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Promises to Keep: A Decade of Federal
Enforcement of the Americans with Disabilities Act
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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202-272-2022 Fax
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
ACKNOWLEDGMENTS
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.
"UNEQUAL
PROTECTION UNDER LAW" SERIES
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.
EXECUTIVE
SUMMARY
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.
INTRODUCTION
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).
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