Reprinted from American Libraries, this article by Michael Gunde discusses some of the legal facets of providing library access to patrons with disabilities. The Americans with Disabilities Act has made many librarians aware of a group of people who libraries have failed to serve. Some see the Americans with Disabilities Act as a newly imposed burden and seek only to find how to fulfill its minimum requirements with as little effort and cost as possible. Others see it as an exciting challenge to include entirely new populations of patrons into their service. What the law means and how to apply it is still in flux. Many specific items will only be defined through case law. In order to avoid the expense and unpleasant publicity of legal action, this article suggests that a pro-active policy can keep a library out of court and at the same time provide the satisfaction of giving meaningful access to previously under-served library users.
by Michael G. Gunde
Reprinted from American Libraries, September 1991.
To establish a clear and comprehensive prohibition of discrimination on the basis of disability, President George Bush signed the Americans with Disabilities Act (ADA) into law on July 26, 1990. Also cited as Public Law 101-336, the ADA is considered by many to be the most significant civil rights legislation passed by the federal government since the Civil Rights Act of 1964. The ADA promises to reshape virtually every aspect of our society by making discrimination against Americans with disabilities illegal in both the public and private sectors. So far, the library profession has been slow to respond to the enactment of this legislation, portions of which become effective Jan. 26, 1992. There have been a few initiatives, among them an "ADA and Libraries" information brochure from ALA's Association of Specialized and Cooperative Library Agencies (ASCLA); a program at ALA Annual Conference in Atlanta sponsored by ASCLA's Decade of the Disabled Committee; and, for ALA's 1992 San Francisco conference, both an ASCLA pre-conference and a program sponsored by its Blind and Physically Handicapped Forum. But these noble efforts will likely be too little, too late. Access for all. Intellectual freedom. Balanced collections. Literacy. The freedom to read. As a profession, we embrace these ideas and presume to lecture others on their importance, while systematically denying full and equal library services to tens of millions of Americans with disabilities who need -- and pay taxes and fees to support -- our elitist institutions. Hypocrisy has, perhaps, never been taken to such lofty heights as by the library profession, which officially preaches outreach but more often practices exclusion. Some librarians apparently believe that the services they provide to patrons with disabilities are already sufficient, while others seem to be keeping their fingers crossed in the hope that the final federal regulations to enforce the ADA do not require that libraries offer full participation for people with disabilities. Librarians in both groups are mistaken, and the library profession may pay dearly in the future for the delays of the present. Because the needs of each individual with a disability will differ, the ADA's overarching principle is that accommodation decisions must be made on a case-by-case basis and that its own regulations are merely "parameters to serve as guidelines in such inquiries" [Federal Register, vol. 56, p. 35726]. For this reason, librarians cannot compile a universal checklist of all actions required of them to comply with the ADA. Only through reading the act and the regulations can librarians determine their complete responsibilities under the law.
We can at least begin by summarizing the portions of the ADA that will directly impact American libraries. Section 2 of the ADA, "Findings and Purposes," reflects the results of congressional investigations and will likely be an important segment for judges who must interpret the intent of the legislation in deciding the unavoidable court cases it will precipitate. The ADA begins by pointing out that "some 43,000,000 Americans have one or more physical or mental disabilities, and this number is increasing as the population as a whole is growing older" [section 2(a) (1)]. Most librarians probably do not realize that nearly 20% of their potential clientele have a disability. The ADA categorizes discrimination against individuals with disabilities as "a serious and pervasive social problem" [section 2(a) (2)], and acknowledges that discrimination "persists in such critical areas as employment...public accommodations, education...communication... recreation...and access to public services" [section 2(a) (3)]. Congress also finds that "individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities" [section 2(a) (5)]. Furthermore, Congress asserts that "individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the...ability...to participate in and contribute to society" [section 2(a) (7)]. Finally, Congress declares that "the Nation's proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals" [section 2(a) (8)]. To clarify the goals of the federal government in establishing the ADA, Congress specifically enumerates the purposes of this landmark legislation: 1. to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities; 2. to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities; 3. to ensure that the Federal Government plays a central role in enforcing the standards established in this Act on behalf of individuals with disabilities; and 4. to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day to day by people with disabilities [section 2(b) (1-4)]. Thus, in the summer of 1990 the government of the nation created of, by, and for the people finally decided that it was time to begin reversing the shameful history of discrimination against citizens with disabilities that had been compiled until then. The regulations designed to carry out titles I, II, and III were published in the July 26 Federal Register [vol. 56, p. 35408-35753].
