Exceptions to ADA coverage
There are several areas that are often thought of as being subject to ADA, but which are, in fact, not covered. In most cases, that is simply because other laws apply, often with essentially equal effectiveness.
FEDERAL FACILITIES AND EMPLOYMENT: Here is a situation in which ADA does not apply, but individuals are well protected. What applies when dealing with the federal government is the Rehabilitation Act of 1973, which prohibits disability discrimination under any program or activity conducted by the federal government or the post office. The anti-discrimination provision, known as Section 504, also applies to activities substantially funded by the federal government. In many respects, Section 504 is the "father" of ADA, with the latter being an effort to extend the protections of Section 504 to a much larger variety of activities. (The very important case declaring that U.S. paper currency discriminates against blind individuals was decided under Section 504).
PUBLIC ELEMENTARY AND SECONDARY EDUCATION. Again, individuals with disabilities have significant protection in an educational setting, but not under ADA. In 1975, Congress passed a statute dealing with the education of pupils with special needs, which law is now called the Individuals With Disabilities Education Act (IDEA). Generally speaking, students with hearing issues are entitled to the aids and services necessary to succeed in a classroom setting. The outcomes under IDEA tend to be similar to the outcomes under ADA, which applies to private schools (but not to religious schools), but the procedures are considerably more complex.
In a rather troublesome early case under IDEA's predecessor laws, the U.S. Supreme Court determined that a deaf student was not entitled to a sign-language interpreter, because even though the student understood less than half of what the teacher was saying, the student's performance was still adequate to superior. Fortunately, that precedent, although honored in theory, has frequently been essentially ignored in practice, and schools have been directed to provide reasonably extensive services to students with hearing loss even if the students are performing well academically.
Colleges and universities are governed by ADA -- either the governmental entity or public-facility provisions, depending on whether the school is public or private -- and by Section 504 if the school receives federal funds.
PERMANENT HOUSING. While hotels are governed by ADA, permanent housing is not. What applies instead is the Federal Fair Housing Act. Like the ADA, the federal fair-housing laws prohibit discrimination against the disabled, but the crucial distinction is that the fair-housing laws define discrimination differently. Rather than requiring the facility to provide aids and services at its expense, the fair-housing laws require only that the owner permit a tenant to install aids and services at the tenant's expense. Moreover, the property owner can require a tenant to remove the aid and service upon vacating the property, and to pay for the cost of restoring the premises to its pre-modified condition.
The fair-housing laws impose very limited structural requirements on new construction, but those requirements are mostly designed to accommodate those who use wheelchairs, and do not address hearing loss in any way. It would seem that as a policy matter, landlords, who are required to install smoke alarms, should be required to install effective alarms for tenants with hearing losses. An effort is under way to pass such an ordinance in the City of Seattle, but at the moment, no such requirement exists.
AIR TRANSPORTATION.
Airports are covered by ADA, but air transportation is not. Rather, transportation is covered by the Air Carrier Access Act, as modified by the Airline Deregulation Act.
The combination has proved most unfortunate. Those laws don't allow individuals to vindicate their rights in court. Instead, we're left to complain to the federal Department of Transportation, which makes as well as enforces the rules.
Unfortunately, DOT has proved far friendlier to the airlines than to the consumers. DOT has, for example, rejected any requirement that in-flight entertainment systems on existing airplanes be modified to show captioned movies. In making that determination, DOT relied to a significant extent on a so-called cost-benefit analysis from the airlines showing that captioned in-flight movies wouldn't increase airline traffic in an amount equal to the cost. The potential benefit to those of us who already fly wasn't even considered.
To make matters worse, "air transporation" doesn't begin when you board the airplane -- rather, DOT regulations begin and ADA protections end when you pass through the security gates. DOT has rejected any requirement that announcements made at the gates be captioned. This is a particular problem at the SeaTac airport, because SeaTac does not have a central paging system -- all announcements for individual passengers are made by the airlines, and those are not subject to ADA requirements.
I do not believe the situation for air travelers with hearing loss is going to improve until either Congress acts to remedy the current situation, or we have a Secretary of Transportation whose orientation is more evenly balanced between the needs of the travelers and the needs and wishes of the airlines.
