6
ENSHRINING THE ADA: HOUSE-SENATE CONFERENCE
AND THE SIGNING
On May 22, 1990, it seemed as if the battle to pass
the Americans with Disabilities Act was won. Both the Senate and
the House approved the bill with upwards of 90 percent majorities.
Moreover, rumors that President George Bush might veto the bill
because of the remedies conflict proved false. Although Bush hoped
to prevent the incorporation of punitive damages by amending the
Civil Rights Act of 1990, he continued to endorse the ADA and pledged
to sign it. However, the House and Senate had passed two different
bills, and the Chapman amendment posed a major negotiation challenge.
Throughout the deliberations of the 1989 ADA, most disability advocates
had remained at least somewhat optimistic that the bill would pass,
albeit only after surmounting significant obstacles. But the circumstances
of the conference proceedings caused some advocates to feel, for
the first time, that the ADA might unravel altogether.
The Chapman amendment posed a major negotiation
challenge, causing some advocates to feel, for the first time,
that the ADA might unravel altogether.
Conference Proceedings and Final Passage
On May 24, 1990, just two days after the House passed
the ADA, the House requested a conference with the Senate to resolve
all points of disagreement. The Speaker appointed 22 conferees representing
each of the committees and key participants in the ADA's passage.
Two weeks later, on June 6, the Senate met to consider the House's
substitute amendment for the Senate bill, S. 933. Senator Tom Harkin
(D-IA) asked for unanimous consent that the Senate object to the
House version of the ADA, rather than approve it, and request a
conference to settle differences.
Senator Jesse Helms (R-NC), however, introduced a
motion to instruct the Senate conferees to support the Chapman amendment
passed in the House. Reminiscent of the House floor debate, Senator
Helms argued that the reason the Chapman amendment was necessary
was that it represented "a matter of staying in business." Although
Helms acknowledged that there was currently no known evidence that
AIDS could be transmitted through food or drink or casual contact,
he said the livelihood of restaurants was dependent largely on "public
perception." If, said Helms, "the public is led to perceive that
there will be a health risk to those coming into the restaurant
and eating the food, rightly or wrongly, that business could be
destroyed." Helms cited examples of restaurants that closed because
people found out their employees had AIDS. He also listed many organizations
that supported the amendment, chief among them the National Restaurant
Association (NRA). The National Federation of Independent Business
(NFIB), in order to apply pressure on representatives, staked the
claim that the amendment was "a key small business vote." Moreover,
Helms argued that the Chapman amendment struck "a sensitive balance"
by requiring that employers transfer persons with AIDS to comparable
jobs of equal pay.
"Persons with disabilities ought to be judged
on the basis of their abilities; they should not be judged nor
discriminated against based on unfounded fear, prejudice, ignorance,
or mythologies."
--Senator Tom Harkin
Senator Harkin disagreed.
The amendment "strikes right to the heart and soul of the Americans
with Disabilities Act," he said. It violated the act's central thesis:
"that persons with disabilities ought to be judged on the basis
of their abilities; they should not be judged nor discriminated
against based on unfounded fear, prejudice, ignorance, or mythologies."
The Chapman amendment, said Harkin, was asking Congress "to codify
fear." Harkin noted that Secretary of Health and Human Services
(HHS) Louis Sullivan wrote a letter to House Speaker Thomas S. Foley
(D-WA) saying that policy based on misconceptions about, and fear
of, HIV would "only complicate and confuse disease control efforts
without adding any protection to the public health." William Roper,
who had left the White House to become Director of the Centers for
Disease Control (CDC), wrote that there was no reason for a person
with HIV or AIDS to be prohibited from handling food, unless he
or she had another infection for which any worker would be restricted
from food service. Harkin requested that these and two dozen other
letters opposing the amendment be printed in the Congressional
Record. Many senators joined Harkin in opposing the Chapman
amendment as well.
Majority Leader George J. Mitchell (D-ME) attempted
to counter Senator Helms by introducing a motion to table, and thereby
suspend, Helms's motion. Mitchell's motion came to an immediate
vote, but only 40 senators supported it. Democrats counted for 33
of the affirmative votes, but more than a third of the Democrats
joined Republicans to oppose the motion. Since the vote on Mitchell's
motion illustrated Senate opinion on the Chapman amendment, the
Senate then agreed to Helms's motion by a voice vote and appointed
conferees.
House and Senate conferees and their staffs reviewed
81 points of dispute. Throughout the House deliberations, Robert
Silverstein and others from the Senate side had worked closely with
House members and staff to ensure that the Senate agreed with the
changes the House made. Consequently, House and Senate staff were
able to develop prompt agreements on 79 of the 81 disputed issues.
In each case (and with amendments in a few cases), the Senate conferees
con ceded the House position.
Although staff swiftly resolved most differences,
Robert Silverstein described the time between House passage and
final approval of the ADA as "the month from hell."
Although staff swiftly
resolved most differences, Silverstein described the time between
House passage and final approval of the ADA as "the month from hell."
This was because staff and members were at a complete impasse on
two issues: the Chapman amendment and congressional coverage by
the ADA. Although House and Senate sponsors hoped to get the ADA
to the president's desk before July 4, the conflicts could not be
resolved that quickly.
House and Senate conferees met on June 25, 1990, with
Senator Edward M. Kennedy (D-MA) presiding. Congressman Hoyer was
the leading conferee and key negotiator for the House; Senator Harkin
joined Senator Kennedy as the leading conferees for the Senate.
Congressional coverage was the easier of the two disputed areas,
for which there were two separate issues. The first concerned who
had the power to enforce the application of the ADA to Congress.
The original Senate provision had been introduced late in the floor
debate on September 7, 1989, as a single sentence of intent, rather
than a detailed proposal. Largely at the insistence of Congressman
Hoyer, the House had endorsed the Senate's proposal. The House had
also clarified the section by specifying that administrative authority
would be exercised by the House of Representatives. At the Conference,
however, Senate conferees bristled at the thought of "the other"
chamber having executive power over the Senate. Conferees thus agreed
to have the Senate be responsible for exercising administrative
authority over itself. The second point of discussion was whether
individuals alleging discrimination by either the House or Senate
would have a private right to action--the ability to sue a senator
or representative in district court. Conferees decided that persons
with disabilities should have the same remedial options available
with respect to Congress as they did with other entities covered
by the ADA. The conference thus upheld private right to action.
Debate over the Chapman amendment was much more contentious,
and conferees devoted hours to discussing it. The arguments for
and against the amendment, by this time, were clear. The difficulty
for the conferees was that, on one hand, a majority of members in
the House voted for the amendment. And in the Senate, a majority
of senators indirectly voiced their support for the amendment. Going
against the majority opinion of both Houses might endanger the bill.
On the other hand, inclusion of the Chapman amendment threatened
to kill the bill. The disability community took a firm and united
stand that they would withdraw their support from the bill if the
amendment stayed in. There simply could not be a viable ADA if the
disability community, which the law was designed to assist, opposed
it. Moreover, the disability community's chief congressional supporters
stood with the disability community.
Senate and House conferees, independently, had to
approve decisions for each area of dispute. As it became increasingly
clear that the Chapman amendment not only contradicted basic premises
of the ADA but also might mean the end of the ADA, some conferees
opted to save the bill by rejecting the Chapman amendment, in spite
of their sympathy to it. For House conferees, it was a close vote.
Among the 22 House conferees, opponents of the amendment won by
only two votes, 12 to 10. Senate conferees also voted to reject
the Chapman amendment.
On the following day, June 26, the conferees prepared
and presented a conference report that listed each point of disagreement
and how it had been resolved. It might seem that the ADA was finally
secure now that delegations from the House and the Senate agreed,
in entirety, about a version of the ADA. But conferees had taken
the bold action of ruling against their colleagues and the conference
report still had to be passed by both chambers.
As it became increasingly clear that the Chapman
amendment not only contradicted basic premises of the ADA but
also might mean the end of the ADA, some conferees opted to save
the bill by rejecting the amendment.
Although the general
public remained largely unaware of the conflict that was brewing,
since there was virtually no press coverage in the six weeks between
House approval and final passage, the disability community and the
business community were lobbying aggressively. Some members of the
disability community thought it was best to accept the Chapman amendment
in order to save the rest of the ADA. The vast majority of advocates,
however, insisted that the disability community stick together.
Consequently, they worked closely with AIDS organizations to oppose
the Chapman amendment. On one occasion, around the Fourth of July
weekend, the Human Rights Campaign Fund, a lobbying group for the
gay and lesbian community, organized a public relations coup. As
the disability community had done throughout congressional deliberations,
they prepared position papers to present to members. To distribute
their information this time, however, they used brown lunch-bags
marked: "The National Restaurant Association is Out to Lunch on
the Chapman Amendment." And at a press conference announcing the
"Out-to-Lunch" campaign, Wright said the disability community would
pull out its support of the ADA if the Chapman amendment was part
of the bill.
A powerful demonstration of the disability community's
unity occurred later that day in a meeting at the White House. At
either end of a table in the Roosevelt Room sat Pat Wright and Boyden
Gray. Around the table were other members of White House staff and
leaders of the disability community, including representatives from
NCIL and UCPA. Gray emphasized that the disability community had
secured much if not most of its aims for the ADA and that compromise
was a normal part of the legislative process. Wright, however, knowing
that President Bush badly wanted to see the legislation passed,
reaffirmed the message that the ADA coalition would withdraw its
support of the ADA if the Chapman amendment was part of the bill.
Around the table, other disability advocates weighed in, one-by-one,
describing the Chapman amendment as a horrendous violation of the
principles of the ADA. Accordingly, they urged the White House to
intervene on their behalf and pass the ADA without the Chapman amendment.
The Chapman amendment:
"I-t a-i-n'-t c-i-v-i-l.
A-n-d i-t a-i-n'-t r-i-g-h-t."
--Bob Williams
The session reached a
climax when Bob Williams, who sat next to Gray, offered his words.
Williams was sitting in a wheelchair that he used because of cerebral
palsy. To speak more clearly he used a lap board covered with letters
and symbols, which enabled him to point and spell out sentences
one letter at a time. Someone standing by spoke each letter or word.
Williams echoed the sentiments of the others in the room. But he
personalized the issue with his own experiences. Williams said the
Chap man amendment struck a personal chord because it concerned
restaurants. Among Williams's earliest childhood memories were experiences
of being turned away from restaurants because of his cerebral palsy.
Restaurant operators always insisted that they would be happy to
serve him and his parents and understood that he posed no threat.
But they said Williams's presence bothered other people and thus
interfered with business. Williams concluded his remarks with an
eloquent and powerful statement of the disability community's understanding
of the Chapman amendment: "I-t a-i-n'-t c-i-v-i-l. A-n-d i-t a-i-n'-t
r-i-g-h-t." About midway through this declaration, the rest of the
disability advocates anticipated the subsequent letters and thus
began saying each letter in unison.
The unity of the disability community on behalf of
persons HIV/AIDS moved Tim McFeely to tears. It was "incredibly
moving," he said. McFeely was the Executive Director of the Human
Rights Campaign Fund and the only person in attendance representing
the AIDS community. ADA advocates had made a commitment more than
a year before that they would stand together: one for all and all
for one. And while they agreed that they could be flexible with
time lines, they committed to being steadfast on principles. The
words spoken that day demonstrated to McFeely that the commitments
made by people with disabilities were deep and abiding.
In addition, the disability community illustrated
its opposition to the Chapman amendment by developing technical
analyses of the food handling issue. For example, Robert Burgdorf,
the original author of the ADA, wrote a House staff member on the
constitutionality of the Chapman amendment. The thrust of the amendment,
Burgdorf explained, was directed primarily at individuals who did
not pose a threat to society. Excepting a group of persons as a
class, however, according to the Constitution, had to be based on
"legitimate" government interests. Burgdorf concluded: "It is blatantly
irrational for Congress to rely upon . . . prejudicial attitudes,
ignorance, myths, fears, misapprehensions, and reflex reactions
about contagiousness, . . . as the basis for an exception from the
ADA's nondiscrimination mandate." Singling out persons who did not
pose a threat to society, he said, "has no rational relation to
any legitimate governmental objective" and violated " the underlying
principles, premises, and requirements of the very piece of legislation
it is attached to."
The business community was similarly active in demonstrating
its support of the Chapman amendment. To counter the efforts of
disability organizations, dozens of business organizations sent
letters to members of Congress urging support of the Chapman amendment.
Chief among them was the NRA. Its Senior Director of Government
Affairs, Mark Gorman, had wrote repeated letters urging members
of Congress to hold the line on the Chapman amendment and not allow
it to get stripped in conference or on the floor of either house.
The Senate was the first to take up the conference
report, amidst lobbying from the disability and business communities,
on July 11, 1990. Before the Senate floor deliberations began, two
conflicting amendments to the conference report were circulating.
One was authored by Senator Helms. He had originally planned to
introduce an amendment that would send the report back to conference
and insist that the conferees put the language of the Chapman amendment
into the report. That very day, however, Senator Hatch developed
a rival amendment that caused Helms to redraft his own amendment.
Senator Hatch's amendment represented an important
shift in his position on the food handling issue. In the conference
meeting, Hatch had argued forcefully that the Chapman amendment
should be retained in the bill. He disagreed with those who thought
the issue should be dropped, suggesting that they did not realize
"how electric" the issue was. He also doubted whether the House
of Representatives or the White House would accept the ADA without
some attention to the issue Congressman Chapman had raised. However,
after the conference meeting Silverstein pursued Hatch to discuss
the amendment. Silverstein and Hatch had worked together on disability
policy for many years, and both agreed that the disability policy
should not, generally, encourage business decisions to be made on
unfounded fears. Silverstein, however, emphasized to Hatch that
it was dangerous to use a different standard for a single constituency
of the disability community--persons with contagious or communicable
diseases. Supporting the Chapman amendment, said Silverstein, would
potentially undo years of Hatch and Silverstein's work in trying
to unite the disability community and develop holistic policy. By
allowing prejudice to prevail in one area, it would create an internal
chasm within the disability community. This meeting had a crucial
impact on Hatch: he called it "the key to my own evolution on the
Chapman amendment."
This discussion also prepared the senator for an encounter
with disability advocates the morning of the July 11 floor deliberations.
That morning Wright went looking for Senator Hatch. She figured
the best place to find him was in the hallway between the Senate
chamber and the Majority Leader's office. But that area was restricted
to members of Congress, their staff, and their guests. Accordingly,
Wright brought Michael Iskowitz, who was Senator Kennedy's chief
staff member regarding AIDS, to gain access to the area. Also with
her was Chai Feldblum, who was prepared to translate an agreement
into proper legal form. After waiting for some time, the advocates
found Senator Hatch. They urged the senator not to allow fear and
prejudice to prevail. Rather, they argued, let available medical
evidence be the deciding factor. They also made an impassioned plea
that the bill was on its way to dying unless Senator Hatch helped
resolve the conflict--only he had the stature to shoulder a compromise.
