National Council on Disability
June 27, 2000

National Council on Disability
1331 F Street, NW, Suite 1050
Washington, DC 20004-1107

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This report is also available in alternative formats and on NCD's award-winning Web site (http://www.ncd.gov).

The views contained in the report do not necessarily represent those of the Administration, as this document has not been subjected to the A-19 Executive Branch review process.

Letter of Transmittal

June 27, 2000

The President
The White House
Washington, DC 20500

Dear Mr. President:

On behalf of the National Council on Disability (NCD), I am pleased to submit a report entitled Promises to Keep: A Decade of Federal Enforcement of the Americans with Disabilities Act. This report is the third in a series of independent analyses by NCD of federal enforcement of civil rights laws.

The series grew out of NCD's 1996 national policy summit, attended by more than 300 disability community leaders from diverse backgrounds, who called upon NCD to work with federal agencies to develop strategies for greater enforcement of existing disability civil rights laws. In March 1999, NCD produced its first report, Enforcing the Civil Rights of Air Travelers with Disabilities. The second report, Back to School on Civil Rights, on the enforcement of the Individuals with Disabilities Education Act, was issued in January 2000. The enforcement reports to follow in this series will be on the Fair Housing Amendments Act of 1988 and Section 504 of the Rehabilitation Act.

Promises to Keep looks at the Americans with Disabilities Act (ADA) enforcement activities from 1990 to 1999 of four key federal agencies: the Department of Justice, the Equal Employment Opportunity Commission, the Department of Transportation, and the Federal Communications Commission. NCD's findings reveal that while the Administration has consistently asserted its strong support for the civil rights of people with disabilities, the federal agencies charged with enforcement and policy development under ADA have, to varying degrees, been underfunded, overly cautious, reactive, and lacking any coherent and unifying national strategy. In addition, enforcement agencies have not consistently taken leadership roles in clarifying "frontier" or emergent issues.

This report provides a blueprint for addressing the shortcomings that have hindered ADA compliance and enforcement until now. NCD stands ready to work with our sister agencies and other stakeholders inside and outside the government to develop that strategy. Indeed, throughout the preparation of this report, federal agencies have shown great willingness to collaborate with NCD in advancing the broad and enlightened enforcement of ADA. We look to the next decade of enforcement with anticipation that the promises of ADA can and will be realized through the vision and dedicated efforts of those who believe that equality of opportunity creates liberty and justice for all.

Sincerely,

Marca Bristo
Chairperson

(The same letter of transmittal was sent to the President Pro Tempore of the U.S. Senate and the Speaker of the U.S. House of Representatives.)

NCD MEMBERS AND STAFF

Members

Marca Bristo, Chairperson
Kate Pew Wolters, First Vice Chairperson
Hughey Walker, Second Vice Chairperson
Yerker Andersson, Ph.D.
Dave N. Brown
John D. Kemp
Audrey McCrimon
Gina McDonald
Bonnie O'Day, Ph.D.
Lilliam Rangel-Diaz
Debra Robinson
Shirley W. Ryan
Michael B. Unhjem
Rae E. Unzicker
Ela Yazzie-King

Staff

Ethel D. Briggs, Executive Director
Jeffrey T. Rosen, General Counsel and Director of Policy
Mark S. Quigley, Public Affairs Specialist
Kathleen A. Blank, Attorney/Program Specialist
Geraldine Drake Hawkins, Ph.D., Program Specialist
Martin Gould, Ed.D., Research Specialist
Susan Madison, Fellow
Pamela O'Leary, Interpreter
Allan W. Holland, Accountant
Brenda Bratton, Executive Secretary
Stacey S. Brown, Staff Assistant
Carla Nelson, Office Assistant

TABLE OF CONTENTS

ACKNOWLEDGMENTS

"UNEQUAL PROTECTION UNDER LAW" SERIES

EXECUTIVE SUMMARY

1. INTRODUCTION

1.1 Background
1.2 Purpose of the Report
1.3 Scope of the Report
1.4 Research Approach
1.5 Report Structure
1.6 Brief History and Context of the Americans with Disabilities Act
1.7 Structure, Organization, and Enforcement Authority of ADA
1.8 Elements of Civil Rights Enforcement

2. DEPARTMENT OF JUSTICE

2.1 Organization and Structure
2.2 Regulatory Activities and Policy Development
2.3 Complaint Processing
2.4 Compliance Monitoring
2.5 Litigation
2.6 DRS Litigation Record
2.7 Staff and Mediator Training
2.8 Technical Assistance
2.9 Media Contact
2.10 Policy Positions and Leadership
2.11 Relationship Between Performance and Results

3. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

3.1 Organization and Structure
3.2 Regulatory Activities and Policy Development
3.3 Charge Processing
3.4 Compliance Monitoring
3.5 Litigation
3.6 Training Activities
3.7 Technical Assistance
3.8 Media Contact
3.9 Policy Positions and Leadership
3.10 Resources and Enforcement Limitations

4. DEPARTMENT OF TRANSPORTATION

4.1 Introduction
4.2 Federal Transit Administration
4.3 United States Coast Guard
4.4 Federal Aviation Administration
4.5 Federal Highway Administration
4.6 Federal Railroad Administration
4.7 National Highway Traffic Safety Administration
4.8 Privately Funded Transit
4.9 Technical Assistance
4.10 Summary of Findings: Issues for the Department of Transportation as a Whole

5. FEDERAL COMMUNICATIONS COMMISSION

5.1 Organization and Structure of Enforcement
5.2 Regulatory Activities and Policy Development
5.3 Complaint Processing
5.4 Compliance Monitoring
5.5 Litigation
5.6 Public Information and Technical Assistance

6. ARCHITECTURAL AND TRANSPORTATION BARRIERS COMPLIANCE BOARD

6.1 Introduction
6.2 Organization
6.3 Role in Developing and Revising ADA Guidelines
6.4 Relationship Among the Access Board, the Department of Justice, and the Department of Transportation
6.5 Policy Issues Regarding Access to the World Wide Web
6.6 Decision Making and Resources
6.7 Technical Assistance

7. OTHER ADA FEDERAL TECHNICAL ASSISTANCE AGENCIES

7.1 President's Committee on Employment of People with Disabilities
7.2 National Institute on Disability and Rehabilitation Research

8. TECHNICAL ASSISTANCE MATERIALS AND FINDINGS AND RECOMMENDATIONS FOR TECHNICAL ASSISTANCE AGENCIES

8.1 Introduction
8.2 ADA Technical Assistance Materials
8.3 Effectiveness of Current Technical Assistance Activities
8.4 Findings Regarding Technical Assistance Materials and Technical
Assistance Agencies
8.5 Recommendations for Technical Assistance Materials and Technical Assistance Agencies

9. MEDIA COVERAGE AND DEPICTION OF ADA

9.1 Negative or Inaccurate Media Coverage
9.2 Conclusions

10. STAKEHOLDER VIEWS OF ADA COMPLAINT HANDLING AND ENFORCEMENT

11. CONCLUSIONS

APPENDICES

Appendix A: Consolidated List of Findings and Recommendations A-1

Appendix B: Summary of the Americans with Disabilities Act of 1990 B-1

Appendix C: ADA Mediation Guidelines C-1

Appendix D: List of Persons Interviewed for this Report D-1

Appendix E: Description of the Milwaukee County Experience with a Voluntary Compliance Agreement: Perspective of a Community Member E-1

Appendix F: Acronyms and Abbreviations F-1

Appendix G: Mission of the National Council on Disability G-1

This report is the product of a team effort and incorporates the work of many people. The basic research and interviews were conducted and a report to the National Council on Disability (NCD) prepared under a contract with the Disability Rights Education and Defense Fund (DREDF). Nancy R. Mudrick, Ph.D., Syracuse University, was the principal author of the DREDF report. Co-authors were Mary Lou Breslin, DREDF; Marilyn Golden, DREDF; Jane West, Ph.D., consultant; and Deborah Doctor, DREDF. Each of these authors made major contributions to the conceptualization of the project, collection of data, analysis of data, or drafting of the text. Their work would not have been possible without the invaluable research support and wisdom of others. Nadja Zalokar conducted numerous interviews within the Department of Justice, providing key data for this report. Jillian Cutler, Nate Schiff, Jennifer Thau, and Debra Virgo assisted with interviewing and data analysis. Nat Lambright and Chantal Sampogna contributed legal research, with some additional assistance from Arlene Kanter. Cheri Lorenz and David Howell entered and catalogued the many ADA technical assistance materials into a database. Arlene Mayerson and Karen Strauss shared their wisdom and provided critical insights. Kathleen A. Blank played a key role in the collection of data on the Federal Transit Administration before she joined the NCD.

