by Peter Slatin
From the Editor: It is interesting and sometimes difficult to understand the background of our laws here in the United States, let alone comparing and contrasting them with laws in other countries. Our author does a good job of describing the history of laws here and in Canada, complete with their difference in emphasis and their pros and cons.
Peter is a consultant, writer, and disability advocate. He lives in New York City and is the founder of the Slatin Group created in 2012. He also serves as a board member of the Colorado Center for the Blind. A version of this article appeared in the September issue of Able News.
In late May I participated in “Accessible Canada, Accessible World,” (https://wecount.inclusivedesign.ca/initiatives/acaw/ ) a two-day conference in Montreal created by the International Design Resource Center at the Ontario College of Art & Design and sponsored by Accessibility Standards Canada, a federal agency tasked with developing what its name calls for. It was an extraordinary event, with most discussions held in a “flipped classroom” format: two people, in the somewhat interchangeable roles of facilitator and provocateur, guided attendees—most of whom were accessibility and disability scholars and advocates—in discussion while encouraging everyone present in person or virtually to contribute. Not surprisingly, the majority of attendees were Canadian, and the majority of discussions were framed around accessibility creation in Canada. I suddenly found myself outside of what I realized was my US-centric disability and accessibility comfort zone.
The ACAW event allowed me to see how the different approaches to enabling and optimizing disability inclusion of a nation that is our very close geographic and cultural neighbor can highlight both positives and negatives in our own journey toward full accessibility.
We pride ourselves here on having enshrined disability rights in law with the passage and signing of the Americans with Disabilities Act thirty-four years ago. Yet, in Canada the rights of people with disabilities are foundational: they are written into its 1982 Constitution. That’s as basic as it gets. Yet, against the backdrop of the long-running failure in the United States to pass the Equal Rights Amendment for women to our Constitution, it’s difficult to expect that an equivalent amendment guaranteeing equal rights to disabled people would get very far.
Even if it did, would it make it easier to increase the prevalence and quality of accommodations across society? If Canada’s history is any guide, apparently not much. So activists kept pushing, and thirty-seven years after the Constitution was adopted, the Accessible Canada Act (ACA) became law. The ACA, like the ADA, is a federal statute, but unlike the ADA, it seeks to regulate only federal entities and federally regulated business enterprises including banking, telecom, transportation, and federal services. In contrast, the ADA seeks to regulate private enterprise as well as government at the federal, state and local level, including education and employment. State laws offering stronger protections than the ADA override it, and vice versa.
Canada’s provinces, territories, and local governments are not under the ACA’s jurisdiction, although they can pass their own regulations. The strongest of these is the Accessibility for Ontarians with Disabilities Act (AODA), passed in 2005, which some provinces and territories have used as a partial template.
The development and passage of both the ADA and ACA were driven by activists, and each reflects a seemingly robust mechanism for embedding accessibility into their respective national landscapes. But that outcome is proving illusory. The ADA is overseen by the US Department of Justice. It’s not exactly written in stone, but—other than through litigation—there is no formalized process for reviewing, revising, and updating the statute.
The Canadian federal department, Accessibility Standards Canada, was created through the ACA and is a framework for collecting and reviewing input from stakeholders across the diverse disability community to design, set, and implement accessibility standards.
In simpler terms, the ADA is a reactive mechanism, permitting government to rely on the disappointment and anger of citizens at the ongoing failures of private and public-sector enterprises to acknowledge and act on the need for change. The ACA offers a proactive and collaborative approach to maintain a living legislative framework that theoretically gives citizens with disabilities the means to establish and strengthen the legislation.
Yet, in their enforcement mechanisms, these two approaches also reflect each nation’s disinterested attitude toward a full-throated embrace of accessibility. The ADA invites—insists on—litigation, guaranteeing the entrenchment of adversarial attitudes toward disability inclusion. For its part, the ACA kindly requests—and hopes—that everyone will do the right thing. While it includes a procedure for processing complaints and even for asking entities to respond and comply or face fines, the actual mechanisms for doing so are buried in time—a consuming and tedious bureaucracy, a less than robust formula for successful remediation.
Despite enormous effort on every front, and despite the plethora of regulation that has been enacted toward the creation of accessible societies, the movement continues to grind against the same basic entrenched barriers: public, business, and governmental indifference. Perhaps as the developed world ages and finds itself understanding accessibility as a personal need that might have something to do with how everyone else also functions, societal attitudes will recognize and accommodate to reality.