Senator Hatch's views had been changing since the
conference meeting; now he agreed with the disability advocates
that the Chapman amendment, as written, should not be part of the
ADA. Yet he still thought the issue needed to be taken seriously
and resolved in a way that could win broad support. Accordingly,
he searched for, and found, a compromise. Science would be the linchpin.
On an annual basis, proposed Hatch, the Secretary of HHS would prepare
a list of those communicable and contagious diseases that were knowingly
able to be transmitted through food handling. Then, restaurant operators
would be able to insist that anyone with a disease on that list
could be removed from food handling positions. The ADA, moreover,
would not preempt any local laws concerning food handling.
Senator Hatch called on Nancy Taylor from his staff,
who was nine-months pregnant, to craft the language. Hatch, Taylor,
Wright, Feldblum, and Iskowitz then worked together to scrawl the
agreement on a piece of paper, and prepared to introduce it to the
Senate as an alternative to the Helms amendment. It was a major
breakthrough. "That could have been the end of the ADA," said Wright.
Helms, predictably, was irate. Feldblum recalled passing Helms in
the hall later that morning: he was walking briskly with an unidentified
sheet of paper, red with anger.
"I think if we would rely more on science and
a little less on fears and misperception we would be better off
as a society, as a nation, and there would be less prejudice."
--Senator Orrin Hatch
Senator Hatch had come up with "another miracle."
--Senator Dave Durenberger
Later that day in the
Senate chamber, after several senators tried unsuccessfully for
two hours to reach a consensus on food handling and the Hatch-Helms
proposals, Majority Leader Mitchell concluded that the conflict
could only be settled in open floor debate. Senator Hatch worked
with Senator Harkin to manage the deliberations. They expected the
Senate to approve the vast majority of the conference report. Besides
the Chapman amendment, only the issue of congressional coverage
was contested, concerning which Senator Wendell H. Ford (D-KY) intended
to recommit the ADA to conference. According to Harkin and Hatch's
strategy, Hatch would introduce his "perfecting amendment" after
Ford submitted his motion regarding congressional coverage. Following
debate on the Hatch amendment, the Senate would lay the amendment
aside and allow Senator Helms to introduce his own "perfecting amendment."
After consideration of the Helms amendment, the Senate would proceed
to vote in order: first on the Helms amendment, then on the Hatch
amendment, and finally on the Ford motion. No other motions or amendments
would be allowed.
As an early application of the ADA, Majority Leader
Mitchell asked unanimous consent to have the Senate floor debate
translated into sign language, which had never been done before.
As planned, the issue of congressional coverage came up first. The
night before, on July 10, the Senate had passed legislation concerning
application of all civil rights laws to the Senate, and rejected
private right to action: only administrative remedies, through internal
review, were allowed. Senators were thus concerned about the ADA
being inconsistent with other civil rights laws. Accordingly, Senator
Ford introduced his motion to send the ADA back to conference and
instruct the conferees to exclude private right to action for the
Senate. Although Senators Charles E. Grassley (R-IA) and Tom Harkin
objected that people should have a private right to action to remedy
Senate violations of the ADA, they agreed to let the motion stand.
Senator Hatch then introduced his amendment to Senator
Ford's motion, and senators rehashed the arguments for and against
the Chapman amendment yet another time. Hatch emphasized that his
amendment "places a premium on science" as the basis for decision-making.
"I think if we would rely more on science and a little less on fears
and misperception we would be better off as a society, as a nation,"
explained Hatch, "and there would be less prejudice." Senator Dave
Durenberger (R-MN) said Hatch had come up with "another miracle";
he hailed the ability of Hatch to fulfill the role of intermediary.
Senator Helms, however, said the Hatch proposal would gut the Chapman
amendment and "render it totally nugatory." Because public health
experts such as HHS Secretary Sullivan and CDC Director Roper affirmed
that AIDS could not be transmitted through food handling, restaurant
operators would not be allowed to discriminate against them.
To counter Senator Hatch's amendment, Senator Helms
modified his original amendment and introduced one with language
virtually identical to the Hatch amendment. The main difference
was that instead of the HHS Secretary posting a list of diseases
that are transmitted through food handling, as the Hatch amendment
specified, the Secretary would post a list of diseases that may
be transmitted through food handling. Thus, anyone who had a disease
that might possibly be transmitted through food handling, even if
there was no evidence to prove it, could be barred from food handling
positions.
When the time came to vote, the Senate decisively
rejected the Helms amendment, 61 to 39, with 78 percent of Democrats
opposing the amendment and 60 percent of Republicans supporting
it. The Senate then immediately voted on the Hatch amendment and
approved it 99 to 1: Senator Helms stood alone in opposition. Subsequently,
after a clarifying colloquy between Senators Hatch and Dole, the
Senate approved the Ford motion, as amended, by a voice vote.
The deliberative process "perfected" the ADA
and made it "an excellent piece of legislation."
--Congressman Steny Hoyer
The following day, on
July 12, conferees met to review the Senate proposals. They accepted
the Senate instructions concerning both food handling and congressional
coverage and submitted their report that same day. Later that afternoon,
the House of Representatives met to consider the second version
of the conference report. Once again, they first had to accept a
rule structuring debate. But this time there was little dispute:
86 percent of members voted in favor of the closed rule. Afterward,
Congressman Hoyer congratulated the House for its bipartisan collaboration.
The deliberative process, he said, had "perfected" the ADA and made
it "an excellent piece of legislation." All House members, he said,
should be "proud to say" that they had played a part in the Congress
that "extended to" Americans with disabilities "the welcome sign
. . . to come into our society, . . . to have the ability to work
and support themselves and their families, . . . to ride on our
transportation systems, . . . to come into our stores, and our banks,
and our doctors" offices, and fully avail themselves of the opportunities
of American society."
The only real issue left for House consideration was
the Chapman amendment. Many members argued that the Hatch amendment
did not adequately fulfill the purpose of the Chapman amendment:
persons with AIDS would still be able to hold food handling positions.
Accordingly, Congressman William E. Dannemeyer (R-CA) submitted
a motion to recommit the conference report back to conference yet
again, with instructions that House conferees insist that the Chapman
amendment be accepted. This time, however, there were not enough
votes in the House. The vote split along party lines, with 77 percent
of Democrats opposing the amendment and 75 percent of Republicans
supporting it. But, overall, 55 percent of the House voted to reject
adding the language of the Chapman amendment. The House immediately
voted on the entire bill that evening, and members passed the ADA,
for the final time, with near unanimity. More than 90 percent of
the members voted in favor of the ADA.
Although many in the disability community hoped that
the Senate could take its final vote that night, the Senate waited
until the following day, July 13. It was an emotional occasion.
Similar to Congressman Hoyer, Senator Harkin praised his fellow
senators for the spirit of bipartisan collaboration that produced
a bill with a broad base of support. And he was especially complimentary
of the disability community. "It may be raining outside," he said,
"but this is truly a day of sunshine for all Americans with disabilities."
Harkin wanted to communicate directly with his brother, who taught
Harkin, "at a very early age, that people with disabilities could
do anything that they set their minds to do and that people should
be judged on the basis of their abilities . . . not on the basis
of their disabilities." Accordingly, Harkin signed to his brother
that this was the proudest day of his sixteen-year career in Congress--the
ADA opened doors to all Americans with disabilities and promoted
an end to fear, ignorance, and prejudice.
The floor deliberations brought Senator Hatch to tears.
He remarked how "senseless discrimination, intended or not," had
"subjected persons with disabilities to isolation and robbed America
of the minds, the spirit, and the dedication we need to remain a
competitive force in a worldwide economy." Hatch also extended his
appreciation to scores of people who contributed to the ADA's passage.
Many more senators followed in proclaiming the virtues of the ADA
and crediting various contributors.
When the Senate finally voted on the conference report,
it passed the ADA with margins almost identical to those in the
House: 93 percent of the senators voted in the affirmative. The
ADA had made it through Congress. The final step in making the ADA
public law was a signature from the President of the United States,
George Bush.
The White House Signing Ceremony
As early as May 1, 1990, President Bush told persons
with disabilities that there would be "a proud bill-signing ceremony"
for the Americans with Disabilities Act. Many in the disability
community hoped this meant a grand celebration of thousands of people
uniting to celebrate the American dream. Virginia Thornburgh, for
example, whose husband was the attorney general, suggested that
the White House sign the bill at the Lincoln Memorial, where she
proposed as many as 100,000 people could attend. She hoped the ADA
would be viewed as an initiative that was good for all Americans
and thus wanted persons with and without disabilities to be welcome.
She advised White House staff that a celebratory platform should
include members of Congress from both parties, Cabinet members,
and representatives from major sectors of society. Such an event
could attract the attention of international media and promote the
improvement of the lives of persons with disabilities around the
world.
Shortly after the Senate passed the ADA on July 13,
however, rumors spread that the Act would be signed in the White
House's East Room, which could seat no more than 220 people. Apparently,
White House staff feared that the summer heat might cause medical
problems for persons with disabilities if the ceremony was held
outdoors. But people from the disability community protested when
they heard the news. Congressional sponsors joined in advocating
a "people's signing ceremony" comparable to the democratic principles
of the ADA, where thousands could attend. Finally, due to the efforts
of such people as Virginia Thornburgh, Boyden Gray, Justin Dart,
and Evan J. Kemp, Jr., the White House announced, on July 16, that
it would hold a ceremony on the South Lawn of the White House. The
proposed time was 10:00 a.m. on July 26, 1990, rain or shine.
That left Bonnie Kilberg, Deputy Assistant to the
President from the Office of Public Liaison, just ten days to plan
the event and prepare an invitation list. To determine who should
attend the gala event, Kilberg worked predominantly with colleague
Shiree Sanchez; Phil Calkins, an executive with the EEOC; Sharon
Mistler; Evan Kemp; and disability advocates Justin and Yoshiko
Dart, who supplied thousands of names. In addition to Washington-area
supporters of the ADA, Kilberg included hundreds of people with
disabilities from around the country on the list. By July 18, Kilberg
had drafted an invitation. People were to arrive at the White House
gate at 9:00 a.m. for admittance, with photo identification in hand.
Seven airlines and seven area hotels agreed to give visitors significant
discounts.
"From ancient times to today we celebrate the
breaking of the chains holding your people in bondage." The ADA
provides "new access to the Promised Land of work, play and service."
--Reverend Harold Wilke
Roughly 3,000 persons
with and without disabilities gathered on the White House South
Lawn on the morning of July 26. It was the largest signing ceremony
ever held by the White House. After the U.S. Marine Band played
the "Battle Hymn of the Republic" and "The Stars and Stripes Forever,"
President and Mrs. George Bush and Vice President Dan Quayle walked
to the stage to the tune of "Hail to the Chief." There they joined
EEOC Chairman Evan Kemp, National Council on Disability Chairwoman
Sandra Parrino, disability rights advocate Justin Dart, Reverend
Harold H. Wilke, and two sign language interpreters. Conspicuously
absent from the platform were any of the ADA leaders from Congress:
among them Senators Harkin, Kennedy, Weicker, Hatch, Durenberger,
and Robert Dole (R-KS); and Congressmen Tony Coelho (D-CA), Steny
Hoyer, Norman Y. Mineta (D-CA), Major R. Owens (D-NY), Steve Bartlett
(R-TX), and Hamilton Fish, Jr. (R-NY).
As suggested by Virginia Thornburgh, Reverend Wilke
opened with an invocation--reputedly the first ever offered at a
bill signing ceremony. "From ancient times to today we celebrate
the breaking of the chains holding your people in bondage," Wilke
prayed. The passage and signing of the Americans with Disabilities
Act was a new occasion for celebration, he said, which provided
"new access to the Promised Land of work, play and service."
After Reverend Wilke's interfaith prayer, Kemp introduced
the president. He praised the efforts of persons in Congress, the
Bush administration, and the disability community, who "worked tirelessly
to develop this civil rights bill." Then he pointed to President
Bush, without whose "steadfast support . . . this bill would not
have become law." He likened President Bush to Abraham Lincoln for
his foresight and introduced him as "the foremost member of the
disability community." "Welcome to every one of you, out there in
this splendid scene of hope," began President Bush, as the crowd
interrupted him with applause for the first of 20 times. "This is,
indeed, an incredible day," he said, especially for those who worked
to pass the ADA. In consideration of the vast numbers of participants,
Bush identified those who had personally helped him. He mentioned
Justin Dart, Boyden Gray, Evan Kemp, William Roper, Sandra Parrino,
and Robert Dole. Bush also praised the contributions of disability
organizations and the collective efforts of 43 million Americans
with disabilities, who "have made this happen." (See Appendix G
for the complete text of Bush's remarks.)
The ADA is the world's first "declaration of
equality" for persons with disabilities. "Every man, woman and
child with a disability can now pass through once-closed doors
into a bright new era of equality, independence and freedom."
--President George Bush
President Bush likened
the signing of the Americans with Disabilities Act to Independence
Day, which had been celebrated just three weeks earlier. The ADA
was the world's first "declaration of equality" for persons with
disabilities, he said. Because of it, "every man, woman and child
with a disability can now pass through once-closed doors into a
bright new era of equality, independence and freedom." It offered
persons with disabilities the basic guarantees of "independence,
freedom of choice, control of their lives, the opportunity to blend
fully and equally into the right mosaic of the American mainstream."
This was important, said Bush, because if America was to be "a truly
prosperous nation," everyone within it had to prosper. To those
who expressed reservations about the ADA, Bush emphasized that the
Act was carefully crafted to contain costs. He added that the ADA
could help answer businesses" request for additions to the working
force. As an alternative to spending $200 billion a year to keep
persons with disabilities dependent on the government, Bush urged
that people give them the opportunity to "move proudly into the
economic mainstream of American life."
President Bush concluded his remarks with an additional
analogy to an event not yet a year old: the fall of the Berlin Wall.
Signing the ADA represented taking "a sledgehammer to another wall,"
said Bush, "one which has, for too many generations, separated Americans
from the freedom they could glimpse, but not grasp." He rejoiced
in the fall of this barrier, affirming that "we will not tolerate
discrimination in America." Finally, as he lifted his pen to sign
the ADA to the applause of those surrounding him, at 10:26 a.m.,
Bush proclaimed: "Let the shameful wall of exclusion finally come
tumbling down." With his signature, the long-fought battle to make
the ADA public law reached its climax.
President Bush signed four copies of the ADA, each
with a different pen. He gave three of the pens to Dart, Kemp, and
Parrino, saving the fourth for Attorney General Thornburgh. He then
took a fifth pen from his pocket to present to Reverend Wilke, who,
because he had no arms, promptly and deftly accepted the pen with
his foot.