The task of assisting NCD in building upon and supplementing the volume of analysis, conclusions, and recommendations in the original report to produce this final version was handled by consultant Robert L. Burgdorf Jr. Overall NCD staff responsibility for the report was initially supervised by Andrew J. Imparato, former general counsel and director of policy, and completed under the supervision of Jeffrey T. Rosen, current general counsel and director of policy. Kathleen A. Blank, attorney and program specialist, was the NCD project manager responsible for assisting and coordinating the work of both contractors and staff in producing this report. Overall administrative responsibility for the report was under the direction of Ethel D. Briggs, executive director.

NCD would also like to thank the many people who gave of their time and agreed to be interviewed for this report. Special acknowledgment goes to the staff of the U.S. Equal Employment Opportunity Commission, the U.S. Department of Justice, the U.S. Department of Transportation, the Federal Communications Commission, and the other federal agencies, who not only answered many questions but gathered documents and shared data with the research team. In addition, they reviewed preliminary drafts of this document for technical accuracy and engaged in an ongoing dialogue with NCD about the findings and recommendations. The assistance of the staff of the U.S. Commission on Civil Rights is also gratefully acknowledged for generously sharing their data and the fruits of their research on Titles I and II. Finally, NCD would like to thank the people in the disability community--stakeholders, advocates, and attorneys--who shared their experiences with the enforcement of ADA and provided their assessments and insights about the strengths of enforcement and the areas that merit improvement.

This report, the third in the National Council on Disability's (NCD) report series entitled "Unequal Protection Under Law," examines enforcement of the Americans with Disabilities Act (ADA) between 1990 and 1999, relying on statistical and other federal agency data developed during that time frame. Enforcement issues identified in this report, such as lack of leadership and insufficient resources, parallel those documented in the earlier reports Enforcing the Civil Rights of Air Travelers with Disabilities: Recommendations for the Department of Transportation and Congress and Back to School on Civil Rights. This report also identifies concerns similar to those expressed in Lift Every Voice: Modernizing Disability Policies and Programs to Serve a Diverse Nation and From Privileges to Rights: People with Psychiatric Disabilities Speak for Themselves about accommodating the special needs of people with disabilities from diverse cultures, those with cognitive disabilities, and those labeled with psychiatric disabilities, especially those living in institutions. It echoes the same call for their inclusion in policy-making, setting enforcement priorities, and accommodation in agency outreach efforts. The enforcement reports to follow in this series will be on the Fair Housing Amendments Act of 1988 and Section 504 of the Rehabilitation Act.

A synthesis of the lessons learned from all these reports will be the basis for a new document, New Paradigms for a New Century: Rethinking Civil Rights Enforcement to be released formally in the fall of 2000. In its final form, this document will include input from civil rights experts who attended the NCD forum, Think Tank 2000: Coalitions Advancing the Civil and Human Rights of People With Disabilities From Diverse Cultures and the Civil Rights Working Retreat, held in May and June 2000, as well as from grassroots communities in 14 urban and rural centers representing every region in the country. It is NCD's intention that these reports, and all the dialogue to follow, will help bring about a renewed commitment to keeping America's promise of equality of opportunity and inclusion for all people.

In the decade after its enactment, the Americans with Disabilities Act (ADA) has begun to transform the social fabric of our nation. It has brought the principle of disability civil rights into the mainstream of public policy. The law, coupled with the disability rights movement that produced a climate in which such legislation could be enacted, has fundamentally affected the way Americans perceive disability. The placement of disability discrimination on a par with race or gender discrimination exposed the common experiences of prejudice and segregation and provided clear rationale for the elimination of disability discrimination in this country. ADA has become a symbol, internationally, of the promise of human and civil rights and a blueprint for policy development in other countries. It has permanently changed the architectural and telecommunications landscape of the United States. It has created increased recognition and understanding of the manner in which the physical and social environment can pose discriminatory barriers to people with disabilities. It is a vehicle through which people with disabilities have made their political influence felt, and it continues to be a unifying focus for the disability rights movement.

Although ADA signifies the achievement of a bipartisan political movement of people with disabilities, ADA is not self-acting in ensuring that its provisions are fully and finally implemented and enforced. Federal Government commitment to ADA's timely implementation and effective enforcement is essential to fulfill the law's promises. Indeed, Congress declared in ADA its intent that the Federal Government play a "central role" in enforcing the requirements of the law.[1] As they did with the earlier civil rights laws, federal enforcement agencies have a key responsibility to advance the interpretation and implementation of ADA through enforcement actions, policy guidance, and participation in the development of precedent-setting court decisions. The current administration has had the unique task of overseeing federal implementation and enforcement of ADA in its embryonic state, with the concomitant opportunities to direct clear and effective strategies for ending centuries of discrimination and segregation by disability.

The challenge of this administration has been, in part, to reverse the historical patterns of poor enforcement that characterized disability civil rights laws enacted prior to ADA. As Timothy M. Cook, a former executive director of the National Disability Action Center and a leading civil rights litigator of his time, reminded disability rights advocates shortly after ADA's enactment, if the act is administered and enforced in a fashion similar to the earlier analogous disability rights statutes, the legacy of discrimination and segregation on grounds of disability will not be dealt with "root and branch" as Congress intended.[2] Then as now, the issue is whether federal administrative agencies are taking those actions necessary to carry out the directives of ADA and thus not "allowing the ADA to accompany its legislative predecessors languishing in the hollows of nonenforcement."[3]

This report reveals that while this administration has consistently asserted its strong support for the civil rights of people with disabilities, the federal agencies charged with enforcement and policy development under ADA, to varying degrees, have been overly cautious, reactive, and lacking any coherent and unifying national strategy. Enforcement efforts are largely shaped by a case-by-case approach based on individual complaints rather than an approach based on compliance monitoring and a cohesive, proactive enforcement strategy . In addition, enforcement agencies have not consistently taken leadership roles in clarifying frontier or emergent issues--issues that, even after nearly 10 years of enforcement experience, continue to be controversial, complex, unexpected, and challenging.

Some of the leadership and enforcement deficiencies noted in this report appear to be related to the "culture" of particular bureaucracies and how these agencies have hewed to their traditional mission and circumspectly defined their constituency. In other cases, there has been a demonstrated fear of taking positions on new or controversial issues, or too great a concern for potential backlash if a strong position is taken. Critically, many of the shortcomings of federal enforcement of ADA identified in this report are inexorably tied to chronic underfunding and understaffing of the responsible agencies. These factors, combined with undue caution and a lack of coherent strategy, have undermined the federal enforcement of ADA in its first decade. Their net impact has been to allow the destructive effects of discrimination to continue without sufficient challenge in some quarters. Arguably, the major impact of this weak enforcement environment has been its contribution to the problematic federal court interpretations of key ADA principles that have unjustly narrowed the scope of the law's protections.

