Host: Welcome to Independent Perspective In-Depth, a program presented in the public interest by the Western New York Independent Living (WNYIL) family of agencies, courtesy of the Night Frontier Radio Reading Service (NFRRS). Using this long format, we will be exploring the broader issues affecting the community of people with disabilities in discussions with knowledgeable individuals from a variety of organizations and backgrounds.
We are delighted to have as our guest for today, Todd Vaarwerk, chief policy officer of WNYIL. I'm your host Ernie Churchwell. Welcome to the program, Todd.
Guest: Always a pleasure to be here.
Host: And we're glad to have you. Chances are that anyone listening to us has heard of the Americans with Disabilities Act, or as we like to call it, ADA. However, it's much less likely that you know how relatively recent it is, what kind of effort it took to put it in place, and how limited protections for people with disabilities were before it came about. Well, unless you're an old timer like us. Oh Todd, do I hear you saying I should speak for myself?
Guest: No, no, no, you don't. You don't hear me saying that at all when you're talking about educating people about the ADA. It's very important that people recognize the outgrowth from which it came and the level of advocacy it took to get it to where it was. And hopefully we can talk about some of those issues today.
Host: Terrific. Although there were some nods to people with disabilities previous to this, I guess the first time that it really became notable that the government was supporting people with disabilities and their particular needs happened around the time of the World Wars. Earlier in the 20th century. What can you tell us about that?
Guest: Well, some really interesting things come out of that discussion because the broader sense of when the disability rights movement started is after the Second World War. But what I find really amusing is a lot of people talk to us about people like Helen Keller being involved in disability privacy for the first time because of soldiers being blinded by mustard gas in the First World War.
Now every movement starts with those people that break the glass ceiling. So, I recognized that that is one of those examples, right? And we talk about the broader effort after the Second World War to start to deal with not disabilities as a population, but a specific subset of them specifically veterans, people who gave their last full measure of devotion to serving the country in a war. For that, we've got to thank our friend Mary Switzer. Mary Switzer was one of the forerunners who created the Veterans Vocational Rehabilitation program as part of the GI Bill. And that's where that conversation about the Second World War kind of gets started because people with disabilities at that point, then start to look at it and say, well, if they can do it for the vets, what about the rest of us?
Host: Speaking of the broader population of people with disabilities, from the 1960s through the 1980s, there were a variety of piece meal laws intended to protect people with disabilities in some narrowly defined areas, including but not limited to equal education, fair housing, airplane travel, voter registration, and so on.
Guest: All of this being a forerunner to the ADA, and it starts with a law called the Architectural Barriers Act of 1960. Which basically says if you're using federal money to build a building, people with disabilities need to be able to get access to get inside. A very simple thing, and when you contrast that against all of the other things that were happening in the late 60s, right, we had the Civil Rights Act, people with disabilities were not added as a member of the Civil Rights Act until the 80s.
We had the Fair Housing Act. People with disabilities weren't identified as a group needing protection for fair housing until the 80s in the late 60s. What we got was this little thing about building and making sure people with disabilities needed to get in them.
But of movements are small steps made, and this is kind of the first one. Because then that leads us not even five years later to that next question. Well, OK, now we can get into the building. But what about the programs that are run out of those buildings? Once we get in the buildings? How are we getting benefits from federal programs?
Out of that comes the argument of the Rehabilitation Act of 1973, specifically section 504 which states that no person, by virtue of their handicapping condition, shall be denied the benefits of any program receiving federal financial assistance. That's exactly what section 504 says. It's a really short paragraph but it had a change in the way we discussed how that was going to be implemented. A little secret for our viewers, right?
Laws are only the first part of where we get our rights from. Because everybody remembers Schoolhouse Rock when they were a kid. I'm just the bill, right?
Guest: So what happens after they sign a bill and it becomes a law? There's, you know, in the cartoon there's some fireworks, the screen goes black, and we never hear anything. The secret is laws then go to regulators. Every federal law is assigned an executive department to administer its sections. Or portions of laws are assigned to executive departments to administer them, and they have to write regulations.