As members of Congress, the Bush administration, the
disability community, and others in the audience shouted, cheered,
smiled, cried, and embraced, President Bush, the First Lady, and
Vice President Quayle worked through the crowd to regain entrance
to the White House. About a half an hour later, people moved across
the street to Ellipse Park for a colossal picnic of fried chicken
and soda. Music played in the background. For dessert, people found
cakes adorned with the faces of President Bush, Senator Harkin,
and Congressman Hoyer. Dozens of advocates in and out of government
presented remarks from a makeshift platform. Media swarmed the grounds
for interviews and photographs. Later in the afternoon, as the temperature
reached 92 degrees, the crowd dispersed. At 5:00 p.m., however,
hundreds gathered for an additional celebration in the Hart Senate
Office Building sponsored by Justin and Yoshiko Dart, where wine
and a seafood buffet were served. There were more hugs, more kisses,
and more speeches. They had much to be proud of. The battle, finally,
was won.
EPILOGUE
The Americans with Disabilities Act of 1990, as so
many people have said, was truly landmark legislation. It promoted
an America in which all persons have the right to participate as
valuable citizens. In the areas of employment, public services,
public accommodations, and telecommunications, the ADA took steps
to break down barriers that stood in the way of persons with disabilities
and prevented them from reaping the benefits of our society and
offering their own contributions.
It should be clear that the ADA is not the starting
point of United States disability policy. The ADA stands on the
legal foundation of the "twin pillars": the Civil Rights Act of
1964 and the Rehabilitation Act of 1973. The former provided the
philosophical foundation, the general principle of nondiscrimination.
The latter offered a framework for applying nondiscrimination to
persons with disabilities. These two legislative initiatives represent
two streams of policy: civil rights and disability rights. With
respect to each, elements of the ADA represent a portion of a continuum
as well as a unique departure.
The ADA stands on the legal foundation of the
"twin pillars": the Civil Rights Act of 1964 and the Rehabilitation
Act of 1973.
The ADA is similar to
other civil rights laws in that it provides the same basic protections.
Making employment decisions according to circumstances that do not
have a bearing on actual performance is simply wrong. All individuals
must have an equal opportunity to partake of such social services
as public transportation. No one should be denied access to places
of public accommodation. All must be able to share in our nation's
communication system.
Applying these principles to persons with disabilities,
however, required unique attention. By the end of the 1980s, state
and federal laws had established a central principle of the ADA:
that in granting civil rights to persons with disabilities, equal
treatment alone is inadequate. Truly equal opportunity for people
with disabilities required that governments and businesses take
proactive steps to provide opportunity. This might mean adding a
lift to a bus, providing an employee with an amplified telephone
headset, ramping a few steps, installing braille signs, or allowing
an individual to modify his or her work schedule. Unlike providing
civil rights to minorities or to women, however, bestowing civil
rights upon persons with disabilities could therefore require governments
and businesses to spend money. Unique among civil rights laws, this
meant that disability rights had to be balanced against the fiscal
responsibility of society.
There could have been no successful and meaningful
ADA without a ground swell of people who demonstrated what happened
in the absence of significant legal protections and told positive
stories of how legislative initiatives helped improve their lives.
In the context of disability
rights legislation, the various provisions of the ADA are not unique.
In fact, virtually every one had been implemented somewhere in the
nation by a state or local government in the form of new laws and
constitutional amendments. The ADA built on these provisions as
well as on federal statutes and court cases. The ADA was nonetheless
unique amidst this growing nationwide recognition of disability
rights in its comprehensive application to the entire nation and
the private sector. Pat Wright likens disability policy before the
ADA to Swiss cheese covering a map of the United States: there were
many holes where there were little to no civil rights protections
for persons with disabilities. Disability policy under the ADA,
by contrast, is more like a piece of American cheese: it covers
the entire nation thoroughly and uniformly. Every new building must
follow accessibility guidelines. Every new transit bus must be accessible.
No place of public accommodation can willfully exclude persons with
disabilities. Every state must provide a telecommunication relay
service. No employer can overlook an applicant because he or she
required a reasonable accommodation.
These two unique aspects of the ADA--civil rights
that had financial implications and comprehensive application to
the public and private sectors--are what made the ADA's passage
so difficult. The overwhelming margins in both the House and the
Senate with which the ADA was finally approved mask how challenging
it was to work the bill through Congress and acquire a signature
from the president. By the fall of 1989, it was evident that an
ADA would pass in some form, but the provisions it would contain
were still very much contested. Only through intense efforts were
disability rights advocates able to achieve their goals.
No single factor alone can account for the ADA's success.
Rather, a whole host of factors worked in its favor. First and foremost,
the ADA is a tribute to the growth and organization of the disability
rights movement. Through such pivotal developments as the protests
to issue the Section 504 regulations and the nationwide outcry against
President Ronald Reagan's Task Force on Regulatory Relief, the disability
community asserted itself and became a political force to be reckoned
with. On the state and local levels, persons and parents of persons
with disabilities fought aggressively to obtain for themselves and
their children decent education and employment opportunities. Students
on college campuses organized to demand greater accessibility. Centers
for independent living built systems of community support and helped
people with disabilities understand and exercise their rights. Disability-specific
and cross-disability organizations advocated for state and federal
laws that became building blocks for the ADA. And people with disabilities
demonstrated a willingness to take to the streets and risk arrest
to bring public attention to the problems they faced. There could
have been no successful and meaningful ADA without a ground swell
of people who demonstrated what happened in the absence of significant
legal protections and told positive stories of how legislative initiatives
helped improve their lives.
A crucial factor that helps explain the ADA's
positive reception in Congress was the extent to which the ADA
drew on ideological justifications from both the left and the
right.
In addition to providing
sheer numbers to demand passage of the ADA, the disability rights
movement produced extraordinarily effective leaders. Disability
rights advocates such as Pat Wright, Ralph Neas, Justin and Yoshiko
Dart, Liz Savage, Paul Marchand, Marilyn Golden, and Lex Frieden
were simply remarkable. The legal expertise of people such as Arlene
Mayerson, Chai Feldblum, Robert Burgdorf, Jim Weisman, David Capozzi,
Timothy Cook, Karen Peltz-Strauss, and Bonnie Milstein was indispensable.
Scores of organizations and their members contributed countless
hours to the ADA campaign. Over the course of the 1980s, the disability
community proved that it could stand its own ground in the court
room and in the halls of Congress. Moreover, the disability community
effectively formed crucial relationships with members of Congress
and the White House. By the time the ADA emerged on the national
scene, people were in place to move it.
The ADA would have made little headway were it
not for the early and consistent support from the nation's highest
office.
The success of the ADA
is due in no small part to the American civil rights heritage. The
Civil Rights Act of 1964 provided not only a legal principle that
could be extended to other constituencies, but also a model for
civil protest to achieve political goals. Although during the 1970s
and 1980s there were attempts to roll back some of the achievements
of the civil rights movement, the basic notion that no individual
should be denied basic civil rights endured. Because the disability
community successfully presented the ADA as a civil rights initiative,
few could afford to take the position of opposing the ADA outright.
Indeed, a crucial development in the ADA's success was that even
those organizations that worked to tighten and refine the ADA in
Congress called themselves the Disability Rights Working Group.
The disability community forced opponents to fight the battle on
its own terms: opponents had to explain why disability advocates"
proposals should not be implemented. Forming a tight bond with Neas
and the Leadership Conference on Civil Rights (LCCR) was essential
for that achievement.
More than any other single player, the role of President
Bush cannot be overestimated. The ADA would have made little headway
were it not for the early and consistent support from the nation's
highest office. Of course, the president did not do the detail work:
there were plenty of others to assume that role. But, by speaking
out on behalf of the ADA, Bush made passage more certain. In Congress,
Democrats were primarily responsible for pushing the ADA aggressively
forward. The president's support brought people to the table to
work out a bipartisan compromise bill that could attain the support
of the business community as well as that of the disability community.
The ADA's progress in Congress and the administration
was dependent largely on the roles of key individuals who were extraordinarily
dedicated to the objectives of the ADA. Part of this was due to
personal experience, either from having a disability or through
a relative's disability. Senator Tom Harkin's (D-IA) brother was
deaf. Senator Edward M. Kennedy (D-MA) had a son who lost a leg
to cancer and a sister with mental retardation. Senator Orrin G.
Hatch's (R-UT) brother-in-law was paralyzed from polio. Senator
Robert Dole (R-KS) acquired partial paralysis from a war injury.
Senator Lowell P. Weicker, Jr. (R-CT) had a son with Down's Syndrome.
Congressman Tony Coelho (D-CA) had epilepsy. Congressman Steny H.
Hoyer's (D-MD) wife had epilepsy. These and other personal encounters
with disability made the ADA vitally real to many members of Congress.
The ADA's progress in Congress and the administration
was dependent largely on the roles of key individuals who were
extraordinarily dedicated to the objectives of the ADA.
The same was true for
the Bush administration. President George Bush had a daughter who
died from leukemia, a son with a learning disability, an uncle with
quadriplegia, and a son whose cancer required a plastic ostomy bag.
Attorney General Richard Thornburgh's son had a traumatic head injury.
EEOC Chairman Evan J. Kemp used a wheelchair because of a form of
muscular dystrophy. White House negotiator Robert Funk had part
of one leg amputated due to a disease similar to leprosy and tuberculosis.
These and other members of Congress and White House officials approached
the ADA with a passionate desire to see not only their own and their
children's lives improved, but those of the entire population of
Americans with disabilities.
One of the key factors of the ADA's success was, as
President Bush said, the desire of members of Congress and representatives
of the Bush administration, "on both sides of the political aisle,"
to "put politics aside" and "do something decent, something right."
This is seen most clearly in the negotiations between the Senate
and the White House during the summer of 1989 and the member-to-member
negotiations of Congressmen Steny Hoyer and Steve Bartlett (D-TX).
Although working out the details was frequently intense, most Washington
political leaders supported the basic goals of the ADA and wanted
to see people with disabilities enter the mainstream of American
life. This cooperation was critical. Voting on the ADA "would have
come out as deep partisan splits," said Chai Feldblum, "if people
had not committed to engage in a negotiation process and if the
negotiation process did not have effective people in them."
Another crucial factor that helps explain the ADA's
positive reception in Congress was the extent to which the ADA drew
on ideological justifications from both the left and the right.
Historically, the disability community has had a powerful Democratic
contingency because of its insistence on governmental support and
its identity as a disadvantaged class. But the ADA entered Congress
at the behest of a Republican federal agency: the National Council
on the Handicapped (NCD). NCD's work in reviewing federal disability
programs, identifying problems, and making legislative proposals,
among them passage of equal opportunity laws, rooted the ADA in
principles of independence, personal choice, and fiscal responsibility.
By presenting the ADA as a way to reduce dependence on government,
the NCD helped win over people who might otherwise be reluctant
to extend civil rights protections.
Voting on the ADA "would have come out as deep
partisan splits if people had not committed to engage in a negotiation
process."
--Chai Feldblum
"I'm convinced that maybe more than anything
else I ever worked on, people were motivated primarily by what
they perceived as the right thing to do."
--Ralph Neas
There was a certain inherent
righteousness to the ADA. How could one argue with the desire of
people who wanted simply to become part of the American mainstream
and to share in the fruits of society that others took for granted?
"What's wrong with a person trying to work instead of securing welfare?"
asked Wright. People involved in the ADA's passage recognized that
the cause was just. "I'm convinced that maybe more than anything
else I ever worked on," said Ralph Neas, "people were motivated
primarily by what they perceived as the right thing to do." There
was comparatively little negative fallout for advocating the ADA:
"you could do the right thing without really getting anybody that
upset." Some people question whether pity played a role in the ADA's
passage. Congressman Coelho appropriately said the issue is irrelevant.
"If what you want to do is really right," he said, "get the votes
and worry about those other things later."
One factor that helped secure the necessary votes
was that the deliberations over the ADA were, for the most part,
kept out of the "gutter." Although ADA advocates wanted to educate
the public about the ADA, especially administration officials and
members of Congress, they worked to control the level of press coverage.
People such as Congressman Coelho and Pat Wright feared that the
press might distort the ADA. As Rochelle Dornatt of Coelho's staff
explained: "it would be too easy to lose control over the spin of
what this bill was supposed to be, which was a bill to help people
realize their potential and incorporate them and assimilate them
into . . . American society, as opposed to it down to its dollar
figures." Coelho repeatedly told those around him, "I don't want
fanfare, I don't want a lot of publicity." Rather, the goal was
to work toward agreement with members of Congress and the Bush administration
quietly and efficiently. Wright described it as "a press blackout."
While this helped the ADA make it through Congress, Denise Figueroa
noted that it had the side effect of limiting the general public's
knowledge of the ADA, which complicates the implementation process.
Nevertheless, "in retrospect, I would do it again," says Wright,
"be cause the final bill simply would not have looked the same if
we had carried the debate into the press."
"The final bill simply would not have looked
the same if we had carried the debate into the press."
--Pat Wrightboiling
Although this historical
account closes with the signing of the ADA into public law, the
history of the ADA does not end on July 26, 1990. It continues through
the important process of regulation-writing and implementation.
In stark contrast to the regulatory delay regarding Section 504,
the Department of Justice and the Equal Employment Opportunity Commission
moved with striking speed to issue their regulations within a year
of the ADA's signing. On July 26, 1991, Attorney General Thornburgh
signed the regulations at a ceremony reminiscent of President Bush's
signing a year before.
In the years since the ADA's passage, the act has
proved remarkably durable. This is a tribute to the deliberative
process that refined the ADA. Many critics have claimed that the
ADA was passed as motherhood and apple pie and without serious consideration.
But the Senate and House records indicate that such assertions are
false. Members, staff, disability advocates, officials from the
Bush administration, and representatives of covered entities scrutinized
every title, section, paragraph, line, and word of the ADA--countless
times. The intense and detailed deliberations, especially those
in the House, served an important function. Although businesses
and other covered entities were not entirely satisfied with the
outcome, the ability of the business and disability constituencies
to work together toward scores of compromises helped make a bill
that can achieve broad support, promote voluntary compliance, and
avoid subsequent amendments.
The ADA "will proclaim to America and to the
world that people with disabilities are fully human; that paternalistic,
discriminatory, segregationist attitudes are no longer acceptable."
Justin Dart
Truly, the process by
which the ADA became public law stands as a model for the legislative
process and for cooperation between Congress and the White House.