The Promise of Inclusion and Equal Opportunity

The passage of ADA resulted from a long struggle by Americans with disabilities to bring an end to their inferior status and unequal protection under law in our society. Census data, national polls, and other studies had long documented the severe social, vocational, economic and educational disadvantages of people with disabilities.[4] Besides widespread discrimination in employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services,[5] people with disabilities faced the additional burden of having little or no legal recourse to redress their multidimensional exclusion.[6]

Not only did ADA directly address discrimination in terms of its personal impact on the lives of people with disabilities, it also addressed the huge economic toll on the nation resulting from "billions of dollars in unnecessary expenses resulting from dependency and nonproductivity."[7] These problems resulted not only from the barriers created by lack of access to education and employment. Federal policy itself perpetuated dependency through disability programs "reflect[ing] an overemphasis on income support and an underemphasis on initiatives for equal opportunity, independence, prevention, and self-sufficiency."[8]

In a bipartisan recognition of the moral and economic benefits to be realized, not only to people with disabilities as individuals but to the nation overall,[9] Congress enacted ADA "(1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities; [and] (2) to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities."[10]

Under ADA, the U.S. Department of Justice (DOJ), the U.S. Equal Employment Opportunity Commission (EEOC), the U.S. Department of Transportation (DOT), and the Federal Communications Commission (FCC) have primary federal enforcement responsibilities as the law applies respectively to private employers, state and local governments, all facilities and programs open to the public, and providers of telecommunications equipment and services. The mechanisms and enforcement actions of these agencies related to complaint handling and compliance monitoring, as well as technical assistance and public information, are examined and assessed here along with cross-cutting issues for federal enforcement of ADA overall.

The National Council on Disability (NCD), as the independent federal agency that first proposed and drafted ADA, undertook this report in response to two mandates: a congressional mandate to monitor the implementation of ADA and a grassroots mandate to work with federal agencies toward more vigorous enforcement of disability civil rights laws.[11] This report, the third in a series of independent analyses by NCD of federal enforcement of civil rights laws, assesses a decade of ADA implementation within the federal enforcement agencies as well as the net impact arising from their collective enforcement activities on overall ADA implementation, including emerging issues raised by recent Supreme Court decisions.

Halting, Reactive Leadership by Federal Enforcement Agencies

While federal agencies have complied with their obligation to put the required regulations and complaint-handling procedures in place, they have yet to develop a cohesive, overall plan for ADA implementation and enforcement. Across the various enforcement agencies, the visible enforcement activities involve handling complaints and filing lawsuits. These are reactive methods of enforcement. Proactive strategic enforcement activities are less evident. Little compliance monitoring has been incorporated into ADA enforcement. Enforcement efforts seem more focused on "micro," individual cases. This means lost opportunities, because findings at the individual level often do not lead to an examination of larger systemic issues. Overall, the federal enforcement effort has been uneven, lacking in robustness, and suffering from low visibility in many areas.

The overall impact of ADA has been seriously diminished by the lack of sufficient leadership in the development of a vision for ADA enforcement across the various agencies. Although heads of federal enforcement agencies have consistently expressed a commitment to the assertive implementation of ADA's requirements, their support has not translated into coordinated and authoritative enforcement leadership at the staff level. The lack of leadership and strategy has been particularly troubling, given that the federal courts have been dismantling the law's protections and routinely disregarding the positions of the federal agencies on critical issues such as the definition of the protected class, the appropriate analysis for determining the reasonableness of a particular accommodation, and the constitutionality of Title II of ADA.

In the individual federal agencies, a lack of leadership frequently manifests itself as inconsistency in the way an agency carries out its enforcement responsibilities. The Department of Transportation is one of the clearest examples of inconsistent intraagency enforcement activity. Six quasi-independent modes within DOT are responsible for enforcing the many transportation provisions of ADA. Each mode is different, sometimes strikingly so, in the interpretation of ADA requirements, the approach to complaint investigation, and the priority placed on public education. Some modes habitually gave the covered entities broad discretion in meeting ADA's accessibility requirements and timetables, while others communicated a clear expectation of timely compliance. While some modes were proactive in disseminating public education information with specific information to consumers about their rights, others provided only the most general information on grounds that it was not within their purview to provide more specific information about rights under the law. This kind of inconsistency greatly undercut DOT's overall effectiveness in establishing an expectation of compliance with ADA's nondiscrimination mandate among all the covered entities within its purview.

While all federal agencies share leadership responsibility for the effective administration of ADA, the broad ADA enforcement authority of the Department of Justice makes it the appropriate agency for directing the overall enforcement strategy. Had all the federal agencies worked more closely in collaboration with each other and stakeholders on developing a national strategy, ADA would likely be in a much stronger position as we mark the 10th anniversary of its passage. The current challenges to Title II of ADA illustrate the critical necessity of cooperation, coordination, and collaboration among federal agencies charged with ADA enforcement. The agencies have engaged in some collaboration, and they meet regularly as a group. However, insufficient collaboration takes place for the Title II referral process, which involves eight different cabinet-level agencies in complaint handling and enforcement and the Department of Justice for litigation of Title II violations. DOJ has not exercised enough oversight and tracking of Title II complaints, and the seven referral agencies have not sufficiently cooperated with DOJ to prepare and refer cases that would advance the interpretation of ADA. For example, at the time research for this report was completed, the Department of Transportation had never referred findings of discrimination resulting from any ADA complaint to DOJ for litigation. The development of Title II case law has been limited by the few referrals of Title II violations from the agencies to the DOJ for litigation. When it has had the opportunity to litigate referred complaints, DOJ has consistently furthered the goal of effective and instructive implementation of ADA by taking strong and appropriate stances on issues.

The overall record indicates that the enforcement agencies have been hesitant to exercise leadership in litigating difficult or controversial issues, or to maintain sufficiently rigorous positions in settlement negotiations. The difference is quite dramatic when an agency manifests strong leadership, takes a definitive and enlightened position on an issue, and advocates robustly for it, as EEOC did with reversing a disturbing trend in the case law whereby individuals were being estopped from pursuing employment discrimination suits under ADA if they had applied for disability benefits after being terminated. In contrast, when an agency forsakes a leadership role, takes an equivocal and muddled position, and plays only a minor and somewhat negative role in the resolution of an issue, as EEOC did in its confined, technical approach to the definition of "disability," it may contribute to an adverse climate such as that which eventually culminated in the Supreme Court decisions restrictively construing the definition.

In many of the most important policy issues for ADA, such as the definition of disability and the application of the ADA requirement for public services in the most integrated setting, the federal agencies have too often waited for the private bar to bring the key litigation. Federal agencies have recurrently entered important cases late in their progression via amicus participation. Moreover, federal agencies generally have not demonstrated a proactive strategy for acting quickly to limit the impact of court decisions that have eroded important protections of ADA. Nor is a strategy evident for selecting and litigating ADA cases against powerful entities that interact with large numbers of people daily. Despite the slow increase of class action litigation overall, far too few class cases are developed and litigated compared with individual plaintiff cases. Finally, our investigators observed a lack of coordination on case selection and overall litigation strategy within and among agency field offices engaged in litigation.

Early and proactive stances on the interpretation of the law through regulations and subregulatory policy guidance have a critical influence in shaping how the law will be implemented by the stakeholder communities and interpreted by the courts. Formal and informal guidance from federal agencies in understanding the law's requirements serve both to encourage compliance and reduce lawsuits challenging the law's reach. The Department of Justice has made minimal use of its authority to issue additional regulations and subregulatory guidance under ADA. DOJ has taken constructive policy positions primarily in the context of litigation. For example, DOJ has been criticized for not providing timely guidance asserting that disadvantageous insurance terms or coverage based on distinctions between physical and mental impairment without actuarial justification is discrimination. Many view this void as having contributed to the stream of lawsuits challenging the inclusion of insurance under Title III. EEOC has often effectively used subregulatory guidance to promote the implementation of Title I requirements. In the face of an active movement to exclude people with psychiatric disabilities from the protections of the law, EEOC's timely guidance on how the ADA nondiscrimination mandate applies to people with psychiatric disabilities has been significant in forestalling this outcome. Unfortunately, however, EEOC has at times used subregulatory and other guidance documents to propound misguided policy positions, including its overly technical approach to the definition of disability, the "danger to self" criterion in the "direct threat" standard, a duration standard for disabilities, and others described in this report.

