Proactive, Not Reactive, Enforcement of ADA

Let me start by throwing out some seemingly loosely-connected facts and figures. Ready?

  • The unemployment rate of persons with disabilities (PWD hereafter) was 12.5% in 2015.  Keep in mind that unemployment statistics do not usually include those who have been looking for a long time or who gave up looking due to lack of viable opportunities.
  • The Americans with Disabilities Act requires that PWD have equal access to facilities, services, employment, goods, etc., as persons without disabilities.
  • Currently, the ADA is enforced only after a complaint is filed.
  • Many corporations adopt a “wait and see” attitude about upgrading their facilities, goods, services, accessibility, employment practices, etc.,  to be fully ADA compliant, opting instead to wait to see if they get sued by someone before they bring everything up to standard.
  • In a nutshell, the ADA applies to everyone who employs individuals,  and  who provides goods, services, communications,transportation, meeting space, etc., to the public.
  • State, local, and federal governments are required to provide accommodations to PWD, whether it is covered under the ADA, Rehabilitation Act of 1973, the Air Carrier Access Act, mandates by the Department of Transportation, or some other statute.

Got all that? Good.

I have a proposal that will not only help PWD to enter or re-enter the workforce, but it will also ease some burden on understaffed and underworked departments, as well as save employers money:  Create a separate governmental entity tasked with proactively inspecting for ADA compliance in publicly-accessed spaces, and appoint specially-trained ADA compliance consultants/inspectors to the Equal Employment Opportunity Commission to investigate claims of discrimination on the basis of disability. (In this proposal, the terms “inspector” and “consultant” are used interchangeably.)

What?!?! Create ANOTHER government office at a time when so many are crying out that we need to reduce governmental reach, not extend it? Are you kidding me?

No, I’m not, and here’s why.  Currently, there are a few privately formed ADA compliance consultant businesses, but there is no such thing as an official program or license for such consultants/inspectors.  Someone can currently claim to be an ADA expert and not know diddly squat about what the ADA requires of businesses and employers. I am not saying this is necessarily the case, but the opportunity to mislead businesses is there.  Corporations could be paying an ADA Consultant an exorbitant fee to make sure they are making all the provisions required by the ADA, and still wind up getting sued for non-compliance.  If an official, accredited certificate program were created, and records kept on file just as one keeps other business licences on file, it offers protections for both the business hiring them and the people acting as ADA compliance consultants.

If the certificate program is offered in multiple ways (via Internet, in person, through the mail) with multiple accommodations built in (ASL interpreters, large print materials, text-to-print, etc.), for a low fee and/or as part of a Return to Work or state Workforce Commission training program, it would allow PWD to train to become ADA compliance consultants. There are already tax credits available to corporations who hire people who have been out of work long term and/or are PWD; this just gives more opportunity to put these people back to work. Of course, it would be discriminatory to only offer these positions to PWD, so hiring would be open to all applicants who meet all the requirements of the program and receive their certificate. Those holding such a certificate could either seek work for the government office conducting the inspections, or could be retained in a variety of ways to help corporations ensure they pass inspection the first time.

What services would they provide? ADA Consultants would conduct yearly inspections on businesses, meeting places, those providing public goods/services, convention centers, schools, hotels, etc., to ensure it is in compliance. Just as  businesses are required to have regular fire extinguisher/fire code inspections, health and safety inspections, and other reviews, this would be added to a business’ list of inspections that are required.  The business would pay a sliding fee depending on the size of the property for this service. This fee is what would provide the majority of the funding for these offices.  To ease the sting a little, businesses could then file for a credit or deduction on their yearly taxes based upon what fee they paid.  Of course, businesses found to be in violation will also receive a fine (depending on how grievous the violation) and a set amount of time to bring the property up to ADA compliance.  If compliance or a schedule to come into compliance is not met within a reasonable amount of time, then the case would proceed to court, where additional, heftier fines could be levied. (However, any fees paid for inspection or fines paid for small infractions would still be far less expensive for a company than if they were sued under the current system, which allows for fines of $55,000 for a first finding of non-compliance, and $110,000 for each additional violation.So this proposal is still a win for businesses).

But what if a company cannot afford the repairs a consultant states are needed, or what if the company disagrees with the findings? Currently, there is already a system in place through which companies can get tax credits for repairs made, and even a system by which they can secure government loans to do so. If a company disagrees with a consultant’s findings, they can file an appeal and request a new inspection by an inspection supervisor, for a fee. If the new inspection finds that repairs are not needed, the additional fee will be returned to the company and no additional fines will be levied.  If the new inspection supports the findings of the original inspection, then the additional fee is retained by the inspection supervisor, fines are levied based upon the level of infraction, and a timeline for repairs is developed. Once the repairs have been made and the company is found to now be in compliance, the additional inspection fee will be returned to the business.  Said business will also receive paperwork detailing how much of a tax credit or deduction the company will receive and which form to use to claim it.

