Well-intentioned anti-discrimination legislation often results in costly and unnecessary litigation that does little to aid disabled people.
Scott Miller was surprised when he learned in June that his restaurant was in violation of the Americans with Disabilities Act (ADA). Having operated Seasons of Coeur d’Alene in western Idaho as general manager and executive chef for six years without any complaints, he has always believed his restaurant — which was built in 2011, three years after President George W. Bush signed the final revision of the ADA — is accommodating to his disabled customers. In fact, Miller’s three regular wheelchair-bound customers sit at tables that do not comply with the ADA, instead of those its agents compel business owners to install.
In the end, Miller will have to shell out only about $1,000 to comply with the requirement that he extend the length of his patio furniture. As ADA violations go, Miller is relatively lucky; other companies face much higher hurdles to comply with anti-discrimination legislation. One is Uber’s New York City division, which may have to undergo a complete overhaul of its vehicles to settle a legal battle over its compliance with city-level anti-discrimination law.
Last week, the ride-sharing company became a defendant in a class-action lawsuit accusing it of discrimination against disabled customers because only between 60 and 200 — the parties disagree on the number — of its cars in New York City are wheelchair-accessible. To quote the lawsuit, Uber’s violation is “a denial of full and equal enjoyment” of its services by “riders who require accessible transportation.” In other words, Uber does not provide the number of wheelchair-accessible cars that would allow the wheelchair-bound community to use the service at the same price, frequency, and quality as those who are not disabled. Disability Rights Advocates NYC (DRA), which filed the suit, accused Uber of “showing total disregard for the rights of people with disabilities” in a statement posted on their website. Peppered throughout the statement were allegations that Uber actively and knowingly discriminated against wheelchair-bound customers:
Uber could provide a great benefit to people with mobility disabilities, if it provided equal and non-discriminatory service. Instead, Uber, a company valued at over $50 billion, has chosen to neglect people with disabilities who use wheelchairs and to provide them with inferior service in direct violation of the law.
“UberWAV [Uber’s wheelchair-accessible offering] makes up only .1% of the 58,000 vehicle fleet. It’s just window dressing designed to skirt anti-discrimination laws,” said Michelle Caiola, Director of Litigation at DRA’s New York Office. “Uber must not be allowed to operate in New York City in a discriminatory manner. It must ensure its convenience and benefits are available to all people equally.”
Uber has offered wheelchair-accessible vehicles through its UberWAV program since August 2016, and for almost a year the company has been implementing demand-based incentive programs designed to increase the UberWAV fleet. While these programs haven’t been effective, DRA’s statement that Uber has “chosen to neglect people with disabilities” is untrue, and an example of how anti-discrimination laws have made the definition of “discrimination” more subjective. The law that DRA accuses Uber of breaking is the New York City Human Rights Law, which, like the ADA, considers discrimination to be any violation of its own provisions. Injured parties, therefore, can consider themselves discriminated against if the actor fails to do anything the law requires, with no consideration for whether the actor intended discrimination, can integrate the disabled, or actually discriminates against them. The Uber suit demonstrates how this type of law often mandates a solution that corrects the legal violation but leaves the problem intact. Traveling through the city is a challenging reality for disabled New Yorkers, but adding regulations to Uber isn’t the solution, because Uber isn’t the problem. In fact, the problem is the New York City government, which has responded to anti-discrimination laws with ill-designed and poorly maintained transportation systems for years. One of these systems, Access-a-Ride, satisfies the ADA’s “origin-to-destination” transportation mandate, which requires a service that can carry disabled riders from any starting location to any destination, but many disability advocacy groups argue that its long wait times, unreliable hailing system, and astronomical overhead cost leaves much to be desired.
Joe Rappaport, executive director of the Brooklyn Center for Independence of the Disabled (BCID), which is one of the plaintiffs that DRA’s attorneys are representing in the suit, discussed in an interview with National Review the troubles the disabled have when traveling throughout New York City. To be clear, Rappaport agrees with his fellow plaintiffs and the DRA that Uber needs to be overhauled and made fully accessible for all riders, but he also provided invaluable accounts of how badly the New York government, especially the Metropolitan Transportation Authority (MTA), has failed the disabled community.
Traveling through the city is a challenging reality for disabled New Yorkers, but adding regulations to Uber isn’t the solution, because Uber isn’t the problem.
BCID offers services for and advocates on behalf of the disabled living in Brooklyn, and most of their staff has a disability, though Rappaport does not. He often travels with his wheelchair-bound colleagues, however, and experiences their struggle with getting around New York City firsthand. When traveling from City Hall in Manhattan to BCID’s office in Brooklyn, for example, wheelchair-bound employees have four options: They can take Access-a-Ride; they can take a taxi if a wheelchair-enabled one is available; they can attempt to navigate the subway system, where only 85 of 493 stations are guaranteed to be wheelchair-accessible; or they can roll across the Brooklyn Bridge.
New York City mayor Bill de Blasio’s Office for People with Disabilities boasts in its 2017 accessibility report that “the City has made a concerted effort to ensure that all New Yorkers, including the more than 5.5 million people who use public transportation each day, are able to navigate the City.” Yet Rappaport and his co-workers have experienced a different side of the New York government, one that doesn’t seem to care whether they can make it to Broadway shows, restaurants, or jobs. In May 2017, a group of four New York City disability-rights organizations, including BCID, gathered outside the MTA headquarters to protest Access-a-Ride. A statement issued by the group recounts their efforts:
Holding signs saying, “MTA: Stop the Access-A-Ride Horror Show!” and “Think the subways are bad? Try Access-A-Ride!,” riders told stories of hours-long rides, lost jobs and missed appointments, and called on the MTA, Governor Cuomo and Mayor de Blasio to improve and reform the service.