In this particular case, the Department of Health and Human Services was selected to develop regulations and let's remember the rehab act was not, it didn't have broad bipartisan support when they passed it. President Nixon vetoed it at least twice and finally signed it partially because I think if you look at the timelines, I think you might have needed some positive press because of a, I don't know, a small break in in a Washington hotel somewhere.
Host: Does the name Watergate come to mind?
Guest: Yeah, that's right. For all our viewers, that's how all of our political scandals have the words gate on the end of them. So, he signs the law but he's worried that it's going to bankrupt the government. It's going to cost too much money.
Now he's not there for too much longer, a matter of months. And then he's replaced with a guy, President Ford, who is his vice president. So that guy's just going to continue what President Nixon would have wanted.
But he gets tossed out of office in the election in 1976, where the party changes. We get President Carter. Now, President Carter is also worried about how expensive this is going to be, and he's got a problem because another secret for our viewers is that unless otherwise specified, laws that are passed by the federal government expire or sunset after five years. So, when we signed the Rehabilitation Act of 1973 into law. What year was it? It's a trick question.
Host: Not in 1973, I'm guessing.
Guest: No 1973, but five years later would make it.
Guest: ‘78 right smack dab in the middle of President Carter's term of office. Now it's five years we don't have regs yet. Because presidents are saying it's too expensive. So, what does President Carter do? Well, let's find something that we can give the disability community that we can write regulations on, and yeah, it'll give us some breathing room to figure out how to do the rest of them.
So, when the Rehab Act is renewed in ‘78, some sections are added to it. And for viewers of our program, we should let you know that one of those sections was the Independent Living Provisions that are in federal law, along with the National Institute on Disability and Rehabilitation Research were added in the Rehab Act amendments in 1978. But this doesn't actually work very well in a group of people with disabilities. They're mad because there should be some movement. There should be regulations so that this Rehab Act has teeth.
So, what happens is after Carter loses office and in comes Ronald Reagan, in his first term there is a set of national protests, ideally set up, one in each federal region. The government is divided into 10 federal regions.
Guest: For most of us, listening to this broadcast, we are in Federal Region 2, New York, New Jersey, Puerto Rico and the Virgin Islands. But if you're listening to this podcast from another area of the country, your mileage may differ. What we care about, though, out of all of those protests, is the one in Region 9 which is located in San Francisco, CA.
And what we have are a group of national advocates who take over the Office of Health and Human Services for 27 days.
Host: Hmm, that's a lot of days to have a bunch of wheelchair people and white cane people and whatnot in your corridors in it.
Guest: Right, OK. Single longest takeover of federal property in peaceful protest, you know, not counting the guys that ride their horses on grazing land and say you can't kick us off, do you? No, we're talking about these people taking over an office building. This becomes a thing. This is a nationally televised thing that's on the news every night, the Black Panthers are bringing in food and bedding and medicine, right? They're communicating with people. They have deaf people communicating through the windows to interpreters on the ground because they're turning off power and phones.
This becomes a thing that is finally settled 27 days later by Califano, the appointed Secretary for Health and Human Services under Reagan, finally agreeing to review and sign regulations for the Rehab Act.
And what comes from that is we become the cause celeb. Because imagine not having a 24-hour news cycle. This isn't like it is today with CNN and Fox News and MSNBC, covering whatever portion of the protests.
This is back in the 80s where you know, it's the CBS News with Cronkite. Right. ABC with Harry Reisner. Right. This will tell you how old I am right?
And this is happening at your 6:30 news every night for almost a month. So, what comes out of that is that we become the cause celeb. And in the 80s we get a bunch of things done. Because they've now seen how far the national disability community is prepared to go to get some stuff that they need. So, things that happen in the in the 80s, we are added as an interest group in the Civil Rights Act.
We are added as an interest group in the Fair Housing Act. The Fair Housing Amendments Act 1988. There is a bill written for us that allows us free access to air travel, not free access to air travel, but access to air travel cause it used to be if your disability was too difficult for the airline to handle, they could deny you your ability to get on a plane. The Air Carrier Access Act of 1988 and it's out of these activities that our work with the ADA begins.