But the cost! What about the cost to the government? There’s already so much national debt!  I can hear people screaming that already. One way to keep overhead low is through allowing consultants to work from home offices, only having to come in to work for scheduled meetings and/or any training that cannot be handled over the Internet.  Reports can be filed electronically using applications such as Google Drive, Dropbox, etc. Together, these measures keep the costs of utilities, maintenance, supplies, etc., low, because the majority of work would be done in the field and in the consultants’ home offices.  One or two secretaries could be assigned to filing, message relay, and other administrative tasks in an existing government office location.  Any training or meetings could be scheduled to accommodate the needs of both the ADA compliance division and the department already housed in that location. As long as the  building is already ADA compliant so as to meet the needs of all workers, there should be no problem.

But how would it work outside of inspections?  Don’t consultants need a place to work, write reports, consult statutes, etc.? Once hired, consultants can be assigned a certain sector of their locality.  This prevents businesses feeling “harassed” by being contacted by multiple compliance consultants.  So not to create a big backup of appointments, the sectors could be further subdivided into time frames (certain months or spans of months) in which that locality is required to have its regular inspection.  When businesses in that sector call in to schedule their inspection, their lead information will be sent to the inspector who is assigned to that sector, and then the consultant will schedule appointments according to the predetermined month that sector needs to be inspected and the availability of appointments. The inspector will conduct the inspection, then return to their home office to do any necessary research (has the location already been fined under the old system, what particular areas of the ADA are applicable to the locality, etc.) and file their report(s).  Inspectors will have a certain time frame in which to file the report so as to allow the business owner and/or property owner (as the ADA stipulates that both entities are responsible for compliance) a chance to file an appeal, respond, or pay any fines in a timely manner. Because of the paperwork and field word involved, consultants/inspectors can only complete a set number of inspections a week.  This number can be adjusted within an allowable range depending on the amount of research and follow up needed on each case.  As time progresses, inspectors will also build a list of contacts with whom to communicate about scheduling future inspections if the company does not contact them at least 30 days before their next inspection is due.

But how will everything get organized in time? What about the logistics of all this? The good thing is, the ADA and the multiple other acts barring discrimination on the basis of disability are already laid out in their individual legislative pieces.  All that needs to be done is to develop a program that certifies that people are experts in these laws, their requirements, and have satisfactorily completed a certificate program attesting to their knowledge.  Course materials would have to be developed that incorporate paralegal studies, the particular inspection techniques (and use of any software, tools, and assistive devices that could act as accommodations to help PWD to conduct said inspections and required research), terminology – basically a mixture of some paralegal studies, some construction/building code studies, exhaustive study of the different statutes and practical application thereof, administrative tasks such as report formats, at least one required class on recognizing ableism as a barrier to access (and yes, even some PWD still have some ingrained ableism tendencies of which they are not fully cognizant), as well as business electives they feel they may need to help them be successful. This will take time! It will not be a “done in two months” kind of program. But the good thing about that is as the first classes of students in accredited programs are working toward certification, the changes needed within the governmental offices can be taking place, as well. This allows these changes to happen organically, rather than in a rushed manner that will hurt the process.

Obviously, there are still some holes to fill. There would need to be a decision made on how much to charge for inspections, how much the fines would be, etc. There will need to be discussions on which of the several different offices that deal with laws regarding accessibility for PWD will actually oversee this new office. Tax credits, deductions, pay scale, how many programs to accredit, how many candidates to allow in, how many staff will be needed – yes, it will be work. But it will be work that stimulates the economy in that it allows the unemployed and underemployed (both PWD and not) to get to work.  Thus these people who were previously unemployed or underemployed will then boost the economy by paying taxes, buying goods and services, moving to different houses, paying into Social Security/Medicare, no longer needing as much public assistance, freeing up an overworked system to help those who are not able to work due to reasons other than being discriminated against by employers.

If one wanted to be really ambitious, one could train more PWD to handle EEOC disability discrimination claims through a home office, as well. How about tax incentives for employers who find creative ways to allow PWD to work from home, use flextime, and other accommodations so that they can perform work where they might not have been able to do so before, not because of a lack of ability, but because of a lack of access? All it takes is a change in perspective and a little thought to make opportunities for PWD to work, to allow access for PWD in public spaces, and make everyone more aware of how much we have to offer.

Whew! You made it all the way down here to the end. This piece is long, I know. But now it’s your turn.  Tell me in the comments what you think. Are there any glaring mistakes I’ve made that you want to point out? (Please be civil in all discourse.) Do you have an idea that expands on and/or improves something I’ve said? Please tell me! My hope is to create a petition to the White House about this, so I want it to be the best proposal it can be.

(The majority of my information about the ADA, legislation for PWD, etc. in this proposal came from http://www.ada.gov/q&aeng02.htm. Other ideas/notions come from my personal experience as a news reporter, administrative assistant, legal secretary, researcher, teacher, and writer. Yes, that IS a lot of different jobs I have held!)

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