In an August 2016 Wall Street Journal opinion article, Benjamin Parker points out that de Blasio’s failed attempt to block Uber from the city shows even more clearly his bias against the marginalized groups he claims to love:
Recently the mayor was forced to back down from one attempt to stop the growth of ride-hailing companies. But the man who styles himself as one of America’s most progressive politicians continues to side with the big, powerful but regulated cab companies and their predominantly white, wealthy Manhattan customers — instead of with the riders in the outer boroughs, underserved minority communities and the little guy giving the protected yellow cabs a run for their money.
The disabled community is one of those minority communities: Even if they live in swanky Midtown apartments, traveling the sidewalks can be a challenge. Rappaport explained that curb cuts are rarely well-maintained, and wheelchairs have trouble navigating potholes or construction along their routes.
New York City has more of a responsibility to address these problems than Uber does. Uber shouldn’t be blamed for or expected to remedy the lack of disabled transportation opportunities, because it wasn’t created to do so. The only justification for an overhaul of Uber is that it violates anti-discrimination laws, which points to another issue with the way these laws attempt to solve problems.
Third-party studies of call-and-ride transportation organizations have found that the solution the ADA and NYCHRL propose, complete overhauls of existing service models to meet legal and technical requirements, does not solve the problem of how to ensure affordable, reliable, and quality service for the disabled. One such report, from Schaller Consulting Group, titled “Unfinished Business: A Blueprint for Uber, Lyft and Taxi Regulation,” had this to say about the solution these laws mandate:
A survey on how taxis are used in paratransit programs mandated under the Americans for Disabilities Act (ADA) found that there was “large variation in service quality among drivers and inability to control independent contractors, with ADA riders not being picked up if a ‘better ride’ is available.” The National Council on Disability dryly noted that, “In some locations, a variety of obstacles [to accessible service being available] remain even if taxis that are structurally accessible have been acquired.”
The Schaller Group recommends that “trips should be served by companies that are determined to be qualified to do so, based on companies and drivers having the commitment and resources to effectively provide accessible service.” In other words, compelling corporations to meet standards that theoretically improve disabled access rarely improves access appreciably. It seems that a private ride-sharing company establishing a disabled-only ride system would address the problem more readily than adjusting the practices of companies that already exist. History has shown that, if the courts apply the ADA and NYHRL’s standard solution, the result will likely be a legal headache and another subpar system. One of the reasons the ADA and laws like it fail to solve problems is their vagueness and sweeping generalities. As anti-discrimination laws would interpret it, Uber’s role in society is not primarily to provide a mode of transportation but to ensure that all users have the same experience. This disturbingly Marxist maxim brings us back to Miller, who recalled his ADA inspector using that exact language: His patio furniture’s not being long enough meant that he was denying his would-be disabled customers the “same experience” as all other customers.
Statutes designed to protect the disabled from discrimination have good intentions: They are the offspring of civil-rights legislation aimed at eliminating Jim Crow–style laws that actively exclude a group from partaking in a publicly offered service. But these laws have serious problems, especially when they ignore the practical impossibilities or absurd financial costs that accompany total inclusion. Furthermore, the wide power of the ADA empowers groups and individuals to attempt to solve theoretical problems where none may exist, often ignoring better solutions — such as a functional dedicated disabled transport system — in the process.
Consider the case of the town of Julian, Calif., whose business owners have since 2005 lived in fear of a lawyer named Theodore Pinnock, whose broad accusations that the town’s small businesses discriminated against their disabled residents were correct according to the ADA but ignored the real experiences of Julian’s disabled community. In a 2013 article for The American Interest, Mario Loyola and Richard Epstein, who both also contribute to National Review, described the residents’ confusion at the volume and cost of the required changes:
Little Julian got busy giving its gold-rush-era storefronts a massive architectural makeover in keeping with Justice Department dictates, spending buckets of money and destroying buckets of quaintness and appeal in the process. Many of Julian’s mom-and-pop storeowners were stunned by Pinnock’s flurry of demand letters. Harry Horner, owner of a pizza parlor who later testified to Congress on the abuses of the ADA, said that Julian’s businesses had long served customers in wheelchairs: “They seem to be accommodated and there’s never even been a complaint.”
And this is perhaps the law’s biggest flaw: No matter how accessible your business is to actual disabled people, if it fails to accommodate the hypothetical disabled person created by the ADA, you must make changes. This allows outside advocacy groups and individuals to act on behalf of the disabled community whether or not they are experiencing actual discrimination. It also allows the New York government to achieve ADA-approved accessibility with services like Access-a-Ride that fail to accomplish the spirit of the law. The failures of such officially compliant services leave private businesses even more vulnerable to charges that they are not adequately addressing the still unmet needs of the disabled community. DRA hints at this dynamic in their lawsuit when describing one of the plaintiffs’ experiences: “Public transit options are limited in [plaintiff’s] neighborhood, and she is unable to rely on Access-a-Ride when she does not have sufficient advance notice to reserve an Access-a-Ride trip or enough time for its erratic routing.”
Ultimately, were the ADA and other laws like it built to address problems and find solutions instead of to enforce code, Miller might have saved a redecorating headache, the town of Julian might still have its charm, and the New York disabled community might have long since been served by adequate transportation.
READ MORE:
Is it Possible to Regulate Uber?
Uber Takes Eric Holder’s Bad Advice
Uber vs. the Second-Rate Cities
— Philip DeVoe is a Collegiate Network Fellow at National Review.