Enforcing the Americans with Disabilities Act for the 'Invisibly Disabled': Not a Handout, Just a Hand

The Americans with Disabilities Act (ADA), enacted in 1990, made it illegal to discriminate against people on the basis of disability, reflecting a U.S. policy shift in the treatment of the disabled from welfare and paternalism to anti-discrimination and independence. Unlike other anti-discrimination laws, the ADA, through its ‘reasonable accommodations’ requirement, went beyond prohibiting discrimination and mandated alteration of societal structures that, however unintentionally, limit opportunities for people with disabilities. The reasonable accommodations requirement calls for modification of rules and practices, removal of architectural barriers, and provision of auxiliary aids and services if necessary to enable disabled individuals to participate in programs and services, unless such modifications create an undue burden for their provider. While the ADA has been a positive force in the U.S., its implementation to date has most effectively served people whose disabilities are visible and those who have communicative and comprehension abilities, leaving another large segment of the disability community — people with invisible disabilities such as mental illness, and intellectual and developmental disabilities (I/DDs), underserved. This is because the ADA only requires the provision of accommodations to people with known disabilities. Disabilities can only become known, of course, if they are readily apparent or are somehow communicated, such as through a request for accommodations. And since people with mental illness and I/DDs whose disabilities are not obvious also commonly lack communication abilities and an understanding of the world around them, they have been largely left behind by the ADA. One significant shortfall is in the access of those with mental illness and I/DDs to General Relief (GR), a public benefits program available in many states to supply the poorest of the poor with a minimal cash allowance for basic needs like food and shelter. GR is considered a system of last resort — a catch-all benefit for those who have been denied access to federal or other state benefits, yet each year, thousands of indigent invisibly disabled people — the most vulnerable in society — cannot obtain the subsistence benefits they desperately need because of bureaucratic barriers. People with mental illness and I/DDs have sensory processing difficulties that cause them to see, hear, smell, taste, and touch their surroundings differently and more intensely than neurotypical people or disabled people who are not cognitively affected, which means they can be overwhelmed by a mandatory in-person application process involving long wait times, a noisy and crowded environment, security guard pat-downs, and complicated paperwork that would be merely annoying or inconvenient for their neurotypical and visibly disabled peers. Requiring people with mental illness and I/DDs to endure these conditions is as much an impediment to their access to GR as would be demanding a wheelchair-bound person to use the stairs, yet because the essence of the impairment of the invisibly disabled remains misunderstood, their access continues to be denied. The ADA was not intended to create a hierarchy of people with disabilities, but its implementation under the current construct has led to greater protections for one population of disabled people to the neglect of another — those with mental illnesses and I/DDs. This is especially problematic, as the latter population is rapidly increasing in the U.S. While the under-identification of mentally ill and I/DD people and the lack of access they experience without relief from the ADA are chronic problems that exist in all states, this Article focuses on Los Angeles County, measured by the U.S. Housing and Urban Development Department to have the highest number of homeless people as of 2016. It is known that up to forty percent of L.A. County’s homeless suffer from a mental illness or I/DD; however, the County consistently identifies only eight percent of GR applicants as having mental illnesses or I/DDs that warrant special assistance. This Article investigates how the ADA, intended to protect all people with disabilities, has yet to be fully implemented for the protection of those with mental illness and I/DD, and proposes adjustments or more effective implementation to better achieve the original goal of facilitating access and promoting independence for the full range of people with disabilities.