Host: If you've just joined our program, you're listening to Independent Perspective In-Depth, a program presented in the public interest by WNYIL. Our guest today is Todd Vaarwerk, chief policy officer of WNYIL. We'll continue exploring the impressive work of this comprehensive legislation, the Americans with Disabilities Act.
If you can pick up on your previous thought.
Guest: Well, as we kind of laid the groundwork before the break, historically where we need to be I think now is a great time to start talking about the ADA itself.
Now the ADA, as it happens with all major pieces of legislation, it's got a lot of stories surrounding it and a lot of people involved in those stories. But as I understand it, we're going to be talking about titles in depth and later episodes of Independent Perspective.
So, I think there's going to be plenty of time to get into some of those stories. But the thing we want people to recognize is that it came kind of in two segments.
The first segment kind of started out as the primary goal being getting people with disabilities jobs. Because that particular thing matched with a bunch of other national priorities at the time that the law was being discussed and policymakers had made a had made a lot of strides in the things that they talked about in title one employment, which we're going to get to in our next episode.
Guest: What they discovered when they went to do hearings, because my history tells me that when a politician does something right, the first thing he's going to reach for is a microphone when a group of politicians do something correct. The first thing they're going to do is have a hearing about it. Because they want people to know what it is that they've done and how much work that they've done on this particular thing.
So, there were comments about the ADA and comments about the plight of people with disabilities and isn't this going, you know, isn't helping us get jobs? Isn't this going to make it better for us?
Well, what they discovered was they still had a lot of work to do. Because they were asked questions like if there isn't an accessible way for us to get to our jobs, how long do you think we're going to keep it?
If there aren't accessible places to spend our money what would the purpose of that be? So, the ADA then gets retooled to handle the things that come out of the comments from the hearings, and this is the Title V Civil Rights. Kind of record-breaking law that we're talking about, right? Or this paradigm shifting law that we're talking about? The most comprehensive legislation affecting the rights of people with disabilities in American history, wouldn't you say. And probably also probably world history.
Now we're talking about a law that has five titles. Title I being employment. Title II being public entities, Title III being places of public accommodation. Title IV being communication. And Title V being miscellaneous provisions.
Host: And just to to explain to people who for whom the terminology is a little strange when they say places of public accommodation, you essentially mean any business, whether it be stores or theaters or hotels. In case people aren't familiar with the term places of public accommodation, that essentially includes all businesses that do business, whether it be stores, restaurants, theaters, hotels or whatnot, but places that do business and can have people with disabilities as customers.
Guest: Correct. Just like public entities refers to state and local government and not places like the Thruway Authority.
Host: Right. And the federal is already covered by the Rehab Act.
Guest: Right. And as I would explain to anybody who came to one of my ADA trainings, we would start the same way. We'd start about who's covered under the act and who isn't.
Host: Right. Makes sense.
Guest: There are three ways to get covered under the Americans Disabilities Act. Think of them like prongs on a fork, right? There's three of them. If you can get one of them to stick you, you've probably got coverage under the ADA.
The first is to possess have a substantial impairment in a major life activity. Uh, sounds pretty complicated. What's the substantial impairment and major life activity?
I tend to think of it like, think about the first five things you did when you get up this morning, you're almost positive going to come across most of the major life activities, seeing, hearing, thinking, emoting, moving, standing, lifting, working.
Guest: Yeah, most of our major verbs, right?
Daily activities. So, the first is to have a substantial impairment in a major life activity.
The second one is to have a record of a substantial impairment, even if it doesn't exist now. And the reason we did that was because part of those hearings we were talking about, we would hear stories of people who had medical conditions for which they were treated. And that problems resolve themselves, but because records of those things existed. They weren't trusted when they later applied for jobs.
Someone went to cancer treatment and the cancer went into remission. But ten years later, they applied for a job at a bank. Right. And back then, you had to provide medical information to get insured potentially by your employer. And in providing the medical information, they discovered that this person has had cancer treatment. And oh my God, what if the cancer comes back? You know, are you going to be able to, you know, continue to to do the job? Are you going to be a long-term employee? So, there were a bunch of folks who lost jobs for reasons like that.