Title I of the ADA outlaws employment discrimination--and does so with great clarity--by simply stating that employers shall not "discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment" [section 102 (a)]. Since the Rehabilitation Act of 1973 has already prohibited discrimination on the basis of disability by entities receiving federal financial assistance, the federal government, corporations wholly owned by the U.S. government, and Native American tribes are exempted from complying with the ADA. Also excluded are tax-exempt private membership clubs other than labor organizations [section 101 (5) (B)]. As of July 26, 1992, ADA coverage applies to all private employers of 25 or more people, and extends to all private employers of 15 or more people two years later [section 101(5) (A) and section 108]. Note, however, that all public entities, regardless of staff size, must end discrimination in employment against people with disabilities by Jan. 26, 1992 [Federal Register, vol. 56, p. 35719]. As important as the right to equal employment opportunity is to people with disabilities--and as obviously vital as it is to social progress--title I is not the portion of the ADA that will most profoundly impact library services. In my assessment, titles II and III of the ADA will prove the most problematic for American libraries, and will dramatically alter, for the better, the manner in which libraries in this country operate. Such changes are, in library terms, long overdue. Titles II of the ADA applies to public services and covers all public entities, defined as all state and local governments and their departments, agencies, special- purpose districts, and other instrumentalities [section 201(1)]. Because most public libraries are departments of local government, their branches are instrumentalities. Therefore, title II applies to nearly all American public, academic, and school libraries not covered elsewhere in the legislation. It is difficult to imagine the decibel level, had it been audible, of the collective sigh of relief uttered by 43 million Americans with disabilities when the federal government declared at long last that "no individuals with a disability shall, by reason of such disability, be excluded from participation or denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity" [section 202]. Who is a "qualified individual" with a disability? Anyone who "meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity [section 201(2)]. For libraries that receive state or local public funds, this means that any resident, student or otherwise eligible patron with a disability must be able to receive and benefit from all services available from their library. So, if a library provides the service of book circulation, it must provide an appropriate selection of books in formats that are usable by readers with print disabilities: large print, audiobooks, talking books, and Braille materials, among other special formats and/or equipment. If a library offers videocassette loans, its collection must include closed- captioned videos. If a library has a telephone reference service, it must provide effective telecommunications for people with hearing disabilities. Also, libraries will need to remove barriers that prevent or impede access to facilities by individuals with mobility restrictions. Unless the removal constitutes an undue hardship (i.e., a modification requiring "significant difficulty or expense," [section 101(10)]), architectural barriers need not be removed until new construction or major alternations occur. If removing barriers from an existing facility (i.e., instrumentality) constitutes an undue hardship, the programs, activities, and services offered at that site must be made readily available by other means to people with disabilities. To determine whether an accommodation constitutes an undue hardship, factors to consider include the nature and cost of the modification, the overall financial resources of the entity, and the number of persons employed by the entity.
It is important to think of title II as having two "prongs." The first addresses the failure of public entities to provide people with disabilities the opportunity to participate in, or to benefit from, their services. The second "prong" forbids public entities from discriminating against an individual with a disability. Librarians who wish to determine their responsibilities under the ADA would be wise to remember that, when civil rights rulings on discrimination cases occur, they usually incorporate the concepts of "fairness" or "appropriateness." To illustrate the importance of this point, suppose that the Progressive Public Library (PPL) has 1,000 videocassettes available for circulation. Two of these are close-captioned. PPL may be able to claim that it does not deny patrons who are deaf the "benefit" of its video collection, but does the PPL discriminate against the deaf in the provision of video circulation services? Is one closed-captioned video per 500 a fair or appropriate ratio for collection development? Why are the funds provided to PPL by taxpayers -- including taxpayers who are deaf -- being used to purchase non- captioned videocassettes if the same titles are available with captioning at the same, or nearly the same, cost? Let us further suppose that PPL has a system-wide budget of $1 million. Of the $250,000 allotted to materials acquisition, nearly $10,000 is devoted to buying special format items, such as large-print materials, audiobooks, and closed-captioned videos. PPL expends an additional $10,000 for special equipment designed for use by patrons with disabilities. Of course, there is a cost for staff time devoted to selecting, ordering, processing, and circulating these materials. Certainly, patrons with disabilities also "benefit" from some other general expenses, such as the salary of PPL's director (who is currently attending a public relations seminar in Honolulu) and the rental fees for the library photocopier (which, alas, lacks blow-up capability), as well as other expenses too numerous to mention. But is it appropriate for PPL to commit only 8% or so of its materials budget to programs serving 1-out-of-5 potential with a disability? Does PPL comply with Section 202 of the ADA?
