hard to justify non-compliance after 25 years, but said in DelDOT’s case, money is an obvious issue and that making sense of any federal law can be challenging.

“Whenever you have a regulation or a law there’s ambiguity and the ADA is no different,” Hartman said. “I mean, there’s hundreds of pages of regulations and guidance and the guidance may not be law, it may just be encouraging, it’s hortatory, but people, it’s easy to get confused by what the standards are.”

Enforcement

There are no police officers who enforce the ADA federal standards in states, so enforcement of the law depends on people filing lawsuits against businesses or governments. But, there’s not much of an incentive to sue because in many states you are not awarded any damages should you win your case.

“You may get them to change their way, but you’re not getting any money,” Hartman said. “Who wants to go to court, you have to hire an attorney and go through the whole nine yards, so that’s an impediment or a discouraging factor for enforcement of the ADA.”

Delaware, however, does have a state law that overlaps with the ADA in which a plaintiff can be awarded damages.

Harrington resident Emmanuel Jenkins believes non-compliance in states after all of this time boils down to lack of education.

“People don’t take on things unless it affects them,” he said. “Take Legislative Hall for instance … until we get people in the position who have people with disabilities in their families, [only then will] they get the big picture.” 

Diagnosed with cerebral palsy, the ADA has been in effect for the majority of the 31-year-old’s life.

“My job is to fight to make sure [the ADA’s] upheld, to make sure that it keeps going, to make sure that I make way for the next generation,” Jenkins said.