So, one of the reasons why ADA eligibility covers record even if the condition doesn't exist anymore.
Now the third prong. It's kind of hard to understand, but the best way I can come about it to folks is if they treat you like you have a disability even if you don't. And they discriminate against you on the basis of that treatment. You'll get ADA coverage for the discrimination you suffered because of that treatment. Ah, alright, it's basically kind of a no stereotyping rule, right? They shouldn't necessarily make assumptions and then discriminate against you based on the assumptions you make.
Now those are the three ways that you get coverage.
Now, there are some areas of life that the ADA doesn't cover.
Specifically, three of them. One of them just to get it out of the way, private clubs with substantial membership application processes are exempted. So, we're talking about places like the Daughters of the American Revolution. Or some of your really complex local historical associations. In Buffalo, we have a place called the Saturn Club. Those folks aren't subject to the ADA, but we're not talking about groups like the Kiwanis or the Lions or the Rotary. Which anybody can join if they meet their membership criteria.
The second area well, it's basically simple. It is churches. We have separation of church and state. So religious institutions aren't subject to the Americans Disabilities Act. It used to be that that would be the end of that statement and I would move to the next, but because of some political work in the early 2000s. If a religious institution has a federal contract to provide a service, they would still have to be accessible under the Rehabilitation Act of 1973, which covers federal contractors.
And then the last involves Native Americans. Nothing that's owned by a recognized Native American tribe or on Native American land is subject to ADA enforcement.
Now for a lot of our local listeners, you'll probably be asking yourself, but you know what about the smoke shops? What about the casinos? Get those calls all the time. I need to complain because the casino's not accessible and they didn't make my favorite slot. They didn't remove or add the seat in front of my favorite slot machine.
Sorry guys, it's deliberately in the ADA that if it's on Native American land or owned by our recognized tribe, it's not covered. Now, some Native American tribes may have disability rights laws of their own that apply. We know that that's true in upstate New York. But the ADA doesn't apply.
Host: So, people on the reservation with disabilities are covered one way or the other, then.
That's where I would start. I would kind of end our general overview just because we want to talk about each title specifically and give all of it kind of the examination it richly deserves.
So, do you do you want to do a, you know, up on our next episode or are we good today?
Host: Well, I think it probably doesn't hurt to tantalize people a little bit and show that just how much we're willing to give them vital information, even if it becomes this longer format lets us do that.
Guest: Remember that the primary focus of the ADA was about disability employment, which is why Title I is employment. And Title I talks about the complicated relationship of people with disabilities being successful employment. This is one of the things that was hard won in terms of negotiations, especially with regard to small business. So Title I, we're going to be talking about those things that are going to encourage people with disabilities to take the risk to work.
Public entities. We're going to talk about how they do it with state and local government. Places of public accommodation. We're going to talk about those ADA accessibility standards. Folks want to know how steep a ramp, how steep is too steep? We'll tell you.
Host: Because that's the kind of guys we are.
Guest: And then. That's right. And then we get to miscellaneous provisions. Some of which are as is true with every major law in the federal government, some of which are kind of downright odd.
Host: And some make very good sense, like the whistleblower provision.
Guest: Correct or and the anti-retaliation provision. But you know there's even more than that, at least in Title V.
Host: That sounds better.
Alrighty. Well, I guess we'll just leave it that way so that our listeners can be tantalized for what they'll learn the next time you come around here.
Thanks so much for being with us and sharing your incredible knowledge with our listeners.
Guest: It was great to be here.
Host: You've been listening to Independent Perspective In-Depth, a program presented in the public interest by WNYIL family of agencies, courtesy of the NFRRS. Our guest today was Todd Vaarwerk, chief policy officer of WNYIL.
This program features the song, A Little Ditty on the Dance Floor by Jay Lang, available under a Creative Commons Attribution noncommercial license. I've been your host, Ernest Churchwell. If you wish to hear this program again a couple days after the on-air broadcast, you can find a podcast on the NFRRS web page, nfradioreading.org on the Programming tab under bonus programs and also on www.wnyil.org/Public-Relations/Podcasts. Have a good week and be safe.