The nature or extent of inaccurate and misleading negative media portrayals of ADA surfaced at several points in the law's first 10 years and continue to this day. Enforcement agencies have not been consistently stalwart in their reaction to high-profile stories and broadcasts incorrectly portraying ADA and its objectives. A steady stream of inaccurate and misleading media portrayals of ADA have undermined public support for ADA, caused a backlash against the expansion of the civil rights of individuals with disabilities, and perhaps fostered a perception that noncompliance was not an unreasonable response to an "excessive" mandate. The absence of strong and visible Federal Government leadership has contributed to the concern that there is little balance in the public discourse on ADA and a general public misunderstanding of the aims and requirements of ADA. It has also allowed ADA's detractors to develop a mainstream reputation for hard-hitting, objective criticism that is not well deserved. The challenge for the ADA enforcement agencies is to find the means to reverse the negative effects of years of public misrepresentation of the law before public opposition reaches a critical mass.

Justice Delayed

Under its current leadership, federal enforcement agencies have steadily improved the efficiency and procedural consistency in their enforcement activities. Nevertheless, ADA enforcement agencies remain agonizingly slow in the performance of their enforcement duties. The most noticeable problems involve complaint handling, with significant variations in the processes across the different agencies. These differences may be attributed in part to the role that complaint processing has in an agency's overall mission. While the Department of Justice refers or resolves nearly every Title II complaint, it does not open for investigation most Title III complaints. For Title III, DOJ is given authority to pursue complaints and litigation only selectively, focusing on pattern or practice cases and on instances that raise an issue of general public importance. Although its complaint procedures are evolving, DOJ is often very slow in referring Title II complaints or communicating with complainants about its selective handling of Title III complaints. The EEOC has significantly reduced the time required to process most complaints, but in the initial years of ADA, the processing time for Title I complaints was also very slow, in many cases more than two years. In some of the referral agencies, procedures for complaint handling are not well developed or documented.

The net impact of these slow actions has been to mute enforcement, unnecessarily extend the effects of discrimination for victims, and undermine the confidence of charging parties and covered entities in the ability of the federal agencies to investigate discrimination complaints in a timely, fair, and effective manner.

Despite the fact that ADA requires existing agencies to take on new tasks and activities, the budgets and approved staffing levels of these agencies have not changed in a commensurate manner. At the EEOC, the first real increases in budget did not occur until nine years after ADA implementation began. Both the EEOC and the Disability Rights Section of the Department of Justice received increases for ADA enforcement in fiscal 1999. However, the EEOC saw a large increase in its caseload following the implementation of ADA in 1992. At the Department of Justice and in the operating administrations in the Department of Transportation, new responsibilities for complaint processing and compliance reviews had to be developed with no additional funds.

Congress has not provided adequate funding for true enforcement commensurate with the ADA's strong mandates, even when the administration has assertively presented the need for greater resources to properly enforce the law. While Congress recently has increased funding for some agencies' ADA enforcement activities, the long period of substantially inadequate funding has taken its toll. Even with the most recent increases, all ADA enforcement agencies still require additional resources, not only for personnel but to purchase technology and data management systems to enable them to efficiently and correctly perform their enforcement responsibilities. As a result of insufficient funding and staff, aspects of enforcement--such as the certification of building codes, the monitoring of transit system accessibility, the issuance of architectural or transportation standards as regulation, and the time required to determine whether or not to file a lawsuit or intervene in an ongoing case--have proceeded slowly.

In part to make up for inadequate investigative staff and resources, the enforcement agencies have in common an increased use of mediation (alternate dispute resolution or ADR), not only for disability civil rights laws but for all civil rights laws. The agencies report success and satisfaction with their limited mediation experiences to date. The use of mediation by agencies enforcing ADA will likely continue to increase because Congress mandates and supports it. Thus, it is vitally important that mediation be carried out in a way that helps expedite successful compliance with ADA and does not compromise an individual's civil rights. This requires careful agency oversight of the mediation activities and of the settlements achieved through mediation. The Department of Justice currently does not involve itself in the mediation process in either an oversight role or as a signatory to the agreement as a means of securing enforcement, preferring to rely on trained mediators to attain a satisfactory outcome.

The examination of mediation in the different venues elicited many common questions. The issues raised by these questions are largely beyond the scope of this report and require further study. There is a real risk that the complainant may not be on a level playing field with the respondent. The skill and knowledge of the mediator, whether the complainant is alone or comes with the support of an advocate, and whether representation by an attorney is equal (e.g., neither side has an attorney or they are both represented) are key factors.

Mixed Results from Outreach Efforts

ADA specifically directs agencies to engage in technical assistance and to produce technical assistance materials. The enforcement agencies have generally met their obligations in this area; some excellent technical assistance documents have been published, and large-scale, ongoing training and public information efforts have occurred. However, there has never been a governmentwide evaluation of the effectiveness of these efforts nor a reassessment of the outreach strategy. Critical pockets remain where additional information and assistance are needed. In the areas of employment and transportation, much of the focus has been on the covered entities. Less information has been targeted to people with disabilities so they know their rights and how to pursue enforcement of them.

There have been few efforts to ensure that technical assistance materials and training opportunities in culturally appropriate formats are equally available to underserved individuals and covered entities in rural and culturally diverse communities, people with cognitive disabilities, people labeled with psychiatric disabilities, people living in institutions, and youth and young adults. While some federal agencies have made varying degrees of progress in tailoring their outreach and public education to address the needs of these diverse groups, there is a notable dearth of such materials in relation to the need of traditionally underserved groups for information about ADA and how to access their rights. Resource limitations have contributed to deficits in technical assistance and other outreach activities. Technical assistance from the Department of Justice and other agencies in emergent areas of ADA policy and enforcement, such as genetic discrimination or Web site accessibility requirements, is also needed.

Insufficient Consultation in Developing Enforcement Priorities

Although enforcement agencies all have some relationship with the disability community, there are few opportunities for appropriate input from people with disabilities on setting overall priorities for policy development and litigation, developing appropriate strategies for mitigating the impact of negative court decisions, determining appropriate and feasible accommodations, and advising on the design and dissemination of public education materials targeting specific constituent groups of the disability community, such as people from diverse cultures, people with limited or no English proficiency, those living in institutions, those with cognitive disabilities, and those labeled with psychiatric disabilities.

Input from the disability community is especially important in verifying that covered entities have taken action to correct ADA violations. As an example, some Department of Transportation modes routinely rely on self-reporting by local transportation authorities to verify that required corrections of noncompliant conditions were implemented, and do not consult with the affected disability community to determine whether the corrective action actually took place.

Recommendations

NCD makes the following preliminary recommendations to strengthen federal enforcement of ADA:

The Department of Justice should provide robust and assertive leadership for ADA implementation and to develop a strategic vision and plan for ADA enforcement across the Federal Government.

Given its broad ADA enforcement authority, the Department of Justice should assume responsibility for leading an effort to develop a strategic plan for ADA implementation and enforcement, and the attorney general should serve as the spokesperson for the overall federal vision and strategy for ADA implementation. In providing leadership for ADA implementation, the Department of Justice should require annual reporting from the other agencies with ADA enforcement responsibilities and should itself issue an annual report to the president and Congress on the issues and activities associated with ADA implementation and enforcement. Leadership from the Department of Justice should focus on the "big picture" and emergent ADA issues, and on ensuring that ADA enforcement includes not only complaint processing but compliance monitoring, strategic litigation to develop ADA case law, coordination among the enforcement agencies, ongoing issuance of subregulatory guidance and information, and outreach so that ADA is correctly understood by the covered entities, people with disabilities, the media, and the public.

The Departments of Justice and Transportation, the Equal Employment Opportunity Commission (EEOC), and the Title II Referral agencies should strengthen methods for the timely and effective enforcement of ADA.