Neas observed that it is an example others would do well to follow
"in terms of bipartisanship, in terms of broad coalitions, in terms
of strategies, and media efforts, and grassroots efforts, as well
as the legislation lobbying effort." The ADA did not solve every
predicament facing people with disabilities. But it took giant steps
forward, shattering the barriers of today and tomorrow, so that
the future may be shared by all. "It is the world's first declaration
of equality for people with disabilities," said Justin Dart. "It
will proclaim to America and to the world that people with disabilities
are fully human; that paternalistic, discriminatory, segregationist
attitudes are no longer acceptable; and that henceforth people with
disabilities must be accorded the same personal respect and the
same social and economic opportunities as other people."
The dawn of a new day.
BEYOND THE ADA: THE PAST IS PROLOGUE
The Future for Americans with Disabilities
ADA represents a significant accomplishment in the
evolution of society's views and treatment of people with disabilities.
. . . Nonetheless, ADA is but one node in a continuum of progress,
and it pales in relation to the extant overwhelming service and
survival needs of people with disabilities. Ultimately, the full
impact of ADA will be realized only after the majority of people
with disabilities gain access to certain basic services like attendant
care, readers, interpreters, transportation, housing assistance,
affordable health care, and medical and vocational rehabilitation.
Formless as liquid in a vacuum, the concept of equality has little
meaning for people who struggle to survive without the resources
necessary to meet fundamental human needs.
Lex Frieden
Looking to the Twenty-First Century
The United States has long been a champion of civil
rights. It is only natural that we are now in the forefront of efforts
to ensure equal opportunity for persons with disabilities, as exemplified
in the Americans with Disabilities Act. We have begun shifting disability
policy in America from exclusion to inclusion; from dependence to
independence; from paternalism to empowerment.
But our work is far from finished. As we work to build
an accessible bridge to the twenty-first century, we cannot be satisfied
until all citizens with disabilities receive equal treatment under
the law--whether in the workplace, in schools, in places of public
accommodation, in government, or in the courts. Every American deserves
a chance to participate in society. And our nation needs every individual's
contribution. For America will succeed in the next century only
by pooling all our resources and capabilities. By working together
we can ensure that every individual and our nation have the opportunity
to succeed.
President William Jefferson Clinton
GLOSSARY OF ACRONYMS
ABA -- American Bus Association
ACB -- American Council of the Blind
ACCD -- American Coalition of Citizens with Disabilities
ACLU -- American Civil Liberties Union
ADA -- Americans with Disabilities Act
ADAPT -- American Disabled for Accessible Public Transit (prior
to 1990) American Disabled for Attendant Programs Today (since 1990)
AIDS -- Acquired Immunodeficiency Syndrome
APTA -- American Public Transit Authority
ARC -- Association for Retarded Citizens
ATBCB -- Architectural Barriers and Compliance Board
CCD -- (CCDD) Consortium for Citizens with Disabilities (formerly
the Consortium for Citizens with Developmental Disabilities)
CDC -- Centers for Disease Control
CORE -- Congress on Racial Equality
DIA -- Disabled in Action
DIMENET -- Disabled Individuals Movement for Equality Network
DLRC -- Disability Law Resource Center
DOJ -- Department of Justice
DRC -- Disability Rights Center
DREDF -- Disability Rights Education and Defense Fund
DVA -- Disabled Veterans of America
EEOC -- Equal Employment Opportunity Commission
EFA -- Epilepsy Foundation of America
EPVA -- Eastern Paralyzed Veterans of America
GSA -- General Services Administration
HAC -- Hearing Aid Compatibility Act
HEW -- Department of Health, Education and Welfare
HHS -- Department of Health and Human Services
HIV -- Human Immunodeficiency Virus
ICD -- International Center for the Disabled
INSPIRE -- Institute for Public Interest Representation
LCCR -- Leadership Conference on Civil Rights
NAD -- National Association of the Deaf
NADDC -- National Association of Developmental Disabilities Councils
NAPAS -- National Association of Protection and Advocacy Systems
NCD (NCH) -- National Council on Disability (formerly National Council
on the Handicapped)
NCIL -- National Council on Independent Living
NCLH -- National Center for Law and the Handicapped
NESS -- National Easter Seal Society
NFB -- National Federation of the Blind
NFIB -- National Federation of Independent Business
NIHR (NIDRR) -- National Institute of Handicapped Research (now
National Institute for Disability and Rehabilitation Research)
NMHA -- National Mental Health Association
NORA -- National Organization Responding to AIDS
NPRM -- Notice of Proposed Rule Making
NRA -- National Restaurant Association
OBRA -- Omnibus Budget and Reconciliation Act
OCR -- Office of Civil Rights
OMB -- Office of Management and Budget
PCEH (PCEPD) -- Presidents Committee on Employment of the Handicapped
(now Presidents Committee on Employment of People with Disabilities)
PDSP -- Physically Disabled Students Program
PILCOP -- Public Interest Law Center of Philadelphia
PVA -- Paralyzed Veterans of America
RSA -- Rehabilitation Services Administration
SHHH -- Self-Help for Hard of Hearing
TAPT -- Tulsans for Accessible Public Transportation
TDD -- Telecommunication Device for the Deaf
TIRR -- The Institute for Rehabilitation Research
UCPA -- United Cerebral Palsy Association
UMTA -- Urban Mass Transportation Administration
USPHS -- United States Public Health Service
APPENDIX A
LIST OF INTERVIEWS
Only those interviews for which proper authorization
was obtained have been listed here and used in writing this manuscript,
though many others were held. Some individuals important in the
history of the ADA were unavailable to participate in interviews.
I. Personal Interviews:
Bartlett, Steve -- March
10, 1997, by Jonathan Young.
Batavia, Andrew -- November
7, 1996, by Jonathan Young.
Bristo, Marca -- January
6, 1994, by Gerben DeJong and Ruth Brannon; February 20, 1997, by
Jonathan Young; May 29, 1997, by Jonathan Young.
Burgdorf, Robert -- February
19, 1997, by Jonathan Young.
Carr, Charlie -- March 14,
1997, by Jonathan Young.
Cherry, Jim -- November 13,
1996, by Jonathan Young.
Coelho, Tony -- November
22, 1996 and December 2, 1996, by Jonathan Young.
Cuprill, Maria -- April 28,
1997, by Jonathan Young.
Dart, Justin -- August 18,
1993, by Gerben DeJong; January 31, 1997, by Jona than Young.
Decker, Curtis -- October
12, 1993, by Gerben DeJong and Karin Behe.
Disler, Mark -- November
13, 1996, by Jonathan Young.
Dornatt, Rochelle -- August
6, 1993, by Gerben DeJong; December 4, 1996, by Jonathan Young.
Durenberger, Dave -- November
26, 1996, by Jonathan Young.
Dusenbury, Joe -- February
25, 1997, by Jonathan Young.
Feldblum, Chai -- January
13, 1997 and March 14, 1997, by Jonathan Young.
Figueroa, Denise -- March
12, 1997, by Jonathan Young.
Fiorito, Eunice -- May 30,
1997, by Jonathan Young.
Frieden, Lex -- December
27, 1996 and December 28, 1996, by Jonathan Young.
Fulco, Nancy Reed -- August
3, 1993, by Ruth Brannon and Karin Behe.
Funk, Robert -- February
3, 1997, by Jonathan Young.
Golden, Marilyn -- February
24, 1997, by Jonathan Young.
Gray, C. Boyden -- October
23, 1996, by Jonathan Young and Gerben DeJong.
Hearne, Paul -- July 23,
1993, by Ruth Brannon and Karin Behe.
Johnson, Mark -- March 7,
1997, by Jonathan Young.
Kailes, June -- March 14,
1997, by Jonathan Young.
Kemp, Evan -- December 16,
1996 and February 3, 1997, by Jonathan Young.
Lechner, Wendy -- November
4, 1993, by Gerben DeJong.
Marchand, Paul -- October
26, 1993, by Gerben DeJong, Ruth Brannon, and Karin Behe.
Marge, Michael -- December
27, 1996, by Jonathan Young.
Mayerson, Arlene -- October
13, 1993, by Gerben DeJong and Karin Behe; October 28, 1993, by
Gerben DeJong, Ruth Brannon, and Karin Behe.
Milbank, Jeremiah -- November
1, 1993, by Ruth Brannon and Karin Behe.
Muilenburg, Terry -- December
11, 1996, by Jonathan Young.
Neas, Ralph -- December 10,
1993, by Gerben DeJong; January 21, 1994, by Gerben DeJong, Ruth
Brannon, and Karin Behe.
Osolinik, Carolyn -- June
1, 1994, by Gerben DeJong, Ruth Brannon, and Karin Behe; November
25, 1996, by Jonathan Young.
O'Day, Bonnie -- February
20, 1997, by Jonathan Young.
Owens, Major -- April 29,
1997, by Jonathan Young.
Reich, Alan -- February 18,
1997, by Jonathan Young.
Roper, William -- December
2, 1996, by Jonathan Young.
Rubenfeld, Phyllis -- May
23, 1997, by Jonathan Young.
Savage, Liz -- July 30, 1993,
by Ruth Brannon and Karin Behe; February 26, 1997, by Jonathan Young.
Schulman, Melissa -- July
9, 1993, by Gerben DeJong, Ruth Brannon, and Karin Behe; December
6, 1996, by Jonathan Young.
Silverstein, Robert -- August
30, 1993, by Gerben DeJong and Karin Behe; October 31, 1996, by
Jonathan Young.
Slagle, Roger -- December
2, 1996, by Jonathan Young.
Sykes, Roland -- March 5,
1997, by Jonathan Young.
Thornburgh, Richard -- October
22, 1996, by Jonathan Young.
Thornburgh, Virginia -- February
18, 1997, by Jonathan Young.
Treanor, Richard -- November
27, 1996, by Jonathan Young.
Vierra, Roxanne -- 1993,
by Ruth Brannon.
Weisman, Jim -- November
16, 1993, by Gerben DeJong, Ruth Brannon, and Karin Behe.
West, Maureen -- November
11, 1996, by Jonathan Young.
Wright, Pat -- November 19,
1993, by Gerben DeJong, Ruth Brannon, and Karin Behe; February 7,
1997, by Jonathan Young.
Yale, Ken -- September 20,
1993, by Gerben DeJong and Karin Behe.
II. Correspondence Interviews:
Bush, George -- Jonathan
M. Young to President George Bush, February 3, 1997; George Bush
to Jonathan M. Young, February 26, 1997.
Hatch, Orrin G. -- Jonathan
M. Young to The Honorable Orrin G. Hatch, February 19, 1997; Orrin
G. Hatch to Jonathan M. Young, February 24, 1997.
APPENDIX B
THE LEGAL ROAD TO THE ADA
Civil Rights Act of 1964
Prohibited discrimination on the basis of race, national origin,
and religion. Important provisions: 1) access to places of public
accommodation; 2) nondiscrimination in employment practices' 3)
desegregation of all public facilities; 4) desegregation of public
education; 5) nondiscrimination in all federally-assisted programs.
Represents the philosophical foundation of the ADA.
Voting Rights Act of 1965
Provided for U.S. marshals to oversee state and local elections
to ensure voting access for blacks and other minorities. Required
that any change in state voting laws had to be cleared by the U.S.
government, shifting the burden of proof to potential perpetrators
of discrimination. Confirmed that Americans should not be discriminated
against in voting.
Fair Housing Act of 1968
Added Title VIII to the Civil Rights Act of 1964; prohibited housing
discrimination according to race, ethnicity, or religion. Served
as the basis for the Fair Housing Amendments Act of 1988.
Architectural Barriers Act of 1968
Required that most buildings designed, constructed, or altered with
federal funds had to be accessible to persons with disabilities.
Urban Mass Transit Amendments Act
of 1970
Required certain local jurisdictions to provide mass transit facilities
and services so that they could be used by elderly persons or people
with disabilities. Established a program of grants and loans to
assist state and local agencies in developing accessible transportation.
Education Amendments of 1972
Added Title IX to the Education Act; provided that no person shall
be denied participation in, denied the benefits of, or discriminated
against in any education program or activity receiving federal financial
assistance. Modeled after Title VI of the Civil Rights Act.
Rehabilitation Act of 1973
Re-authorized and expanded the vocational rehabilitation program
to include all persons with disabilities; provided for research
and training to improve vocational prospects for disabled persons.
Title V instituted affirmative action hiring policies for federal
agencies and parties contracting with the Federal Government; created
the Architectural and Transportation Barriers Compliance Board (ATBCB).
Section 504 prohibited discrimination on the basis of handicap among
entities receiving federal financial assistance.
Education for all Handicapped Children
Act of 1975 (now IDEA: Individuals with Disabilities Education Act)
Required that states receiving federal financial assistance provide
all children with disabilities a free and appropriate public education
in the least restrictive setting possible. Amendments added grant
programs for developing comprehensive services for infants and toddlers,
research and demonstration projects, dissemination of instructional
materials, and recruitment of special education personnel.
Developmental Disabilities Assistance
and Bill of Rights Act of 1975
Responded to abusive and inadequate treatment for persons with mental
retardation residing in institutions; provided for the coordination
and funding of services for persons with long-term disabilities;
created a bill of rights for persons with disabilities (unenforceable
guidelines); implemented protection and advocacy systems in states
to promote the rights of persons with developmental disabilities
and provide legal services.
Section 504 Regulations, 1977
Implemented the single-sentence Section 504; defined handicap; delineated
actions prohibited as discriminatory; established construction standards;
and instituted educational policies. Important not only for the
detailed provisions but also for the symbolic victory of the disability
community that united to protest delay in promulgation. Represents
the content foundation of the ADA.
Southeastern Community College
v. Davis, 1979
First Section 504 case decided by the Supreme Court, assessing the
viability of the recently-issued regulations. Concerned a hearing-impaired
woman seeking admission to a nursing school. Ruled that Davis's
impairment disqualified her from the ability to participate and
cast doubt on the entire principle of taking affirmative steps to
provide reasonable accommodation, as specified in the 504 regulations.
The Civil Rights of Institutionalized
Persons Act of 1980
Granted Department of Justice the authority to sue state or local
authorities operating an institution (including prisons and mental
hospitals) where there is a "pattern or practice" of subjecting
institutionalized persons to flagrant violations of Constitutional
rights and privileges.
Telecommunications for the Disabled
Act of 1982
Required that workplace telephones used by persons with hearing
aids and emergency telephones had to be hearing-aid-compatible,
meaning that such phones had to be equipped to transmit electromagnetic
signals that could be received by hearing aids.
Task Force on Regulatory Relief,
1983
President Ronald Reagan's Task Force on Regulatory Relief, chaired
by Vice President George Bush, sought to deregulate the burdens
and costs imposed on businesses, schools, and governments. Targeted
Section 504, the Education for all Handicapped Children Act, and
the ATBCB. Following remarkably organized opposition from the disability
community, Task Force chose not to alter Section 504 and the Education
Act; changes made to the ATBCB regulations. Nelson v. Thornburgh,
1983 Concerned whether Section 504 required the Pennsylvania Department
of Public Welfare to provide and pay for readers or electronic devices
for employees with visual impairments. Court ruled the Department
failed to show that the cost of such accommodations would be an
"undue hardship," and therefore had to absorb the expenses of the
accommodations. Important affirmation of the principle of reasonable
accommodation.