For now, the answers to these questions, and a laundry list of others raised by section 202, must come from library professionals based on input from current and potential users who have a disability. The regulations the U.S. Attorney General promulgated July 26 provide additional guidance for library program development, but they do not delve into the minutiae of librarianship. Rather, the regulations imply answers to questions such as "Must the automated library catalog be made accessible through voice and Braille input/output?" and "Must a sign language interpreter be available for all library programs?" In all likelihood, many questions will ultimately be decided by the courts. For example, the ADA Accessibility Guidelines require that library card catalogs not exceed a height of 54 inches, and recommend 48 inches as the preferred maximum height [Federal Register, vol. 56, p. 35521]. However, the card catalog is certainly more than a building fixture or piece of furniture; it is also a "service" and therefore must be made usable by people with disabilities; including those with visual impairments. While card catalogs are essentially inaccessible to blind people, on- line public access catalogs can be made usable if equipped with Braille/voice input/output technology. In any case, all public entities must be in compliance with the provisions of title II by Jan. 26, 1992, with or without the receipt of prior technical assistance or additional funding. The Department of Justice regulations require that every public entity evaluate its current policies and practices to identify and correct any that are not consistent with the ADA, and stipulate that every public entity "shall provide an opportunity to interested persons, including individuals with disabilities or organizations representing individuals with disabilities, to participate in the self-evaluation process by submitting comments" [Federal Register, vol. 56, p. 35718]. In addition, each "public entity that employs 50 or more persons shall designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities...including any investigation of any complaint alleging its non-compliance with this part or alleging any actions that would be prohibited by this part" [Federal Register, vol. 56, p. 35718]. Title III of the ADA addresses discrimination against individuals with disabilities by private entities, including a spectrum of public accommodations ranging from bowling alleys to funeral parlors. It specifically extends the coverage of ADA anti-discrimination provisions to non-government- funded schools, colleges, and any "museum, library, gallery, or other place of public display or collection" [section 301(7) (H)]. Title III flatly states that "no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodation of any person who owns, leases...or operates a place of public accommodation" [section 302(a)].
Specific prohibitions also covered in title III include: the use of "eligibility criteria that screen out or tend to screen out an individual with a disability...from fully and equally enjoying any goods, services, facilities...unless such criteria can be shown to be necessary for the provision of...services;" the "failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford...services...to individuals with disabilities, unless the entity can demonstrate that such modifications would fundamentally alter the nature of...services;" the "failure to take such steps as may be necessary to ensure that no individual is excluded, denied services, segregated, or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the...service...or would result in an undue burden;" and the "failure to remove architectural barriers, and communication barriers that are structural in nature, in existing facilities...where such removal is readily achievable" [section 302(b) (2) (A)]. The ADA defines a "readily achievable" act as one that is "easily accomplishable and able to be carried out without much difficulty or expense" [section 301(9)]. The requirements of section 302 become effective Jan. 26, 1992, but complainants may not bring civil actions against covered entities with 25 or fewer employees and have gross receipts of less than $1 million for the first six months and against those with 10 or fewer employees and gross receipts of less than $500,000 for the first year [section 310]. One provision of title IV will be of interest to libraries that receive federal funds: Any television public service announcement that is produced or funded in whole or in part by any agency...of Federal Government shall include closed captioning of the verbal content" [section 711]. On April 26 the Architectural and Transportation Barriers Compliance Board issued minimum guidelines to ensure that building and facilities are accessible to individuals with disabilities in terms of architecture, design, and communication. These guidelines supplement the existing Minimum Guidelines and Requirements for Accessible Design [section 504(a) and (b)]. The supplemental guidelines include procedures and requirements for qualified historic buildings, including sites eligible for listing in the National Register of Historic Places [section 504(c)].
Essentially, these are the relevant portions of the ADA for libraries. And in my opinion, very few American libraries are likely to be in compliance with the requirements of the ADA when it becomes effective. At least some libraries face nearly certain litigation and the resulting public relations nightmare that inevitably ensues. Many citizens with disabilities will come to question the sincerity of our commitment to the professional principles that we so eloquently proclaim at our overcrowded conferences and in our bombastic Association resolutions. Libraries, of course, should have always provided equitable services to people with disabilities, if for no other reasons than that our own professional ethics require it, most library mission statements imply it, and to some extent, the fiscal health of our institutions depends upon it. Now federal law mandates that we end the history of purposeful unequal treatment to which people with disabilities have been subjected and in which, sadly, the library profession has written its own chapter. We cannot, unfortunately, rewrite our history. But we can immediately begin to correct the mistakes of the past and plan a new future for our libraries -- one that includes full service for all patrons with disabilities. If we fail, we will not only have further damaged our already tattered public image, we will have lessened the content of our professional character. In the end, we will have surrendered the last lifeline that connects our libraries to the reason for their existence -- the people.
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