Complaints need to be processed by a more consumer-responsive and credible enforcement system that provides timely and high-quality investigations, findings, and resolutions. All agencies should implement systems so that persons who file a discrimination complaint receive a prompt acknowledgment from the processing agency; subsequent communication that updates the complainant at least every three months on the status or progress of the complaint; and information from the very start about how the complaint investigation process works and what to expect from the agency handling the complaint. Agencies should work to shorten the time required to complete a thorough assessment of the facts and merits of a complaint. The EEOC, where complaint handling is a major function, has a well-developed and documented set of procedures. DOT and DOJ, agencies with broad missions and in which ADA complaint investigation is one of many complex enforcement activities, generally have less clearly articulated procedures. Greater exchange of expertise about methods for investigating and documenting complaint processing should take place to improve complaint handling across all titles of ADA. The apparent thoroughness and competence of the complaint investigation, finding, and resolution activities need to be improved to achieve greater credibility with both complainants and respondents.

The Department of Justice should make use of regulations, subregulatory guidance, and technical assistance documents to take a leadership role on policy issues in Title II and Title III enforcement and to help covered entities understand and comply with their responsibilities. The EEOC should issue regulatory, subregulatory, and technical assistance documents, as necessary, to repudiate the misguided and erroneous prior policy positions, identified in the report, that it has enunciated or contributed to. In particular, the EEOC should issue subregulatory guidance to clarify the breadth of the third prong of the definition of disability and the inappropriateness of technical constraints on the concept of limitations on the major life activity of working, toward the end of persuading courts to focus more on the allegedly discriminatory actions of employers rather than the characteristics of and precise degree of limitations of the complainant.

Agency resources are a key influence on the ability of an agency to effectively meet its enforcement responsibilities. The increases in the FY 1999 budget for ADA enforcement at the EEOC and the Department of Justice were badly needed. Even with these increases, more resources are needed to enable the agencies to hire additional personnel, and provide increased staff training, and to support the development and maintenance of information management systems and other technology in the agencies. Congress must allocate additional resources with clear funding direction that would strengthen the agencies' capacity for more effective, efficient, and timely enforcement of ADA. Increased resources devoted to ADA enforcement would mean that more cases could be opened for investigation and litigation; that regulations, subregulatory guidance, and technical assistance materials could be developed more expeditiously and on a broader scale; that more compliance reviews could be conducted; and that systems improvements could be introduced that would lead to better tracking of complaints and referrals, more useful enforcement data, and quicker responses to complainants.

To reinforce the principles of ADA and to clarify the interpretation of key provisions of the law, the federal enforcement agencies need to pursue strategic litigation more vigorously. Federal agencies should also increase their use of strategic litigation and class action cases to bring broad sectors of employment, large employers, and large corporate providers of public accommodations into ADA compliance.

Federal agencies must also exercise strong oversight of the mediation process and ensure that complainants' rights are protected. Such oversight should focus on ensuring that agreements do not violate the requirements of ADA and on the competence of the mediators, both at mediation and with respect to disability issues and ADA. A systematic study should be conducted on how the mediation of ADA cases is working. A cadre of trained and paid mediation support personnel whose task is to help the complainant through the process of mediation should be developed. The enforcement agencies should adopt standards along the lines of the ADA Mediation Guidelines (see Appendix C) to govern mediation of ADA disputes.

Federal enforcement agencies should ensure that staff members are knowledgeable and current on matters relating to ADA enforcement. Staff training, a key method for ensuring that staff are knowledgeable, has occurred and is continuing to occur, especially at the EEOC. However, training that follows up, refreshes, or updates earlier training is needed. In some of the Title II referral agencies, the legal expertise of the investigative and legal staff with respect to ADA jurisdictional issues also needs to be improved. Many of the DOT operating administrations, especially, need to provide training in various areas, including investigation, legal jurisdictional issues, ADA, and disability issues.

The federal enforcement agencies should engage in more outreach, training, and collaboration with the disability community.

Increased outreach to the disability community--people with disabilities and the disability advocacy and legal communities--is required. The enforcement agencies all have some relationship with the disability community, but they would benefit from greater input from these groups in setting their priorities for policy development and litigation, in determining feasible accommodations, and in identifying areas in which additional agency staff training would be helpful. The enforcement agencies should engage in structured collaboration with private attorneys specializing in disability law to advance the litigation activities of the agencies. Follow-up, refresher, or updated training of the disability community should be provided by all the enforcement agencies.

Federal enforcement agencies should make a concerted effort to develop and effectively disseminate public education materials geared to the unique needs of many of the constituent groups within the disability community. Many more materials that effectively accommodate the needs of people with disabilities from diverse cultures and people with mental disabilities are needed to improve general awareness among these groups of their rights and how to exercise them. Information dissemination strategies must accommodate the limited contact with the outside world available to people living in institutions, especially people with mental disabilities, for effective outreach to these populations.

The Department of Justice, the Equal Employment Opportunity Commission, and the other federal agencies charged with ADA enforcement should promote proactive messages for media coverage of ADA.

The enforcement agencies should embark on a proactive public educational media campaign for ADA. Such a campaign does not require that the agencies "take sides" in a fashion inappropriate for an enforcement agency. It does mean making use of the media to more clearly explain the requirements of ADA, its rationale, and the ways in which ADA protections are a benefit to us all. The campaign must also include strategies to respond to inaccurate and misleading negative portrayals of ADA in the media.

Conclusion

ADA's comprehensive national mandate for the elimination of discrimination based on disability raises the expectation that the "full force of the federal law will come down on anyone who continues to subject persons with disabilities to discrimination by segregating them, by excluding them, or by denying them equally effective and meaningful opportunity to benefit from all aspects of life in America."[12] The National Council on Disability understands its statutory mission to monitor the implementation, effectiveness, and impact of ADA in light of this mandate. As the Supreme Court prepares to address the constitutionality of ADA, it is more important than ever that federal agencies charged with the law's enforcement come together in a unified strategy to protect and advance ADA.

As the nation approaches the upcoming presidential elections in the fall of this year, it is with a greater awareness than ever of disability and its impact. The disability community as a whole is a more informed constituency, more keenly aware of its right to equality of opportunity under the law. This report provides a blueprint for the next administration to remedy the shortcomings that have hindered ADA compliance and enforcement until now. NCD stands ready to work with our sister agencies and other stakeholders inside and outside the government to develop that strategy. Indeed, throughout the preparation of this report, federal agencies have shown great willingness to collaborate with NCD in advancing the broad and enlightened enforcement of ADA. Together, as we stand at the dawn of a new century, let us recommit to the vision of an America that keeps its promise of "liberty and justice for all."

Endnotes

[1] Americans with Disabilities Act, 42 U.S.C. 12101(b)(3).

[2] Timothy M. Cook, The Americans with Disabilities Act: The Move to Integration, 64 Temp. L. Rev. 393, 469 (Summer 1991).

[3] Id. at 397.

[4] 42 U.S.C. §12101(a)(6). For a discussion about the problems with and limitations on census data regarding people with disabilities, see National Council on Disability, Toward Independence: An Assessment of Federal Laws and Programs Affecting Persons with Disabilities--With Legislative Recommendations, February 1986, at 3-5. The "national polls" reference is primarily to polls conducted by Louis Harris and Associates. In 1986, the Harris organization undertook the first-ever nationwide telephone poll of persons with disabilities. Louis Harris & Assocs., The ICD Survery of Disabled Americans: Bringing Disabled Americans into the Mainstream (1986).

[5] 42 U.S.C. §§12101(a)(2) and (3).

[6] 42 U.S.C. §12101(a)(4).

[7] 42 U.S.C. §12101(a)(9).

[8] National Council on Disability, Toward Independence: An Assessment of Federal Laws and Programs Affecting Persons with Disabilities--With Legislative Recommendations, February 1986, p. 12.

[9] See S. Rep. No. 116, 101st Cong., 1st Sess. 101 (1989) at 16-18.

[10] 42 U.S.C. §12101(b). Cf. Toward Independence, pp. 18-19.

[11] National Council on Disability, Achieving Independence: The Challenge for the 21st Century, July 26, 1996, pp. 155, 157.