The Voting Accessibility for the
Elderly and Handicapped Act of 1984
Required that polling sites for federal elections had to be physically
accessible to elderly persons and voters with physical disabilities;
required election officials to provide large-print instructions
and telecommunication devices for the deaf to persons with sensory
impairments.
Consolidated Rail Corporation
v. Darrone, 1984
Second Supreme Court ruling on Section 504; represented a reversal
of interpretation from the 1979 Davis decision. Concerned
whether Section 504 provisions applied to employment discrimination.
Court ruled that employment discrimination was prohibited by Section
504, and established that courts must give considerable deference
to the 504 regulations.
The Handicapped Children's Protection
Act of 1986
Overturned 1984 Supreme Court decision Smith v. Robinson,
which curtailed parents' ability to obtain attorneys' fees when
prevailing in litigation. Gave parents the right to receive reasonable
compensation for attorneys' fees that matched community standards
for similar cases.
Alexander v. Choate, 1985
Concerned a group of Medicaid recipients who brought a class action
suit against the Governor of Tennessee, arguing that the state's
reduction in the number of days Medicaid covered for inpatient hospital
stays from 20 to 14 had a disparate impact on persons with disabilities
and therefore violated Section 504. Supreme Court ruled that this
incident did not violate Section 504. But it established a significant
policy statement on the Rehabilitation Act. Court concurred with
Congress that discrimination against persons with disabilities was
"most often the product, not of invidious animus, but rather of
thoughtlessness and indifference--of benign neglect." As such, Section
504 applied not only to situations where there was deliberate
and malicious intent to discriminate, but also to policies
and actions that had a disproportionately adverse effect on persons
with disabilities. Not every action with disproportionate effect
is a violation; there must, according to the Court, be a balance
of the needs of persons with disabilities and the costs to society.
City of Cleburne, Texas v. Cleburne
Living Center, 1985
Concerned a proposed operator of a group home for persons with mental
retardation who challenged the validity of zoning restrictions that
excluded such a group home. Supreme Court decided that mental retardation
did not constitute a "quasi-suspect" classification calling for
the "heightened-scrutiny" equal protection test by the judiciary.
Instead upheld that persons with mental retardation had distinguishing
characteristics warranting policies that are "rationally related
to a legitimate state interest." But ruled there was no evidence
the group home posed a "special threat" to the city's "legitimate
interests." Decided that the exclusion was based on "irrational
prejudice" against persons with mental retardation and therefore
unconstitutional.
The Air Carriers Access Act, 1986
Overturned 1986
Supreme Court decision in U.S. Department of Transportation v.
Paralyzed Veterans of America, which ruled that commuter and
commercial airlines not receiving federal funds did not have to
comply with nondiscrimination standards of Section 504. Required
that airlines should provide access to persons with disabilities,
regardless of whether federal funds are used.
Civil Rights and Remedies Equalization
Act of 1986
Overturned 1985 Supreme Court decision Atascadero State Hospital
v. Scanlon, which granted the state immunity from Section 504
federal law suits; provided that states may not be immune from a
law suit in federal court for a violation of Section 504.
The Civil Rights Restoration Act
of 1987
The 1984 Supreme Court ruling Grove City College v. Bell
established that while receipt of federal funds for a single college
program prohibited gender discrimination in the entire institution
(according to Title IX of the Education Amendments Act of 1972),
the Title IX sanction of cutting off federal funds would only be
applied to the specific program in question, not to any other programs
at the school. By extension, the decision applied to Section 504
of the Rehabilitation Act of 1973, the Age Discrimination Act of
1975, and Title VI of the Civil Rights Act of 1964--all carried
provisions about programs or activities receiving federal assistance.
Civil Rights Restoration Act, passed over President Reagan's veto,
restored all four non-discrimination statues (race, age, disability,
gender) to their status prior to the Grove City College ruling.
Meant that an entire institution was liable for the discriminatory
practices of one program or activity.
School Board of Nassau County,
Florida v. Arline, 1987
Concerned a school teacher fired solely because of her susceptibility
to tuberculosis. Arline argued her dismissal violated the Rehabilitation
Act. Supreme Court upheld that a person with the contagious disease
of tuberculosis may be a "handicapped individual" as defined by
the Rehabilitation Act, and therefore protected by the statutes
nondiscriminatory employment provisions. Such an individual must
be evaluated not by "fearful, reflexive reactions" to a class of
persons, but on an individual basis to determine 1) whether one
is able to do the job with or without a "reasonable accommodation,"
and 2) whether medically sound judgments indicate substantial risk
and likelihood of transmission.
Hearing Aid Compatibility Act of
1988
Required that nearly all telephones manufactured or imported into
the United States had to be compatible for use with telecoil-equipped
hearing aids. It did not require retrofitting of existing telephones.
Telecommunications Accessibility
Enhancement Act of 1988
Mandated a proactive approach within the Federal Government to advancing
accessibility to the federal telecommunications system by individuals
with hearing or speech limitations.
The Fair Housing Amendments Act
of 1988
Extended protections of the Fair Housing Act of 1968 to persons
with disabilities; extended nondiscriminatory principles applied
to the Federal Government and those receiving federal assistance
to the entire economy. Enabled persons with disabilities to make
modifications to premises; receive reasonable accommodations in
rules and policies; and expect accessible entryways and common use
areas. Permitted the exclusion of persons posing a "direct threat
to the health or safety of another individual."
ADAPT v. Skinner, 1989
ADAPT challenged two components of existing regulations issued by
the Department of Transportation: 1) that every bus need not be
lift-equipped (local transit authorities could exercise their local
option to provide accessible buses, paratransit, or a mixture);
2) that transit authorities did not need to spend any more than
3% of its budget on accessibility. Supreme Court upheld local option
provisions, but ruled the 3% "safe harbor" cap was "arbitrary and
capricious."
APPENDIX C
CHRONOLOGY: THE ADA'S PATH TO CONGRESS
May, 1977
White House Conference on Handicapped Individuals proposes the creation
of an agency to evaluate and coordinate federal disability programs
November, 1978
Creation of the National Council on the Handicapped.
October, 1982
President Ronald Reagan appoints new Council with Joe Dusenbury
as Chairperson.
October, 1982 to August, 1983
Justin Dart holds public forums in all fifty states to develop NCD
report.
August, 1983
Publication of National Policy for Persons with Disabilities.
Proposal for comprehensive body of law protecting rights of persons
with disabilities.
October, 1983
Sandra Parrino appointed NCD Chairperson.
February, 1984
Establishment of National Council on the Handicapped as an independent
federal agency. Mandate to issue a report evaluating incentives
and disincentives in federal programs and recommending changes.
December, 1984 to April, 1985
Lex Frieden, Bob Burgdorf, Ethel Briggs, Naomi Karp, Brenda Bratton
join NCD staff.
April, 1985 to January, 1986
NCD prepares topic papers and final report for Toward Independence.
Justin Dart holds a second set of public forums in every state.
February 1, 1986
Publication and distribution of Toward Independence. Number
one recommendation: "a comprehensive law requiring equal opportunity
for individuals with disabilities [and] prohibiting discrimination
on the basis of handicap."
March, 1986
Publication of The ICD Survey of Disabled Americans. Two-thirds
of Americans with disabilities unemployed; most want to work but
cannot.
February, 1987
Robert Burgdorf completes draft of an equal opportunity law.
May, 1987
NCD commits to developing a legislative proposal for a comprehensive
equal opportunity law.
November, 1987
NCD approves draft of Americans with Disabilities Act. Secures sponsorship
of Senator Lowell Weicker and Congressman Tony Coelho. Solicits
White House support.
November, 1987 to March, 1988
NCD, mediated by Senator Weicker, meets with disability community
to discuss the ADA.
January, 1988
Publication and distribution of On the Threshold of Independence.
Includes draft of Americans with Disabilities Act to solicit grassroots
support.
February 9, 1988
Adoption of "donut-hole" approach to Sections 503 and 504 and exclusion
of insurance.
April 28-29, 1988
ADA introduced in the Senate by Senator Weicker and in the House
by Congressman Coelho.
APPENDIX D
CHRONOLOGY: LEGISLATIVE HISTORY OF THE ADA
April 28, 1988
Senator Lowell Weicker introduces ADA (S. 2345).
April 29, 1988
Congressman Tony Coelho introduces ADA (H.R. 4498).
August 12, 1988
Vice President Bush commits to supporting a civil rights act for
people with disabilities if elected president.
September 27, 1988
Joint Hearing: Senate Subcommittee on the Handicapped and the House
Subcommittee on Select Education.
October 24, 1988
Hearing: House Subcommittee on Select Education.
November 8, 1988
George Bush elected president; Senator Lowell Weicker defeated in
reelection bid.
November, 1988
Senator Tom Harkin assumes role of ADA sponsor in the Senate; Senator
Harkin and the disability community solicit Senator Edward Kennedy
to take a lead ADA role to compensate for the loss of Senator Weicker.
November, 1988 to March, 1989
Senators Harkin and Kennedy work with Congressman Coelho, Senator
Hatch, the disability community, the business community, and the
Bush administration in developing a new version of the ADA.
January 19, 1989
President-elect Bush pledges to support an act similar to the Americans
with Disabilities Act.
March 15, 1989
Senators Kennedy and Harkin complete draft of ADA.
May 9, 1989
Senator Tom Harkin and Congressman Tony Coelho jointly introduce
ADA (S. 933 and H.R. 2273).
May 9, 1989
Hearing: Senate Committee on Labor and Human Resources.
May 10, 1989
Hearing: Senate Committee on Labor and Human Resources.
May 14, 1989
NCIL organizes march on the White House.
May 16, 1989
Hearing: Senate Committee on Labor and Human Resources.
June 15, 1989
Congressman Tony Coelho resigns from the House of Representatives;
Congressman Steny Hoyer assumes the role of managing the bill.
June 22, 1989
Hearing: Senate Committee on Labor and Human Resources. Attorney
General Richard Thornburgh testifies for the Bush administration
and commits to negotiations with the Senate to develop a compromise
bill.
June 23 to July 31, 1989
Negotiations held between the Senate and the Bush administration.
July 18, 1989
Joint Hearing: House Subcommittees on Select Education and Employment
Opportunities.
August 2, 1989
Mark-up: Senate Committee on Labor and Human Resources; S. 933 reported
to the Senate as amended.
President Bush endorses the ADA.
August 3, 1989
Hearing: House Subcommittee on Civil and Constitutional Rights.
August 28, 1989
Hearing: House Subcommittee on Select Education (Houston, Texas).
August 30, 1989
Committee report filed: Senate Committee on Labor and Human Resources.
September 7, 1989
Senate floor deliberations; Senate passes S. 933, 76 to 8.
September 13, 1989
Joint Hearing: House Subcommittees on Select Education and Employment
Opportunities.
September 20, 1989
Hearing: House Subcommittee on Surface Transportation.
September 26, 1989
Hearing: House Subcommittee on Surface Transportation.
September 27, 1989
Hearing: House Subcommittee on Telecommunications and Finance.
September 28, 1989
Hearing: House Subcommittee on Transportation and Hazardous Materials.
October 6, 1989
Hearing: Subcommittee on Select Education (Indianapolis, Indiana).
October 11, 1989
Hearing: Subcommittee on Civil and Constitutional Rights.
October 12, 1989
Hearing: House Subcommittee on Civil and Constitutional Rights.
Mark-up: House Subcommittee on Telecommunications and Finance; H.R.
2273 reported to the House Committee on Energy and Commerce as amended.
Attorney General Richard Thornburgh reaffirms commitment of Bush
administration to passing the ADA.
November 9, 1989
Mark-up: House Committee on Education and Labor.
November 14, 1989
Mark-up: House Committee on Education and Labor; H.R. 2273 reported
to the House as amended.
February 22, 1990
Hearing: House Committee on Small Business.
March 1, 1990
Mark-up: House Subcommittee on Surface Transportation; H.R. 2273
reported to the House Committee on Public Works and Transportation
as amended.
March 12, 1990
"Wheels of Justice" campaign sponsors march from White House to
Capitol; scores of persons with disabilities climb the Capitol steps.
March 13, 1990
Participants in "Wheels of Justice" campaign demonstrate in the
Capitol Rotunda, demanding for immediate passage of the ADA.
Mark-up: Committee on Energy and Commerce (House Subcommittee
on Transportation and Hazardous Materials discharged); H.R. 2273
reported to the House as amended.
April 3, 1990
Mark-up: Committee on Public Works and Transportation; H.R. 2273
reported to the House as amended.
April 25, 1990
Mark-up: House Subcommittee on Civil and Constitutional Rights;
H.R. 2273 reported to the House Committee on the Judiciary as amended.
May 1, 1990
Mark-up: House Committee on the Judiciary.
May 2, 1990
Mark-up: House Committee on the Judiciary; H.R. 2273 reported to
the House as amended.
May 14, 1990
Committee report filed: House Committee on Public Works and Transportation.
May 15, 1990
Committee reports filed: House Committee on Education and Labor;
House Committee on Energy and Commerce; House Committee on the Judiciary.
May 16, 1990
Committee report filed: House Committee on Rules; H.R. 2273 reported
to the House as amended.
May 17, 1990
House floor deliberations.
May 22, 1990
House floor deliberations; House passes H.R. 2273, 403 to 20, substituting
the text of H.R. 2273 for S. 933.
May 24, 1990
House requests a conference with the Senate; House appoints conferees.
June 6, 1990
Senate appoints conferees; Senate passes motion to instruct conferees
to support the Chapman amendment.
June 25, 1990
Conference meeting held.
June 26, 1990
Conference report filed for consideration in the House and Senate.
July 11, 1990
Senate floor deliberations; Senate recommits conference report with
an amendment and a motion to instruct conferees about Senate coverage.
July 12, 1990
Conference meeting held; Conference report filed. House floor deliberations;
motion to recommit conference report fails; House passes conference
report, 377 to 28.
July 13, 1990
Senate floor deliberations; Senate passes conference report, 91
to 6; final amended version of S. 933 submitted to President Bush
for approval.
July 26, 1990
President George Bush signs the Americans with Disabilities Act
into law--P.L. 101-336.
APPENDIX E
DISCRIMINATION DIARIES
The following documents are printed as written, without
stylistic or technical changes. Minor editorial insertions have
been provided to identify selected abbreviations. Addresses and
phone numbers have been withheld. All diaries, petitions, and other
documents presented to Congress by the Task Force on the Rights
and Empowerment of People with Disabilities are currently stored
at the President's Committee on Employment of People with Disabilities
in Washington, D.C.
