The Other Side of Disability Access

Abstract

When it comes to accommodation requests under the Americans with Disabilities Act, employee requests have record keeping, oversight, accountability and due process. Customers don’t even have the protection of record keeping, and without that the rest is meaningless. This article proposes similar protections for customers. GOALS AND POLICIES The vast majority of companies are committed to continuously improving diversity and inclusion, and to provide an environment that is safe, welcoming, inclusive, and respectful for all. Under Title III of the ADA, places of public accommodation (private businesses that are open to the public) must give people with disabilities an equal opportunity to participate in and to benefit from their services.1 Businesses are expected to consult with the person with a disability. The Department of Justice notes: “Businesses have formal and informal policies, practices, and procedures. However, sometimes they can make it difficult or impossible for a customer with a disability to access goods and services. That is why the ADA requires businesses to make ‘reasonable modifications’ to their usual ways of doing things when serving people with disabilities. Most modifications involve only minor adjustments in policies.”2 At many businesses, this is handled informally, with a discussion and an acceptable accommodation. Many requests don’t cost anything, such as adjusting the volume of background music for the hearing disabled.3 However, what happens if a request applies to multiple disabled people, or multiple locations in the same city and can’t be addressed by an individual employee, or an employee denies a legitimate accommodation request? The ADA uses the same criteria to evaluate both employee accommodation requests under Title I (regulated by the EEOC) and customer requests under Title III (regulated by the DOJ).4 For employees, there are checks and balances that include oversight by the EEOC with record keeping and reporting requirements. But there are none of those record keeping protections for customers. There are many valid circumstances for treating employees and customers differently under the ADA. However, with regard to procedures for handling accommodation requests, employees versus customers is a distinction without a difference—except for the people the act intends to cover! Without records, well-meaning companies don’t know how many requests they have received, on what subject, on what criteria were they approved or denied, and there is no way for them to evaluate whether they are meeting diversity and inclusion commitments. The DOJ is charged with enforcing the ADA for customer accommodation requests, but without records what can they do? It seems that’s a system that allows for unchecked and undocumented discrimination. REALITY Access for the disabled is grounded in the ADA and company policies, but the reality for many disabled is far different. One would think that if one industry focused on accessibility for the disabled, it would be the health care industry. However, studies show both explicit and implicit biases are a challenge in this industry as well. Explicit bias. In a 2022 NPR report5 about a series of anonymous interviews with 22 U.S. physicians, some admitted to refusing care to people with disabilities, making the excuse that they weren’t taking on new patients. One specialist called them a disruption to the practice. These doctors found patients with disabilities to be entitled, to want accommodations that the physician didn’t think that they needed, and to come in with kind of an attitude. Implicit bias. There’s a standard test to determine implicit bias. A 2020 study6 revealed that despite a majority of health care providers self-reporting not being biased against people with disabilities, implicitly, the overwhelming majority were biased. Andres Gallegos, Chairman for the National Council on Disabilities, an independent federal agency charged with advising the President, Congress, and other federal agencies, put it bluntly: “Explicit and implicit discriminatory bias within the health care professions represent an insidious virus against which people with disabilities have been fighting for decades. The breadth of the problem is already clear. I believe we must respond collectively to address the discriminatory bias.”7 The author puts it this way: The only accommodation rights disabled people have are the ones recognized by the person standing in front of them. HOW TO ADDRESS BIAS The challenge of explicit and implicit bias is true in every aspect of life: medical, legal, academic, political, business, and within the public at large. Statistics show its highly likely great companies have some wonderful people who may not even be aware of their implicit bias and its impact on the disabled. However, the type of bias doesn’t make a difference to the disabled person. Studies show it can be harmful on many levels. The AMA8 concluded we have responsibilities to “recognize the authority of people with disabilities as experts about their own lives and communities and to elevate their voices. The claims made by people with disabilities as well as entire disability communities are regularly diminished or not taken seriously. This marginalization is exacerbated in cases in which professional and even untrained people are positioned to make decisions about forms of life of which they may have no lived experience.” The AMA suggests practicing “disability humility.” This is good advice for all. Tinnitus and hyperacusis are complicated hearing conditions. Tinnitus is the perception of sound when no actual external noise is present, commonly referred to as ringing in the ears. The National Institute on Deafness and Other Communication Disorders estimates that approximately 10% of the U.S. adult population—over 25 million Americans—experience some form of tinnitus. Roughly 5 million people struggle with burdensome chronic tinnitus, while 2 million find it debilitating.9 Hyperacusis is a reaction to moderately loud sounds that comes in four types (loudness, annoyance, fear, and pain) of which patients may experience a combination. There are many causes, both hereditary, environmental, or comorbid with many other conditions. There is no cure for tinnitus or hyperacusis, and there is no proven drug or surgery that can treat the source. In part because of the lack of a cure, patients can suffer side effects of depression, distress, anxiety, sleep disturbances, and difficulties with communication, hearing, and focus. A minimum of 6 million American adults have some level of hyperacusis. Potential treatments to help cope with side effects include counseling, sound therapy, relaxation exercises, and medication. However, some treatments that help some patients make the condition worse in others.10 It can be very complex and lay people should look to the disabled for guidance as to what accommodation is best suited for their condition. All the experts agree avoiding loud sounds helps preserve your hearing. The hearing disabled are the “canaries in the coal mine,” and their requests also help the public at large avoid hearing injury. People with sensitive hearing conditions can’t have loud rallies encouraging people to honk their horns and they can’t protest in congress with bullhorns, but it benefits public health to lean in and listen. IMPLICATIONS FOR COMPANIES It is a difficult environment for the disabled, especially for those with invisible disabilities, such as hearing conditions. The ADA may say what needs to be done, but when a request is denied, unless someone complains, there is little incentive to actively comply. When enforcement is based on complaints, it creates an adversarial environment where the marginalized are somehow always to blame. If their disability is invisible, they have to explain it every time they enter a store, they may or may not get help. If denied there is no appeal process at the business level, and if the business doesn’t keep records, there is nothing for the Department of Justice to investigate. In my experience, the disabled only ask for the minimum change necessary so they have a chance, not to fully participate as mandated by the ADA, but just a chance to try and participate with less discomfort. It may not seem important to some, but these are often tipping-point requests.11 It can create fear of returning to the location and often they just avoid the business: they remain invisible, and no one knows. However, one needs basics like food and medical care. At those locations, they are at the mercy of the person they are talking to at the business, and that person’s experience, training, and bias can have a profound effect.12 It also can be a PTSD stressor that interferes with the person’s ability to think, causes them to hyperventilate or feel faint, and they are often humiliated. CONCLUSION In order to achieve the goals of the ADA, and of well-meaning companies, we can all benefit from practicing disability humility and trying not to judge, or impose our own beliefs, on someone else’s condition. More importantly, for the protection of the innocent disabled, companies should have a formal process to document customer accommodation requests (similar to how they treat employees). There should be records of how it was handled, and if denied inform the customer why in writing with instructions for a denial review procedure. This meets the four underpinnings of delegation of power: accurate record keeping, oversight, accountability, and due process.