[12] 135 Cong. Rec. S4984 (daily ed. May 9, 1989) (statement of Sen. Harkin).

1.1 Background

This report on federal enforcement of the Americans with Disabilities Act (ADA) is a product of the Disability Civil Rights Monitoring Project, a policy initiative of the National Council on Disability (NCD). It is responsive to the NCD interest in fostering effective enforcement of existing disability civil rights laws and its statutory responsibility to monitor the effectiveness of ADA implementation by examining how the various federal agencies are implementing their enforcement responsibilities under ADA.[1]

The impetus for this project grew from the 1996 National Summit on Disability Policy, where a diverse group of disability community leaders from across the country recommended that NCD:

• work with the responsible federal agencies to develop strategies for greater enforcement of existing disability civil rights laws "consistent with the philosophy of " ADA[2]
• continue working "toward elimination of contradictory laws, regulations and programs [and]...promote coordination and commonality of goals across agencies"[3]

NCD responded to these directives with a request for proposals (RFP) to assess the federal government's compliance, enforcement, and public information efforts regarding ADA, Part B of the Individuals with Disabilities Education Act (IDEA), the Fair Housing Act as amended by the Fair Housing Amendments Act of 1988 (FHAA), and the Air Carrier Access Act (ACAA). In response to the RFP process, NCD selected the Disability Rights Education and Defense Fund (DREDF) to assess and report on federal enforcement of each of the four laws and on the cumulative impact of federal enforcement of all four laws.

1.2 Purpose of the Report

This report describes federal compliance, enforcement, technical assistance, and public information activities for the four main titles of the Americans with Disabilities Act. It also assesses the effectiveness of these activities. Specific areas of attention include:

• complaint processing methodologies and their outcomes
• proactive compliance activities
• regulatory and policy development activities
• litigation activities and the focus and impact of litigation choices
• administrative organization for enforcement
• staff training for ADA enforcement
• technical assistance activities and public information aimed at covered entities and at people with disabilities
• leadership in addressing key issues of ADA interpretation and enforcement as new issues surface and in response to the interests and needs of the disability community

1.3 Scope of the Report

This report addresses federal enforcement of ADA as carried out by four key federal agencies: the Department of Justice (DOJ), the Equal Employment Opportunity Commission (EEOC), the Department of Transportation (DOT), and the Federal Communications Commission (FCC). It also addresses briefly the ADA technical assistance activities of three additional agencies: the Architectural and Transportation Barriers Compliance Board (Access Board), the National Institute on Disability and Rehabilitation Research (NIDRR) and the Disability and Business Technical Assistance Centers (DBTACs) that it funds, and the President's Committee on the Employment of People with Disabilities (PCEPD). The report focuses on Titles I-IV of ADA and the federal agencies responsible for the enforcement of these titles. It does not analyze implementation of the miscellaneous and technical provisions in Title V of ADA.

1.4 Research Approach

Enforcement of ADA is examined from two perspectives. The whole agency approach assesses the effectiveness of each of the federal agencies in achieving the enforcement objectives for which each of them is responsible. The whole law approach assesses the overall effectiveness of the collective enforcement activities, as well as the effect of their external coordination and collaboration across agencies within and outside of government.

The research activities for this study included the following:

• identifying the functions and organizational components of each of the four key enforcement agencies
• identifying, collecting, and analyzing data from the complaints filed and processed by the agencies
• identifying, collecting, and analyzing information about agency regulatory and policy development activities
• reviewing and assessing agency documents such as annual reports, task force reports, procedure manuals, and other internal documents
• identifying and collecting information on agency technical assistance activities
• identifying and collecting information on agency training activities
• collecting and classifying the public information materials published and/or distributed by the federal agencies
• conducting interviews with agency staff to understand the agency processes for complaint handling, litigation activities, and the development of policy guidance
• conducting interviews with persons outside the enforcement agencies--people with disabilities, private attorneys, and advocates--who have utilized the federal enforcement mechanisms to obtain a consumer's perspective

At the time the research team was conducting its research for this report, the U.S. Commission on Civil Rights was completing two evaluation reports, on Title I and Title II of ADA. At the urging, in particular, of the EEOC, the Civil Rights Commission shared with the research team some of the data and other materials it had gathered. In an effort to not unnecessarily duplicate efforts, information, data, and interviews from the Commission's published reports are cited as well, since these comprise important additional sources of information.

1.5 Report Structure

This report is presented in 11 chapters. This chapter, Chapter 1, provides introductory information about the purpose, scope, and content of the report; and about the history, structure, and enforcement processes of ADA. Chapter 2 examines ADA enforcement activities of the Department of Justice, including its regulatory activities, and its performance in processing complaints under Title II and Title III and in pursuing litigation under Titles I, II, and III. Chapter 3 assesses the activities of the EEOC in pursuing its regulatory and enforcement responsibilities for Title I. The Department of Transportation, which has specific regulatory and enforcement responsibilities under Titles II and III, is the focus of Chapter 4. Chapter 5 assesses enforcement of Title IV by the FCC. The standard-setting activities of the Access Board are discussed in Chapter 6. The technical assistance activities of NIDRR and the President's Committee on the Employment of People with Disabilities and the public information and technical assistance materials distributed by these agencies are the focus of Chapters 7 and 8. Chapter 9 discusses the media presentation of ADA and its relationship to enforcement issues. Stakeholder views of ADA enforcement are presented in Chapter 10. A summary assessment of the findings is presented in the final chapter.

This report also includes six appendices. Appendix A is a complete list of all the findings and recommendations contained in this report, across all the agencies, grouped by agency, or, in the case of the Department of Transportation, by the individual operating administrations within the Department. Appendix B contains a detailed summary of the provisions of all five titles of ADA. Appendix C contains ADA Mediation Standards. Appendix D is a list of persons interviewed for this report. Appendix E presents a description of the Milwaukee County experience with a Voluntary Compliance Agreement from the perspective of a community member. Appendix F is a glossary of acronyms used in the report.

1.6 Brief History and Context of the Americans with Disabilities Act

On July 26, 1990, the Americans with Disabilities Act of 1990 (ADA), the most comprehensive civil rights advancement for people with disabilities ever to be enacted by the United States Congress, was signed into law by President George Bush.[4] ADA originated as a proposal of the National Council on Disability. The development and enactment of the legislation is described in some detail in NCD's report Equality of Opportunity: The Making of the Americans with Disabilities Act;[5] the following is a brief summary of some of the high points.

In 1984, Congress established NCD as an independent federal agency[6] and charged it with reviewing federal laws, regulations, programs, and policies affecting people with disabilities to assess the effectiveness of such laws, regulations, programs, and policies in meeting the needs of individuals with disabilities, and making recommendations to the president, Congress, officials of federal agencies, and other federal entities regarding ways to better promote equal opportunity, economic self-sufficiency, independent living, and inclusion and integration into all aspects of society for Americans with disabilities.[7]

NCD was specifically charged with issuing, by February 1986, a report to the president and Congress analyzing federal laws and programs and presenting legislative recommendations to address shortcomings identified. Before issuing this report, NCD convened consumer forums in all 50 states and the U.S. territories; participants in these forums repeatedly told NCD that the most pervasive and recurrent problem faced by people with disabilities was unfair and unnecessary discrimination.

In response to its statutory mandate, NCD published Toward Independence, a report to the president and Congress, in January 1986. In the report, NCD presented 45 legislative recommendations in 10 broad topic areas. The first recommendation was that

Congress should enact a comprehensive law requiring equal opportunity for individuals with disabilities, with broad coverage and setting clear, consistent, and enforceable standards prohibiting discrimination on the basis of handicap.