Get Involved! Help the ADA with this petition!
The Americans with Disabilities Act (ADA) is designed
to provide full civil rights protection to Americans with disabilities.
This legislation, (S.2345/H.R.4498) is expected to be the first
order of business for the 1989 Congress, and members of Congress
have asked for concrete evidence that Americans with disabilities
need full civil rights protection. We must begin that process now.
Help enact the ADA by:
1.) Writing a letter to your Senator(s) and Congressional
Representatives indicating your support for the ADA and asking them
to become cosponsors...
2.) Recruiting others to write such letters--your
family, your friends and neighbors, members of your various organizations,
clients, business contacts--just about everyone you know...
3.) Circulating the petition supporting the ADA. Make
copies of this page and circulate every where. Send completed petitions
to: Justin Dart, Chairperson, Task Force on the Rights & Empowerment
of Americans with Disabilities, 907 6th St, S.W., Suite 516C, Washington,
D.C. 20024.
A Petition for Equal Rights for Americans with Disabilities
Whereas: There are more than 36 million individuals
in this nation whose basic life activities are limited in some significant
way by physical disabilities, mental impairments and/or the effects
of age; and
Whereas: Millions of these potentially productive
persons are forced by traditional discriminatory paternalistic attitudes
and systems to exist in situations of unjust unwanted dependency,
segregation, extreme deprivation and second class citizenship; and
Whereas: Disability is a universally common characteristic
of the human condition and there is a substantial probability that
most humans will experience significant disability at some point
in their lives; and
Whereas: People with disabilities have the same
inalienable rights and responsibilities as other people; and
Whereas: The forced segregation and dependency
of millions of individuals with disabilities in this country constitutes
a gross violation of their constitutional and basic human rights,
a devastating waste of productive potential, a totally unnecessary
and increasingly unaffordable drain on public and private budgets
and a significant failure of the great American promise of liberty
and justice for all; and
Whereas: Individuals with disabilities form the
nation's largest severely disadvantaged minority not specifically
covered by federal legislation guaranteeing comprehensive civil
rights protection and equal opportunities to participate in society,
Therefore, Be It Resolved that we, the undersigned
advocates for justice, urge the Congress to immediately enact, and
the President to sign, the Americans with Disabilities Act of 1988,
in order to effectively guarantee that all persons with disabilities
will be protected against discrimination on the basis of handicap.
A VOTE FOR JUSTICE
I URGE THE CONGRESS TO ENACT, AND THE PRESIDENT TO
SUPPORT AND TO SIGN, LEGISLATION SUCH AS THE AMERICANS WITH DISABILITIES
ACT OF 1988, WHICH WILL EFFECTIVELY PROTECT ALL PERSONS WITH DISABILITIES
AGAINST DISCRIMINATION ON THE BASIS OF HANDICAP.
I FURTHERMORE URGE THE ESTABLISHMENT OF THOSE BASIC
SERVICES AND HUMAN SUPPORT SYSTEMS NECESSARY TO MAKE RIGHTS REAL
IN EVERY DAY LIFE, AND WHICH WILL ENABLE ALL PEOPLE WITH DISABILITIES
TO ACHIEVE THEIR FULL POTENTIAL FOR INDEPENDENCE, PRODUCTIVITY AND
QUALITY OF LIFE IN THE MAINSTREAM OF SOCIETY.
I HAVE PERSONAL EXPERIENCED AND/OR OBSERVED THE FOLLOWING
DISCRIMINATION AGAINST PEOPLE WITH DISABILITIES:
A VOTE FOR JUSTICE
I HAVE PERSONAL EXPERIENCED AND/OR OBSERVED THE FOLLOWING
DISCRIMINATION AGAINST PEOPLE WITH DISABILITIES:
People with developmental disabilities and their families
are torn apart because Medicaid dollars are paid to buildings so
the only way needed services can be obtained is for the person to
be institutionalized where there is no way to live as an equal,
participating member of their community. Please--we must
reform Medicaid and pass the Medicaid Home and Community Quality
Services Act.
Do you want to live and learn in an institution of
100's of strangers or your family? Would you like to work for subminimum
wage in a sheltered workshop or do you like your real job and paycheck?
What makes you think that people with developmental disabilities
are less valuable? Take a stance, take action if you wouldn't choose
the life of institutional living and working.
Vickie Ferklic
Golden, CO
A VOTE FOR JUSTICE
I HAVE PERSONAL EXPERIENCED AND/OR OBSERVED THE FOLLOWING
DISCRIMINATION AGAINST PEOPLE WITH DISABILITIES:
When I was a senior at college at the U of SD I was
denied the opportunity to practice teach in the public schools and
therefore was not able to get a SD teaching certificate. The Dean
of the School of Education at that time and his successor were convinced
that blind people could not teach in public schools.
Arnold Auch
Sioux Falls, SD
A VOTE FOR JUSTICE
I HAVE PERSONAL EXPERIENCED AND/OR OBSERVED THE FOLLOWING
DISCRIMINATION AGAINST PEOPLE WITH DISABILITIES:
I work with adults diagnosed as chronically mentally
ill. The major problems that my clients face stem from the stigma
associated with mental illness. Employers are reluctant to hire
them in the first place because they (the employers) do not understand
mental illness. They think of my clients as being violent or slow,
which they are neither. I believe more resources need to be allocated
to educate the public about mental illness and reduce the myths
associated with it.
Lynn N. Culey
Vocational Coordinator
Community Support Program
Sioux Falls, SD
A VOTE FOR JUSTICE
I HAVE PERSONAL EXPERIENCED AND/OR OBSERVED THE FOLLOWING
DISCRIMINATION AGAINST PEOPLE WITH DISABILITIES:
I fully support ADA. It is legislation whose time
has come. It would be a serious injustice if ADA was not passed.
Phyllis Geldzalh
Salt Lake City, UT
A VOTE FOR JUSTICE
I HAVE PERSONAL EXPERIENCED AND/OR OBSERVED THE FOLLOWING
DISCRIMINATION AGAINST PEOPLE WITH DISABILITIES:
I had some friends who had an apartment that I really
loved. They moved out. Three months later I was in the market for
a new place. That apartment had been vacant the entire time. I applied.
Everything was going great until they asked how do you get your
money. I said "I'm disabled". They asked what's your disability.
I told them "I am psychiatrically disabled". They then said "we
won't rent to your kind." The apartment remained vacant for six
months after they refused me the place.
Gary Janski
Salt Lake City, UT
A VOTE FOR JUSTICE
I HAVE PERSONAL EXPERIENCED AND/OR OBSERVED THE FOLLOWING
DISCRIMINATION AGAINST PEOPLE WITH DISABILITIES:
- very hard time finding a job.
- people treat you like you can't do a thing. It
makes us feel better to [do] things on our own instead of having
everything done for me.
- when your crippled everyone must think you're deaf
too because they yell.
- you get treated like your a two year old and can't
do anything
Sheila Sorenson
Sioux Falls, SD
A VOTE FOR JUSTICE
I HAVE PERSONAL EXPERIENCED AND/OR OBSERVED THE FOLLOWING
DISCRIMINATION AGAINST PEOPLE WITH DISABILITIES:
I have been denied entry into graduate school because
I have Cerebral Palsy. At the time I applied I was a staff aide
to Governor Daniel Evans, and told by the Graduate School of Public
Administration that my disability would prevent a career in public
affairs. Since then, I have been employed steadily in the public
sector, and now am State Prog[ram] M[anager] for the DVR I[ndependent]
L[iving] program--I still don't have my M[asters] of P[ublic] A[dministration].
Donald F. Kayton
Redmond, WA
A VOTE FOR JUSTICE
I HAVE PERSONAL EXPERIENCED AND/OR OBSERVED THE FOLLOWING
DISCRIMINATION AGAINST PEOPLE WITH DISABILITIES:
I am an interpreter in sign language for deaf people.
One client related his experience in attempting to contact the U
of Wis. hospital by use of a TDD (Telephone Device for the Deaf)
The hospital has one--the client has one--Hospital employees are
not trained to receive calls. The telephone rings--there is no voice--they
hang up. The deaf person tries again--again--again--each time. Eventually
the one person that is aware and trained answers the phone and the
communication takes place. Placement of TDD's in many agencies is
needed--but also people must be trained.
Other clients report similar experiences--one missed
a court date and was fined even though he called and reported via
TDD to the sheriffs office that has a TDD but also has employees
that didn't even know they had one.
Ree Steidemann
Madison, WI
A VOTE FOR JUSTICE
I HAVE PERSONALLY EXPERIENCED AND/OR OBSERVED THE
FOLLOWING DISCRIMINATION AGAINST PEOPLE WITH DISABILITIES:
I had 5 pg letter of grievances written down, but
I thought it better to summarize some of them. My daughter Maureen
is now 24 a quadro C.P. wheelchair bound.
- At 18 months she was taken to the best neurologist
in the country, Dr. Spitz. I was told she had high intellect.
He was right. In regular school she always maintained a A to B+
average.
- So called educators branded her retarded. Never
tested properly.
- Wheelchairs overpriced never fitted properly, she
now has a bad back problem. [and] all prosthesis over priced.
- Regular schools would not accept her. Finally found
a school, Berlin Elementary in VT, who would--but was placed with
emotionally disturbed children.
- Teachers in Elementary and College not willing
to change classrooms for her. In college she was exempt from a
course because one teacher felt she was thorn in his side. Refused
to deal with her.
- Some teachers unwilling to give her more [time]
during test. I had to fight for this one.
- Educators telling her (in elementary school in
Ct.) that she was not college material. This almost destroyed
her.
- Restaurants refusing us admittance or telling us
to sit only in certain areas because it was a fire hazard. If
we wanted to stay, we had to sit where they told us or we could
leave.
- College does not have a van w/ a lift. I've always
transported Mimi to [and] from school.
- Pres. of Johnson State College refuses to give
her a full [time] aide so that she can achieve her course of study.
He has overlooked accessability re: bathrooms, cafeteria, etc.
He has however spent money on new brass door openers, building
a million dollar gym etc. yet will not hire a full [time] aide.
This is only a few of some of the things happening
with Mimi, Maureen) she can only write her name, and a few sentences
w/ much difficulty. Yet, last semester she was on the Pres. list
4.0 average. If this isn't an injustice I wonder what is.
She is now going to take a leave of absence from school
because the stress [and] frustration is getting to be to much for
her. I am truly angry, yet, nothing I do can change the minds of
these so called educators.
Please, please help us. I'm at my wits end trying
to fight these people alone. If you want to hear more, I will gladly
talk to anyone who will listen. My sweet, loving daughter deserves
better than this.
Very truly yours,
Frances Murtagh
Eden, VT
12/28/88
Mr. Dart:
I have enclosed a copy of a letter I wrote to our
area newspaper. These incidents really happened to me. And, I thought
you may like to include them in your diary. Good luck!
LETTERS TO THE EDITOR
"They Have Feelings Too"
I have been trying to complete my Christmas shopping
in hopes to finish before bad weather gets here. It is a fast-paced
time of the year requiring extra time and money, not to mention
patience.
I am a paraplegic and use a wheelchair to get around.
I have my own car and most of the time travel independently. I
have my own money and I am old enough to take care of myself.
I expect no more from people than anyone else would.
While I have been doing my Christmas shopping I
have encountered several de pressing situations. I have been ignored
at the cash register, only to have the next person acknowledged.
The lanes between each cash register are too narrow for my wheelchair.
Those lanes designated for wheelchairs are either closed or have
an extra long line. Boxes and boxes of extra merchandise fill
the walkways. People can't walk around it much less get a wheelchair
around. Parking in handicapped parking places is abused highly.
If you're lucky enough to get a handicapped parking place, by
the time you reach the front of the store you find that another
car has blocked the ramp. There is no other way to get upon the
sidewalk.
With all of these problems to face on each shopping
trip, one episode sticks out more than others. While shopping
in a large store in Mercer Mall, I overheard the clerk call for
security. When security called her back I overheard her say, "I
have a girl in a wheel chair that needs watching." I was speechless.
I was hurt. I was mad. I waited.
A few minutes later a nicely-dressed young man started
browsing in the same area where I was looking. A few quick looks
told me that he was "the one." After some time I approached the
clerk about calling security. She denied it. No matter. The point
is that she called security just because I was in a wheelchair--no
other reason. I find this action rude and disgusting and it should
not be tolerated by anyone. I realized that security is "stepped
up" during the holidays. Everyone is being watched at one time
or another. What I can't understand is why I was singled out to
watch.
Disabled individuals, including myself, have the
same right to enjoy the holidays as anyone else. We do expect
the same courtesy and respect that anyone else would receive.
During this time of giving, the public needs to be aware of these
problems. It would be a good time to give away some good tidings
of respect. Most of all, remember that a disabled person is just
that--a person. We have feelings just like anyone else.
Happy Holidays!
Debbie Wimmer
Bluefield, VA
* The call for security occurred in a J.C. Penny Store,
being over-looked at the cash register happened in Leggett's. No
lanes for wheelchairs in several stores.
I am a head injured survivor
and know many survivors who are not given the opportunity for growth.
(in many different ways!).
The current problem that I am battling is employment
and the law discontinuing support after being employed for a period
of time and not being eligible for returning to State aid. This
disincentive means that H[ead] I[njured]] people will not try to
find work, thus remaining on State aid for ever, certainly not a
satisfactory solution!
I completely support ADA!
Cinda Lium
Seattle, WA
In 1974 I was attending
Boettcher School (Specially Designed school for the Disabled) and
is still recognized as a part of the Denver Public School System.
Unfortunately, the focus more on "a nice place to keep us" instead
of education. It was my desire to receive the proper credentials
to continue my education on the high school and college level. I
pursued a transfer to a high school in the Denver Public School
system, went through testing and interviewing. After passing all
testing, the school system still refused the transfer. It wasn't
until I filled a petition in the city court, did the school system
grant me the transfer. Three years later I graduated with honors
and continued on to college.
Mary Frances Brown
Denver, CO
Everyone must become
aware of the external barriers the general public has created mentally
and physically to the more obvious impairments that some very intellectual
and capable citizens of our country have to cope with to be fulfilled.
I have a couple very limiting handicapps that time and wear have
inflicted on my feet and hands; I have a terrific sense of imagination
, so I am able to magnify these minor conditions in my mind and
I would not be able to continue in my job without some understanding
and adjusting.
I have witnessed the courage and emotional strength
of people inflicted with impairments and/or disabilities from birth
and from accidents. We need to utilize this portion of our society,
but to do so we must alter our norms.
Please consider the possibility of becoming one of
the millions that have had to over come their limitations and create
personal integrity for themselves, and imagine if you were faced
with the same barriers, would you persevere?
Enact and encourage the signing of the Disabilities
Act 1988.
Sincerely,
Andree Kingsley
Clifton, TX
August 22, 1988
Dear Mr. Dart
As a disabled person who uses a wheelchair, discrimination
seems to be a part of my life, and the way that I cope with it seems
to make a difference in not only how I view myself, but the way
others view me also. I am becoming accustomed to going in through
the door reserved for the hearse when I attend funerals at certain
funeral homes, coping with steps in the homes of friends and seldom
being able to get a reserved handicapped parking place. I may not
like the problems, but they do exist. I have found that because
I gently complain each and every time, two of the funeral homes
in the valley have put in ramps, West Valley City has instituted
a parking enforcement officer corps to give tickets to insensitive
drivers, Salt Lake City has en listed all citizens to play watchdog
over handicapped parking places and even friends have arranged to
have portable ramps--one even built a ramp onto his deck for accessibility.
I continuously talk to the city about curb cuts that
are not there, and slowly, they are beginning to appear.
I travel as a part of my job. I have found hotels
that claim to be accessible usually mean that the bathroom doors
are wide and that there are hand rails in place. Tubs are invariably
very deep and slippery, shower controls are often beyond reach,
sometimes there are shower door rails along the edge of the tub
making the tub inaccessible to any disabled person who transfers
into the tub, and many hotels, even with ramps or lifts, keep them
a secret from the general public, and sometimes even from the staff.
Many hotels forget that a curb surrounds the building making it
inaccessible and so many of the convention arranged hotels do not
have bathroom doors wide enough for wheelchairs, and therefore no
accommodations.
When the Environmental Protection Agency held a workshop
on the new Superfund grants to community groups, it was held in
the only inaccessible meeting room in the Sheraton Hotel, up a flight
of steps.
Most galling of all, was a recent Fair Housing, anti-discrimination
tri-regional convention sponsored by the Department of Housing and
Urban Development. At this meeting, there was a specific workshop
called "Advocacy rights for the Handicapped." It was moderated by
the Southern Nevada Association for the Handicapped with presenters
from Mid-Peninsula Citizens for Fair Housing, Sioux Falls Human
Rights Commission, Washington State Human Rights Commission and
Tacoma Human Rights Commission. There was not one disabled person
on the panel. In this day and age, at an anti-discrimination conference,
I was absolutely outraged. In my letter to the director of Region
VIII, I pointed out that if the workshop had been on Black Advocacy,
and there were no blacks on the podium, pandemonium would follow.
I appreciate you spending time and efforts to address
these issues, and support whole heartedly the Americans with Disabilities
Act of 1988. Discrimination is truly alive and well in these United
States. We disabled absolutely must have the Act to begin to combat
the paternalism, discrimination and the injustices perpetrated upon
certain citizens of America.
Barbara G. Toomer
West Valley City, UT
August 20, 1988
Dear Mr. Dart:
Being a bilateral arm amputee, I have some serious
concerns regarding conditions facing handicapped citizens of the
United States. The Federal Government and most States have done
a commendable job of eliminating architectural barriers for those
with ambulatory handicaps, providing television closed captions
for hearing impaired, and providing audible signals at traffic intersections
and braille warnings in buildings for the sightless.
There is, however, one area that has not received
sufficient attention and that is the area concerning barriers that
continually confront individuals who have lost or lost the use of
their hands or arms. An example is the fact that in most public
buildings the door-opening hardware, especially on internal doors,
consists of round knobs instead of levers. Other problems that face
upper-extremity handicapped are such things as the design of pay
telephones, vending machines, packaging and many consumer products.
It would be appreciated if some attention could be
directed towards this neglected area.
Sincerely,
Edwin V. Rawley
Bountiful, UT
October 3, 1988
To Congressional Task Force
In my position as rehabilitation counselor, I often
see clients who have been fired from their jobs because of the onset
of or an existing disability. Most of the time, it seems that the
employer has not instituted any measures of accommodations; and
in many cases, clients were fired simply because of the disability--not
because of the inability to perform the duties of the work. I feel
this is totally unfair and some measures of correction should be
implemented as soon as possible.
Mrs. Kareen D. Windley Virginia Beach, VA
Discrimination Diary
Ken Burns
June 27,1988
I went to a big department store and asked for some
information. The woman didn't pay attention to me. She pretended
she did not hear me. People don't want to take the time to listen.
If they did, there would not be so much complaining.
The new driver on the van does that. He doesn't listen.
When I wanted to go to "Best Buy", he didn't listen. He brought
me home instead, because that's where he picked me up.
I went to City Hall to find about progress on the
issue of putting in sidewalks throughout the community. I couldn't
get into the building because there are three steps going up to
the front door and two steps going down on the inside. We (those
who use wheelchairs) stayed outside the front door. We put up signs
saying that we couldn't get in. They didn't have microphones and
loud speakers so we couldn't find out what was going on inside,
and we couldn't speak
There are no sidewalks outside my door. I can't go
outside to take a breath of fresh air because if I did, my wheelchair
would get stuck in the ground. It keeps me from going to the store
to do my personal shopping. I have to order a van to take me to
the store and that way, again, I get no fresh air or see how warm
the sun is. With sidewalks, I could drive my chair to the store
and do my personal shopping. That way, I could enjoy the beautiful
weather and enjoy driving in my chair. I have to take the van just
to go one block and it costs money.
If I want to go to the front door of the Grand Mall,
there is no place for the van to park. We have to go a block and
a half down the street to get out and then go all the way back to
get inside.
Once, when I was out, I had to go to the bathroom
and I had a female aid with me. I went to a near by McDonald's and
asked the person cleaning tables to check to see if there was any
other man in the bathroom. There was no one. Fortunately, there
was a lock on the door and so my attendant was able to help me use
the bathroom in privacy.
Reason From Rhyme:
Poems From Outside the Mainstream
by Carolyn Schwartz
Speak Out
The doctors gave me a drug to survive.
It cured my body, but was I alive?
I was only a child, what had I done?
to be bound in a cell and locked from the sun.
"But I'd committed no crime!" I cried
out in vain, yet the bars were so real
and no family came
The worst was later when I went home.
I found out what it was to be truly alone.
I was seen as different and set apart.
No day care for me, no place with a heart.
I am just the same as any of you.
I contribute my work to society too.
So before you condemn what you don't
understand. Let me reach out to you
and come touch my hand.
APPENDIX F
KEY CONCEPTS IN THE ADA
This appendix is intended only to provide elementary
descriptions of several, select concepts in the ADA to supplement
the main text, principally regarding Title I and Title III. This
appendix should not be used as a technical source. For complete
information, readers should consult the organizations providing
technical assistance that are listed in Appendix J.
Definition of Disability
The ADA prohibits discrimination against "individuals
with disabilities." Unlike prohibitions of discrimination according
to race or gender, where one is automatically a member of a protected
class by one's physical characteristics at birth, for one to be
protected by the ADA one must qualify as a person with a disability.
According to the ADA, a person with a disability is one who meets
at least one of three criteria: 1) having a physical or mental impairment
that substantially limits one's ability to perform one or more major
life activities; 2) having a record of such an impairment; or 3)
being regarded as having such an impairment.
Regulations for the ADA define an impairment as "any
physiological disorder or condition, cosmetic disfigurement, or
anatomical loss affecting one or more of the following body systems:
Neurological; musculoskeletal; special sense organs (including speech
organs that are not respiratory, such as vocal cords, soft palate,
and tongue); respiratory, including speech organs; cardiovascular;
reproductive; digestive; genitourinary; hemic and lymphatic; skin;
and endocrine. It also means any mental or psychological disorder,
such as mental retardation, organic brain syndrome, emotional or
mental illness, and specific learning disabilities."
In addition to having an impairment, to qualify under
the first prong of the definition of disability one must also have
an impairment that "substantially limits" "major life activities."
According to the regulations, major life activities include such
things as "caring for one's self, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning, and working." The
regulations state that determination of whether a limitation is
"substantial" should be based on whether one cannot do the activity
at all or by comparing "the conditions, manner, or duration under
which" life activities can be performed with the abilities of most
people. Thus, the inability to walk over ten miles without experiencing
some pain or fatigue would generally not be considered a disability,
since most people would feel such discomfort. However, the inability
to walk because of paralysis, or the inability to walk without the
assistance of crutches, could be considered disabilities.
The second prong of the definition of disability protects
individuals with a record of an impairment--whether one actually
had an impairment or was misclassified as having an impairment.
This prevents people who have recovered from (or never had) an impairment
from being discriminated against according to a past experience.
For example, the ADA protects individuals who have survived cancer
or heart disease. It also protects, for example, someone mistakenly
identified as having a mental illness.
The third prong of the definition protects persons
whose life activities are not substantially limited, but who are
treated discriminatorily as if their performance of life activities
was limited. The basis for this prong of the definition of disability
is that sometimes negative reactions to impairments are more disabling
than the impairments themselves. As stated in the regulations: "A
person who is not allowed into a public accommodation because of
the myths, fears, and stereotypes associated with disabilities would
be covered under this third test whether or not the person's physical
or mental condition would be considered a disability under the first
or second test in the definition."
The ADA expressly excludes certain impairments or
conditions and certain individuals from coverage. Namely, the ADA
excludes "transvestism, transsexualism, pedophilia, exhibitionism,
voyeurism, gender identity disorders not resulting from physical
impairments, other sexual behavior disorders, compulsive gambling,
kleptomania, pyromania, and psychoactive substance use disorders
resulting from current illegal use of drugs." The ADA also excludes
homosexuality and bisexuality, which are not considered impairments.
Moreover, the ADA excludes current users of illegal drugs. Nevertheless,
if any individual fitting one of these exclusionary criteria also
has a disability covered by the ADA, such an individual would be
protected.
Neither the ADA nor the regulations offer a concrete
list of each condition or impairment that qualifies as a disability.
This is largely because it would not be possible to account for
every known and unknown or future impairment that could be considered
a disability. Moreover, identical impairments may not equally affect
individuals" ability to perform major life activities.
In addition to protecting individuals with disabilities,
the ADA offers protection to individuals who are associated with
someone who has a disability. For example, an employer could not
refuse to hire or fire an individual because his or her spouse or
child had a disability. This protection is not limited by the type
of association: it applies equally to friends, colleagues, care
givers, and other forms of human association.
Nondiscrimination
The main purpose of the ADA, as with other civil rights
legislation, is to prohibit and eliminate discrimination against
individuals with disabilities. There are, however, two different
concepts of nondiscrimination developed in the ADA. The first is
the concept traditionally found in other civil rights laws: decisions
in employment or the provision of services cannot be based on an
individual's disability. In the context of employment this applies
to all employment decisions, including hiring, firing, and promotions.
Thus, the ADA prohibits an employer from refusing to hire an individual
simply because he or she was deaf. Likewise, operators of public
transportation or a place of public accommodation cannot deny access
to, for example, a person simply because he or she uses a wheelchair.
The ADA also incorporates a second concept of nondiscrimination:
requiring that businesses, public transportation providers, operators
of public accommodations, and communications providers take steps
to ensure that people with disabilities are not discriminated against.
The ADA does not require that an employer should select a person
with a disability over an equally- or better- qualified person without
a disability. As stated in the Senate Labor and Human Resources
Committee report: "The employer's obligation is to consider applicants
and make decisions without regard to an individual's disability,
or the individual's need for reasonable accommodation. But, the
employer has no obligation under this legislation to prefer applicants
with disabilities over other applicants on the basis of disability."
Rather, the ADA requires taking steps to provide Equality
of Opportunity. In the context of employment, this can mean
providing such "reasonable accommodations" as modifying a work schedule.
With respect to public transportation this can mean equipping buses
with wheelchair lifts. Concerning places of public accommodation,
this can mean allowing a guide dog to enter a business where pets
are not allowed. With respect to telecommunications, this generally
means providing a relay-service that enables a deaf or hard-of-hearing
person to use text-devices to communicate with hearing persons through
an operator/interpreter.
Reasonable Accommodation
In many respects, the concept of "reasonable accommodation"
is the central concept of civil rights for persons with disabilities.
It was created for the implementation of Section 504 of the Rehabilitation
Act, and applies to employment decisions. Reasonable accommodations
refer to steps taken by an employer to enable a person with a disability
to perform his or her job responsibilities. Rather than define precisely
what a reasonable accommodation is, the ADA sets out examples of
reasonable accommodations.
There are three basic types of reasonable accommodations.
The first concerns structural alterations to an employment setting
to enable, for example, a person with a wheelchair to gain access
to the employment site and have an accessible work-site, which might
include a raised desk. The second type of reasonable accommodation
refers to modification of employment practices. This might include
permitting a person with a disability to have a modified work schedule
that could accommodate medical treatments. It could also include
adjusting examinations, training materials, or employer policies
to enable an individual to take an oral rather than written exams,
for example, or allowing a guide dog into the workplace. The third
type of reasonable accommodation refers to acquiring equipment,
services, or devices for a person with a disability. For example,
a reasonable accommodation might be providing a deaf or hard-of-hearing
person with an amplified telephone headset, or providing a personal
assistant for an individual with cerebral palsy.
Under the ADA, employment discrimination includes
a failure to provide "reasonable accommodations" to the known physical
or mental limitations of a "qualified person with a disability,"
meaning an individual who, with or without reasonable accommodation,
can perform the "essential functions" of a given position. This
means that employers are obligated to provide reasonable accommodations
to persons who meet employment criteria, except criteria that an
individual cannot meet because of a disability. For example, a person
with a disability must meet the same educational requirements any
other applicant has to meet. If, however, an individual is "otherwise
qualified" for a position, an employer is obligated to provide reasonable
accommodations that enable an individual to be fully qualified for
the job in question. This might include providing a hand brace that
enables a person with limited hand function to type at a required
rate.
Similar to the definition of disability, the definition
of reasonable accommodation is intentionally flexible. It is based
on a notion of individualized treatment, that accommodations should
be tailored to the specific needs of each individual with a disability.
The ADA, the accompanying regulations, and congressional reports
encourage employers and employees to collaborate in determining
appropriate accommodations through a "problem-solving" approach.
According to a congressional report, the intent for the ADA was
that "the reasonable accommodation requirement is best understood
as a process in which barriers to a particular individual's equal
employment opportunity are removed," rather than applying accommodations
to certain disabilities according to a predetermined, inflexible
standard.
Essential Functions
According to the ADA, a qualified individual need
be able to perform only the "essential functions" of a given position,
meaning those job tasks "that are fundamental and not marginal."
This is directed at situations in which an employer may, for example,
require a driver's license as part of the job description so that
the employee could run an occasional errand. The legislative intent
for the ADA was that these and similar types of responsibilities
tangential to the basic or essential portions of a job could be
assumed by another employee.