NCD suggested that the proposed statute should be named the Americans with Disabilities Act.[8]

Subsequent recommendations in the report described what should be included in such a statute.[9] Relying on the findings and evidence of the Commission on Civil Rights in Accommodating the Spectrum, the report spotlighted the pervasiveness of discrimination on the basis of disability and the need for a comprehensive statute prohibiting such discrimination.[10]

In its 1988 follow-up report, On the Threshold of Independence, NCD fleshed out its concept of ADA by publishing its own draft bill.[11] With a few changes,[12] NCD's draft bill was introduced in the Senate on April 28, 1988, and in the House of Representatives on April 29, 1988.[13] Joint congressional hearings on the bills were held in September 1988, but, when the 100th Congress expired a couple of months later, no action had been taken on the proposed legislation.

A revised ADA bill,[14] sponsored by Senator Tom Harkin (D-Iowa) in the Senate and Representative Tony Coelho (D-CA) in the House of Representatives, was introduced in the 101st Congress on May 9, 1989.[15] On August 2, 1989, the Senate Committee on Labor and Human Resources reported unanimously a substitute bill reflecting certain compromises and clarifications arrived at through negotiations between the Bush Administration and Senate sponsors of the bill.[16] The Senate passed the bill, with a few floor amendments, by a vote of 76 to 8 on September 7, 1989.[17] The House Committee on Education and Labor reported out a substitute bill incorporating the Senate changes and other clarifying language, by a vote of 35 to 0, on November 14, 1989.[18] Subsequently, the three other House committees to which the bill was assigned--Public Works and Transportation,[19] Energy and Commerce,[20] and Judiciary[21]--reported out ADA bills. On May 22, 1990, the House passed a consolidated version of the bill by a vote of 403 to 20.[22]

After two different conferences on the bill finally succeeded in working out differences between the Senate and House versions,[23] the House approved the final version of the bill by a vote of 377 to 28 on July 12, 1990,[24] and the Senate, with a similarly overwhelming majority of 91 to 6, passed the bill on July 13, 1990.[25] In addition to NCD's Equality of Opportunity report, a variety of other publications describe various details of the events surrounding ADA's introduction, and congressional consideration and passage of the legislation.[26]

In a broader sense, the history of ADA did not begin in 1988 when the first bill was introduced in Congress. Rather, the disability rights movement had paved the way for the law's enactment during the preceding several decades by advocating for an end to historic practices of isolation, segregation, and exclusion of people with disabilities from schools, jobs, and community life. In the early 1970s, advocates began to go to court to challenge practices that kept people with disabilities from participating in programs, activities, and opportunities that other members of society took for granted.

A profound shift in disability public policy took place in 1973 with the passage of Section 504 of the 1973 Rehabilitation Act. Section 504, modeled after earlier laws prohibiting discrimination based on race, sex, and ethnic origin, forbade entities receiving federal financial assistance from discriminating on the basis of disability.

Before the passage of Section 504, exclusion and segregation of people with disabilities was not considered discriminatory under federal statutory law. Disability public policy had been based on the assumption that the problems faced by people with disabilities, such as unemployment and lack of education, were inevitable consequences of the physical or mental limitations imposed by the disability itself. Enactment of Section 504 showed Congress's recognition that the inferior social and economic status of people with disabilities was not a consequence of the disability itself but instead was a result of societal attitudes, barriers, and prejudices. As with racial and gender discrimination, Congress recognized that legislation was necessary to eradicate disability-based discriminatory policies and practices.

During the 1980s, the disability community also succeeded in getting other important disability rights laws enacted. Federal legislation was passed banning discrimination against people with disabilities by airlines, establishing the right to sue states for violations of Section 504 and the right of parents to recover attorney fees under the Education for All Handicapped Children Act (since renamed the Individuals with Disabilities Education Act, or IDEA), and prohibiting discrimination in housing. Despite these important legislative advances, people with disabilities still lacked a coherent national policy guaranteeing the same protection from discrimination as that available on the basis of race, ethnicity, gender, and religion; thus, ADA was needed.

In the years since its enactment, the extent to which people with disabilities perceive that ADA has been effective in challenging discrimination and eliminating architectural, communication, and policy barriers reflects, to a significant extent, the federal government's leadership in implementing and enforcing the law. The difficult job of conceptualizing, crafting, and enacting the landmark legislation took place more than a decade ago. The equally difficult task of monitoring and ensuring effective, consistent, and timely enforcement and implementation of ADA continues, and is the subject of this report.

1.7 Structure, Organization, and Enforcement Authority of ADA

ADA contains five titles.

• Title I: Employment--affecting employers having 15 or more employees
• Title II: Public Services--affecting all activities of state and local governments, with Subtitle B applicable to transportation provided by public entities
• Title III: Public Accommodations and Services Operated by Private Entities--affecting privately operated public accommodations, commercial facilities, and private entities offering certain examinations and courses
• Title IV: Telecommunications--affecting telecommunication relay services and closed captioning
• Title V: Miscellaneous Provisions--including the relationship of ADA to other laws, the requirements for technical assistance, the role of the Architectural and Transportation Barriers Compliance Board, the coverage of Congress, and some additional definitions regarding coverage.

Enforcement responsibility for Title I (employment) rests primarily with the EEOC, although the attorney general also has certain responsibilities. The enforcement authority of Title I is structured to correspond to the powers, remedies, and procedures that are set forth in Sections 705, 706, 707, 709, and 710 of the Civil Rights Act of 1964. In addition, ADA requires coordination between the authorities enforcing Title I and enforcement under the Rehabilitation Act of 1973 performed by the Office of Federal Contract Compliance Programs of the U.S. Department of Labor. In addition to federal agency enforcement, Title I affords individuals a private right of action.

ADA provides enforcement processes under Title II as to state or local government entities that correspond to the remedies and procedures in Section 505 of the Rehabilitation Act of 1973. The Department of Justice is responsible for issuing the implementing regulations for Subtitle A of Title II (all activities of state and local government except transportation); however, the processing of complaints under Title II is spread among the Department of Justice and seven other "designated" cabinet-level agencies. Regulations for Subtitle B, involving transportation, are the responsibility of the Department of Transportation. DOT is also the designated agency for complaints involving public transportation. The designated agencies all have authority under the Rehabilitation Act to investigate, resolve, and litigate complaints that fall under Section 504. Because of the overlap between ADA Title II complaints and complaints filed under Section 504 of the Rehabilitation Act, cases litigated by these agencies may be dually considered Section 504/ADA. However, Title II of ADA also places responsibility for litigation with the Department of Justice. Not only is DOJ to engage in litigation of the complaints that fall under its own jurisdiction, but it can litigate complaints considered by a designated agency that, following an investigation and a cause finding, are referred to DOJ for litigation. Individuals also have a private right of action under Title II.

Federal enforcement of Title III rests solely with DOJ. The remedies and procedures are those set forth in Section 204(a) of the Civil Rights Act of 1964. The attorney general is charged with the duty to investigate alleged violations of Title III and undertake periodic reviews of compliance of the covered entities. Where a violation is found that indicates a pattern or practice or an issue of general public importance, the attorney general is authorized to seek enforcement through a civil action in U.S. District Court. Individuals also have a private right of action under Title III.

The Federal Communications Commission is charged with the responsibility for enforcement of Title IV (telecommunications). Complaints under Title IV that involve intrastate telecommunications are to be referred to the particular state for handling. The FCC can reassert jurisdiction over such complaints only if the state has taken no action after 180 days or the state is no longer qualified for certification from the FCC.

Title V, with a number of different definitional and other miscellaneous provisions, does not establish any distinct enforcement structures. Some of the provisions do not require the articulation of enforcement; others (e.g., provisions for retaliation) refer enforcement to the first three sections of ADA. The enforcement procedures for the Senate and the House of Representatives are those adopted by the bodies for discrimination charges based upon race, color, religion, sex, national origin, or age.

The above paragraphs summarize briefly the enforcement structure of each title of ADA. A more detailed description of the content of each title, including its enforcement provisions, can be found in Appendix B. The four chapters that follow describe in detail the organizational structure and processes that have been developed by the Department of Justice, the Equal Employment Opportunity Commission, the Department of Transportation, and the Federal Communications Commission to implement their enforcement responsibilities.

1.8 Elements of Civil Rights Enforcement

Ideally, the performance of the agencies charged with enforcement of ADA should be judged against a standard of what constitutes a good or effective job of civil rights enforcement. In the absence of such a standard, potential elements of a model of effective civil rights enforcement have been identified, derived inductively from the evaluation findings. Further study would be helpful to elaborate the content of these elements and to prioritize them. In addition, examination of the enforcement of other civil rights laws, such as the 1964 Civil Rights Act that covers discrimination based upon race, color, national origin, religion, and sex, would provide further information about the elements of effective enforcement. Eventually, these elements could be used to develop criteria to assess effective civil rights enforcement.

Element 1. Proactive and reactive strategies. Proactive measures address compliance through efforts to educate, monitor, and prevent civil rights violations, and reactive measures aim to resolve and remedy complaints of civil rights violations after the fact.

Element 2. Communication with consumers and complainants. Communication must ensure that persons protected by the statute know where and how to file complaints of discrimination, how the enforcement agency operates, what to expect as possible outcomes, and the aims and limits of the enforcement mandate. Complainants should hear promptly from the agency following the initial filing and be regularly updated on the status of the complaint.

Element 3. Policy and subregulatory guidance. Enforcement is advanced where agencies issue policy and subregulatory guidance on issues of confusion or controversy as a means of providing advice to covered entities about actions for compliance and to assist the courts in the interpretation of the statute.

Element 4. Enforcement actions. Where violations of the statute are present, effective enforcement involves measures to obtain corrective action or mediated settlement, followed by more punitive measures such as fines or litigation where violations are not easily or promptly resolved.

Element 5. Strategic litigation. Agency-initiated strategic litigation or amicus participation in litigation to implement enforcement is used where other measures have failed or to develop case law.

Element 6. Timely resolution of complaints. Effective resolution of complaints involves their timely processing. There should be expeditious internal processing where complaints must be referred to other agencies for investigation.

Element 7. Competent and credible investigative processes. Effective enforcement includes investigative processes and outcomes that are thorough, well-documented, and competent and thus credible to complainants and covered entities alike.

Element 8. Technical assistance for protected persons and covered entities. Technical assistance, offered in a variety of modes and formats, assists covered entities and informs those protected by the statute of their rights.

Element 9. Adequate agency resources. Resources include agency staff (investigators, attorneys, and others) adequate in number to the size of the compliance and complaint caseload; ongoing staff training provided on a regular basis; and data management systems and other support systems to enable efficient implementation of enforcement activities.

Element 10. Interagency collaboration and coordination. Appropriate collaboration and coordination affects enforcement where responsibilities are spread across different agencies or organizations, or where there are related activities or areas of jurisdiction.

Element 11. Outreach and consultation with the community. Regular outreach and consultation with the communities of persons protected by the statutes provide information about the key issues and problem areas of enforcement, how effectiveness is judged by consumers, and potential methods for improvement.

This report uses these elements to examine ADA enforcement. What enforcement should look like, specifically, varies by agency. Performance is examined qualitatively in each of these areas; where data permitted, quantitative indicators of performance are also included.

NCD hopes that the description of the performance of the federal ADA enforcement agencies and the recommendations for improving future performance presented in this report will serve as a useful roadmap for those agencies, NCD, the disability community, and leaders in the executive and legislative branches of the Federal Government to work together to ensure maximally effective enforcement of the Americans with Disabilities Act.

Endnotes

[1] 42 U.S.C. § 12206.

[2] National Council on Disability, Achieving Independence: The Challenge for the 21st Century, A Decade of Progress in Disability Policy, Setting an Agenda for the Future, July 26, 1996, p. 155.

[3] National Council on Disability, p. 155.

[4] The Americans with Disabilities Act of 1990, Public Law 101-336, 101st. Cong., 2nd sess., July 26, 1990.

[5] National Council on Disability, Equality of Opportunity: The Making of the Americans with Disabilities Act (1997).

[6] The Council was initially named the National Council on the Handicapped. Its name was changed to the National Council on Disability in 1988. Pub. L. No. 100-630, tit. II, § 205(a), 102 Stat. 3310 (1988).

[7] Pub. L. No. 98-221, tit. I, § 142, 98 Stat. 27 (1984) (codified as amended at 29 U.S.C. § 781).

[8] Toward Independence at 18.

[9] See id. at 19-21.

[10] See id., App. at A-3 to A-4.

[11] National Council on the Handicapped, On the Threshold of Independence 27-39 (Andrea H. Farbman, ed., 1988).

[12] The nature of such changes and the circumstances surrounding the Council's decision to agree to the changes is described in National Council on Disability, Equality of Opportunity: The Making of the Americans with Disabilities Act, 64-66 (1997).

[13] S. 2345, 100th Cong., 2d Sess., 134 Cong. Rec. 9379-9382 (1988); H.R. 4498, 100th Cong. 2d Sess.; see 134 Cong. Rec. 9599-9600 (1988) (statement of Rep. Coelho).

[14] For a description of changes, see Robert L. Burgdorf Jr., "Equal Members of the Community": The Public Accommodations Provisions of the Americans with Disabilities Act, 64 Temp. L. Rev. 551 & n.77, 556-559 (1991).

[15] S. 933, 101st Cong., 1st Sess., 135 Cong. Rec. S4978 (daily ed. May 9, 1989); H.R. 2273, 101st Cong., 1st Sess., 135 Cong. Rec. H1690 (daily ed. May 9, 1989).

[16] See S. Rep. No. 116, 101st Cong., 1st Sess. 101 (1989) [hereinafter Senate Report]. The changes made in the substitute bill are discussed at 135 Cong. Rec. S1073-74 (daily ed. Sept. 7, 1989) (statement of Sen. Harkin).

[17] 135 Cong. Rec. S10,803 (daily ed. Sept. 7, 1989).

[18] H.R. Rep. No. 485, 101st Cong., 2d Sess. pt. 2, at 22 (1990) (Committee on Education and Labor) [hereinafter Education & Labor Committee Report].

[19] Reported out on April 3, 1990, by a vote of 45 to 5. H.R. Rep. No. 485, 101st Cong., 2d Sess. pt. 1, at 46, 52 (1990) (Committee on Public Works and Transportation) [hereinafter Public Works & Transportation Committee Report].

[20] Reported out on March 13, 1990, by a vote of 40 to 3. H.R. Rep. No. 485, 101st Cong., 2d Sess. pt. 4, at 29 (1990) (Committee on Energy and Commerce) [hereinafter Energy & Commerce Committee Report].

[21] Reported out on May 2, 1990, by a vote of 32 to 3. H.R. Rep. No. 485, 101st Cong., 2d Sess. pt. 3, at 25 (1990) (Committee on the Judiciary) [hereinafter House Judiciary Committee Report].

[22] 136 Cong. Rec. H2638 (daily ed. May 22, 1990).

[23] H.R. Conf. Rep. No. 558, 101st Cong., 2d Sess. (1990); H.R. Conf. Rep. No. 569, 101st Cong., 2d Sess. (1990).

[24] 136 Cong. Rec. H4629 (daily ed. July 12, 1990).

[25] 136 Cong. Rec. S9695 (daily ed. July 13, 1990).

[26] See, e.g., Lowell P. Weicker, Jr., Historical Background of the Americans with Disabilities Act, 64 Temp. L. Rev. 387 (1991); Robert L. Burgdorf Jr., History, in A Bureau of Nat'l Affairs Special Report--The Americans with Disabilities Act: A Practical and Legal Guide to Impact, Enforcement, and Compliance at 9-31 (1990); Chai R. Feldblum, Medical Examinations and Inquiries Under the Americans with Disabilities Act: A View from the Inside, 64 Temp. L. Rev. 521, 523-31 (1991); A Bureau of Nat'l Affairs Special Report--The Americans with Disabilities Act: A Practical and Legal Guide to Impact, Enforcement, and Compliance 35-62 (1990); Nancy Lee Jones, Overview and Essential Requirements of the Americans with Disabilities Act, 64 Temp. L. Rev. 471, 472-75 (1991).