Undue Hardship
The unique nature of civil rights for disabled persons
means that providing equal opportunity can cost money for businesses,
governments, and other entities covered by the ADA. The ADA incorporates
a limit to the costs employers must incur: failure to make reasonable
accommodations does not constitute discrimination if an employer
demonstrated that an accommodation would impose an "undue hardship"
on its business.
As with other legal concepts in the ADA, undue hardship
is designed to be flexible and determined on a case-by-case basis.
An undue hardship means "an action requiring significant difficulty
or expense." The ADA identifies four factors to be considered in
assessing whether a reasonable accommodation constituted an undue
hardship, including the resources of a local facility in addition
to a parent company:
- "the nature and cost of the accommodation needed
under this Act";
- "the overall financial resources of the facility
or facilities involved in the provision of the reasonable accommodation;
the number of persons employed at such facility; the effect on
expenses and resources, or the impact otherwise of such accommodation
upon the operation of the facility";
- "the overall financial resources of the covered
entity; the overall size of the business of a covered entity with
respect to the number of its employees; the number, type, and
location of its facilities; and
- "the type of operation or operations of the covered
entity, including the composition, structure, and functions of
the workforce of such entity; the geographic separateness, administrative,
or fiscal relationship of the facility or facilities in question
to the covered entity."
The limit of undue hardship is one of several "defenses"
against charges of discrimination available to employers. For example,
a criteria that tends to screen out individuals with disabilities
may be acceptable if it "has been shown to be job-related and consistent
with business necessity," and that reasonable accommodation cannot
remedy the situation. Also, the ADA allows a religious organization
or religious educational institutional to require employees to conform
to its religious tenets. In addition, the ADA enables restaurant
operators to remove an employee from food handling positions if
he or she has a contagious disease that has been shown to be transmitted
through food or drink. Furthermore, the ADA allows employers to
prohibit the use of illegal drugs and alcohol in the workplace.
Public Accommodations
Public accommodations are private establishments that
affect travel, trade, traffic, commerce, transportation, or communication.
The ADA identifies 12 types of establishments: places of lodging
(e.g., hotels); establishments serving food or drink (e.g., restaurants);
places of exhibition of entertainment (e.g. theaters); places of
public gathering (e.g., convention centers); sales or rental establishments
(e.g., grocery stores); service establishments (e.g., professional
offices); stations used for specified public transportation (e.g.,
terminals); places of public display or collection (e.g., museums);
places of recreation (e.g., amusement parks); places of education
(e.g., secondary schools); social service center establishments
(e.g., day care centers); and places of exercise or recreation (e.g.,
gymnasiums). Obligations to comply with the ADA apply equally to
owners, managers, and renters of places of public accommodations.
Prohibited forms of discrimination by places of public
accommodation include: denying participation in or benefit from
"the goods, services, facilities, privileges, advantages, or accommodations
of an entity" because of an individual's disability; affording individuals
with disabilities with unequal participation in or benefit from
"goods, services, etc."; providing people with disabilities "goods,
services, etc." that are different or separate from those provided
to others (unless necessary providing opportunities that are equally
effective as others); and excluding or otherwise denying equal "goods,
services, etc." to individuals known to have a relationship or association
with a person with a disability.
Although "reasonable accommodation" is not directly
used in discussing nondiscrimination by places of public accommodation,
the ADA requires that such establishments take steps to provide
equal opportunity that parallel the concept of reasonable accommodation
used with respect to employment. Three types of actions are required.
The first refers to structural accessibility, and is described separately
under the heading "readily achievable." The second type includes
modifications to policies, practices, and procedures. For example,
a restaurant must modify its rule forbidding pets to enable an individual
with a guide dog to enter the restaurant, in the same way such a
person must be able to enter a workplace. The third type of actions
are providing aids or services, which are described separately under
the heading "Auxiliary Aids and Services."
Readily Achievable
The ADA requires that all new buildings for places
of public accommodation be "readily accessible to and usable by"
people with disabilities. For existing structures, the ADA applies
a new legal concept, "readily achievable." As defined by the ADA,
readily achievable "means easily accomplishable and able to be carried
out without much difficulty or expense." This is a much more modest
standard than the "undue hardship" limitation for providing reasonable
accommodations.
The ADA requires places of public accommodation to
remove architectural and communication barriers to accessibility
that are structural in nature wherever "readily achievable." As
with undue hardship, "readily achievable" is crafted to be flexible
and determined on a case-by-case basis. Moreover, the same four
factors identified for undue hardship--cost of accommodation, overall
resources of local facility, overall resources of covered entity,
and type of operations and relationship between local facility and
covered entity--are to be used in determining whether a specific
action is "readily achievable." According to the Senate Committee
on Labor and Human Resources report, the types of barrier removal
envisioned by the term include "the addition of grab bars, the simple
ramping of a few steps, the lowering of telephones, the addition
of raised letter and braille markings on elevator control buttons,
the addition of flashing alarm lights, and similar modest adjustments."
Other examples include rearranging tables in a restaurant or displays
in a retail store to provide access for a wheelchair.
Where a place of accommodation can demonstrate that
removal of a barrier is not readily achievable, the ADA requires
that the entity make the "goods, services, facilities, privileges,
advantages, or accommodations available through alternative methods."
Alternative methods include: "coming to the door to receive or return
dry-cleaning; allowing a disabled patron to be served beverages
at a table even though nondisabled persons having only drinks are
required to drink at the inaccessible bar; providing assistance
to retrieve items in an inaccessible location; and rotating movies
between the first floor accessible theater and a comparable second
floor inaccessible theater." The obligation to provide goods, services,
etc., however, is also limited to those methods that are readily
achievable.
"Readily achievable" should not be confused with the
term "readily accessible to and usable by." As the Senate report
states: "While the word "readily" appears in both phrases and has
roughly the same meaning in each context"easily, without much difficulty--the
concepts of "readily achievable" and "readily accessible" are sharply
distinguishable and present almost polar opposites in focus." On
one hand, "readily accessible" focuses on the ease with which individuals
with disabilities can enter or use a facility and its services.
On the other hand, "readily achievable" focuses on the ease with
which a business operator can eliminate a barrier.
Auxiliary Aids and Services
The third type of actions required by the ADA with
respect to places of public accommodation is the provision of auxiliary
aids and services. These include, for example, providing brailled
documents for blind person, or having a waiter read a menu to a
blind person. Another example would be providing an interpreter
for a deaf or hard-of-hearing person. As with reasonable accommodation
in the employment section, the obligation to provide auxiliary aids
and services is limited by the standard of undue burden. Undue burden
is analogous to the phrase undue hardship used in the employment
title; the same four factors are to be applied when considering
whether an aid or service causes an undue burden.
APPENDIX
G
PRESIDENT BUSH'S REMARKS AT THE SIGNING
Welcome to every one of you, out there in this splendid
scene of hope, spread across the South Lawn of the White House.
I want to salute the members of the United States Congress, the
House and the Senate who are with us today--active participants
in making this day come true. (Applause.)
This is, indeed, an incredible day. Especially for
the thousands of people across the nation who have given so much
of their time, their vision, and their courage to see this Act become
a reality.
You know, I started trying to put together a list
of all the people who should be mentioned today. But when the list
started looking a little longer than the Senate testimony for the
bill, I decided I better give up, or we'd never get out of here
before sunset. So, even though so many deserve credit, I will single
out but a tiny handful. And I take those who have guided me person
ally over the years.
Of course, my friends, Evan Kemp and Just Dart up
here on the platform with me. (Applause.) And of course, I hope
you'll forgive me for also saying a special word of thanks to two
who--from the White House--Boyden Gray and Bill Roper, labored long
and hard. (Ap plause.)
And I want to thank Sandy Parrino, of course, for
her leadership and I again--(applause)--it is very risky with all
these members of congress here who worked so hard. But I can say
on a very personal basis, Bob Dole has inspired me. (Applause.)
And then, the organizations. So many dedicated organizations
for people with disabilities who gave their time and their strength
and, perhaps most of all, everyone out there across the breadth
of this nation, the 43 million Americans with disabilities. You
have made this happen. All of you have made this happen. (Applause.)
To all of you, I just want to say your triumph is
that your bill will now be law, and that this day belongs to you.
On behalf of our nation, thank you very, very much. (Applause.)
Three weeks ago we celebrated our nation's Independence
Day. Today, we're here to rejoice in and celebrate another "Independence
Day," one that is long overdue. With today's signing of the landmark
Americans with Disabilities Act, every man, woman and child with
a disability can now pass through once-closed doors into a bright
new era of equality, independence and freedom.
As I look around at all these joyous faces, I remember
clearly how many years of dedicated commitment have gone into making
this historic new civil rights Act a reality. It's been the work
of a true coalition. A strong and inspiring coalition of people
who have shared both a dream and a passionate determination to make
that dream come true. It's been a coalition in the finest spirit.
A Joining of Democrats and Republicans. Of the Legislative and the
Executive Branches. Of federal and state agencies. Of public officials
and private citizens. Of people with disabilities and without.
This historic Act is the world's first comprehensive
declaration of equality for people with disabilities. The first.
(Applause.) Its passage has made the United States the international
leader on this human rights issue. Already, leaders of several other
countries, including Sweden, Japan, the Soviet Union and all 12
members of the EEC, have announced that they hope to enact now similar
legislation. (Applause.)
Our success with this Act proves that we are keeping
faith with the spirit of our courageous forefathers who wrote in
the Declaration of Independence: "We hold these truths to be self-evident,
that all men are created equal, that they are endowed by their Creator
with certain unalienable rights." These words have been our guide
for more than two centuries as we've labored to form our more perfect
union. But tragically, for too many Americans, the blessings of
liberty have been limited or even denied.
The Civil Rights Act of "64 took a bold step towards
righting that wrong. But the stark fact remained that people with
disabilities were still victims of segregation and discrimination,
and this was intolerable. Today's legislation brings us closer to
that day when no Americans will ever again be deprived of their
basic guarantee of life, liberty, and the pursuit of happiness.
(Applause.)
This Act is powerful in its simplicity. It will ensure
that people with disabilities are given the basic guarantees for
which they have worked so long and so hard. Independence, freedom
of choice, control of their lives, the opportunity to blend fully
and equally into the right mosaic of the American mainstream.
Legally, it will provide our disabled community with
a powerful expansion of protections and then basic civil rights.
It will guarantee fair and just access to the fruits of American
life which we all must be able to enjoy. And then, specifically,
first the ADA ensures that employers covered by the Act cannot discriminate
against qualified individuals with disabilities. (Applause.) Second,
the ADA ensures access to public accommodations such as restaurants,
hotels, shopping centers and offices. And third, the ADA ensures
expanded access to transportation services. (Applause.)
And fourth, the ADA ensures equivalent telephone services
for people with speech or hearing impediments. (Applause.) These
provisions mean so much to so many. To one brave girl in particular,
they will mean the world. Lisa Carl, a young Washington State woman
with cerebral palsy, who I'm told is with us today, now will always
be admitted to her hometown theater.
Lisa, you might not have been welcome at your theater,
but I'll tell you--welcome to the White House. We're glad you're
here. (Applause.) The ADA is a dramatic renewal, not only for those
with disabilities, but for all of us. Because along with the precious
privilege of being an American comes a sacred duty--to ensure that
every other American's rights are also guaranteed.
Together, we must remove the physical barriers we
have created and the social barriers that we have accepted. For
ours will never be a truly prosperous nation until all within it
prosper. For inspiration, we need look no further than our own neighbors.
With us in that wonderful crowd out there are people representing
18 of the daily points of light that I've named for their extraordinary
involvement with the disabled community. We applaud you and your
shining example. Thank you for your leadership for all that are
here today. (Applause.)
Now, let me just tell you a wonderful story--a story
about children already working in the spirit of the ADA. A story
that really touched me. Across the nation, some 10,000 youngsters
with disabilities are part of Little League's Challenger Division.
Their teams play just like others, but" and this is the most remarkable
part--as they play at their sides are volunteer buddies from conventional
Little League teams. All of these players work together. They team
up to wheel around the bases and to field grounders together and
most of all, just to play and become friends. We must let these
children be our guides and inspiration.
I also want to say a special word to our friends in
the business community. You have in your hands the key to the success
of this Act. For you can unlock a splendid resource of untapped
human potential that, when freed, will enrich us all.
I know there have been concerns that the ADA may be
vague or costly, or may lead endlessly to litigation. But I want
to reassure you right now that my administration and the United
States Congress have carefully crafted this Act. We've all been
determined to ensure that it gives flexibility, particularly in
terms of the timetable of implementation; and we've been committed
to containing the costs that may be incurred.
This Act does something important for American business,
though, and remember this--you've called for new sources of workers.
Well, many of our fellow citizens with disabilities are unemployed,
they want to work and can work. And this is a tremendous pool of
people. (Applause.) And remember this is a tremendous pool of people
who will bring to jobs diversity, loyalty, proven low turnover rate,
and only one request, the chance to prove themselves.
And when you add together federal, state, local and
private funds, it costs almost $200 billion annually to support
Americans with disabilities, in effect, to keep them dependent.
Well, when given the opportunity to be independent, they will move
proudly into the economic main stream of American life, and that's
what this legislation is all about. (Applause.)
Our problems are large, but our unified heart is larger.
Our challenges are great, but our will is greater. And in our America,
the most generous, optimistic nation on the face of the earth, we
must not and will not rest until every man and woman with a dream
has the means to achieve it.
And today, American welcomes into the mainstream of
life all of our fellow citizens with disabilities. We embrace you
for your abilities and for your disabilities, for our similarities
and indeed for our differences, for your past courage and your future
dreams.
Last year, we celebrated a victory of international
freedom. Even the strongest person couldn't scale Berlin Wall to
gain the elusive promise of independence that lay just beyond. And
so together we rejoiced when that barrier fell.
And now I sign legislation which takes a sledgehammer
to another wall, one which has--(applause)--one which has, for too
many generations, separated Americans with disabilities from the
freedom they could glimpse, but not grasp. Once again, we rejoice
as this barrier falls, proclaiming together we will not accept,
we will not excuse, we will not tolerate discrimination in America.
(Applause.)
With, again, great thanks to the members of the United
States Senate, many of whom are here today, and those who worked
so tirelessly for this legislation on both sides of the aisles.
And to those members of the House of Representatives with us here
today, Democrats and Republicans as well, I salute you.
And on your behalf, as well as the behalf of this
entire country, I now lift my pen to sign the Americans with Disabilities
Act and say, let the shameful wall of exclusion finally come tumbling
down. (Applause.)
God bless you all.
(The Act is signed.)
END 10:26 A.M. EDT 7/26/90
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