Congressional Research Service
The Library of Congress

Washington, D.C. 20540

March 22, 1989

TO: House Education and Labor
	Attention: Pat Morrissey

FROM: American Law Division

SUBJECT: Analysis of Draft Version of the Americans with Disabilities Act of 1989

	This memorandum is furnished in response to your rush request for an analysis of a draft version of the Americans with Disabilities Act of 1989 (hereafter cited as draft bill). You were particularly interested in comparing the draft bill with the Americans with Disabilities Act of 1988, H.R. 4498 and
S. 2345, from the 100th Congress. For convenience, these identical bills will be referred to as H.R. 4498.

	The Americans with Disabilities Act originated with a proposal from the National Council on the Handicapped^1 to establish a comprehensive nationwide prohibition against discrimination on the basis of handicap. Although federal legislation, section 504 of the Rehabilitation Act of 1973, 29 U.S.C. sec. 794, already exists concerning discrimination against individuals with handicaps, the existing law is limited to programs or activities receiving federal financial assistance, executive agencies, or the U.S. Postal Service. Both the draft bill and H.R. 4498 would provide broader coverage than section 504 since they would cover the private sector as well. However, there are significant differences between the two pieces of legislation. Due to time constraints, this memorandum will be limited to a brief discussion of several of the major distinctions.

^1 The National Council on the Handicapped is an independent federal agency. Its statutory functions include providing recommendations regarding individuals with handicaps to the Congress.

OVERVIEW OF THE LEGISLATION

	First, it is helpful to look at the forms of the legislation. H.R. 4498 has two central sections, sections 4 and 5 which contain the general prohibitions of discrimination. Section 4 of H.R. 4498 discusses the scope of discrimination prohibited and provides that no person shall be subjected to discrimination on the basis of handicap in employment, the sale or rental of housing, public accommodations covered by title II of the Civil Rights Act of 1964, transportation services, the action, practices and operations of a State or its political subdivision, or broadcasts, communications or telecommunications services. Section 5 of H.R. 4498 discusses the forms of discrimination prohibited and describes certain acts and omissions that constitute discrimination on the basis of handicap. These provisions parallel requirements contained in the regulations under section 504.^2 The draft bill,
in contrast, does not contain a section comparable to section 4 but does contain a section parallel to section 5 of H.R. 4498.

	H.R. 4498 contains a specific section on housing, a section discussing the limitations on the duties of accommodation and barrier removal, a section on regulations which contains specific guidance relating to such subjects as transportation and communications, and a section on enforcement. The
structure of the draft bill is quite different. It contains specific sections on employment and telecommunications relay services and divides the other requirements into two categories: one relating to public services and one relating to public accommodations and services operated by private entities.
The requirements for public accommodations and services operated by private entities are generally less stringent than those imposed on the public sector. Both H.R. 4498 and the draft bill contain similar statements of findings and purposes and contain differing sections describing the relationship of the new
legislation to section 504. They both also contain definitions sections which have some significant differences. Having examined the structure of the two pieces of legislation, several of the specific distinctions between the bills will now be analyzed.

^2 See e.g., 28 C.F.R. sec. 41.51.

DEFINITIONS

	One of the major distinctions between the bills is found in the definitions section. H.R. 4498 defines the terms “on the basis of handicap,” “physical or mental impairment," “perceived impairment,” "record of impairment," and "reasonable accommodation.” The draft bill, on the other hand, only contains general definitions of "handicap," and "state."^3 The draft bill’s exclusion of the majority of terms defined in H.R. 4498 is probably not of critical importance since those terms are those defined in the regulations under section 504 and the general definition of "handicap" used in the draft bill is like that applicable to section 504. Therefore, it would be likely that the regulatory definitions of the terms used in the general definition of “handicap” under section 504 would also be used in defining the same language in the draft bill thus rendering their inclusion in statutory language unnecessary.

	A more significant distinction regarding the definitions is the fact that the draft bill, in using the definition applicable to section 504, includes the phrase “substantially limits." For the purposes of the draft bill, the term handicap is defined in part as "a physical or mental impairment that
substantially limits one or more of the major life activities of such individuals..." H.R. 4498, in contrast, defines the term "on the basis of handicap" as meaning "because of a physical or mental impairment, perceived impairment, or record of impairment.” The definition in H.R. 4498 is arguably
broader and could include minor, common conditions such as left-handedness.

^3 Other definitions which are applicable only to particular titles of the legislation are found elsewhere in the draft bill. For example, title IV of the draft bill, public accommodations and services operated by private entities contains definitions of “commerce,” “mass transportation," and “public accommodation."

GENERAL PROVISIONS ON DISCRIMINATION

	Although the general sections relating to the forms of discrimination prohibited are similar in the two bills, there are some potentially significant distinctions. The draft bill deletes the section that was contained in H.R. 4498 providing that it will be discriminatory to establish or impose or to fail or refuse to remove any architectural, transportation or communication barriers. Arguably this would be covered by the more general statements in the draft bill and the more specific references in the draft bill’s subsequent sections dealing with transportation and communications. The draft bill adds a section not contained in H.R. 4498 concerning qualification standards which allows such standards to include requiring that the current use of alcohol or drugs not pose a direct threat to property or the safety of others in the workplace or program and that an individual with a currently contagious disease or infection not pose a direct threat to the health or safety of other individuals in the workplace or program. This section is similar to amendments which have been made to the definitions section applicable to section 504 ^4 and thus would most likely be included in the interpretation of H.R. 4498 even in the absence of specific language since the general language of H.R. 4498 is similar to that of section 504. However, the draft bill’s version is broader in that it includes programs whereas the section 504 definition refers only to employment. The addition of the section adds clarity but probably does not change what would be applicable statutory requirements in its absence.^5

^4 29 U.S.C. sec. 706(8).

^5 See School Board of Nassau County v. Arline, 94 L.Ed.2d 307 (1987).

EMPLOYMENT

	Both the draft bill and H.R. 4498 would prohibit employment discrimination but there are significant differences in the way in which this is done. Generally, the draft bill contains less stringent requirements than H.R. 4498. The draft bill specifically exempts bona fide private membership clubs from coverage, and does not contain specific provisions found in H.R. 4498 concerning preemployment inquiries, affirmative action, and confidentiality. Some of these specific provisions found in H.R. 4498, such as the provision on preemployment inquiries could arguably be required under the draft bill as well due to the general language prohibiting employment discrimination. However, it is unlikely that a court would read in the affirmative action requirement of H.R. 4498 from the general language of the draft bill.

	Both the draft bill and H.R. 4498 limit the nondiscrimination requirements of accommodation but do so in differing ways. The draft bill does not require accommodation if such accommodation would impose an undue hardship on the operation of a business while H.R. 4498 would not require accommodation if it would fundamentally alter the essential nature, or threaten the existence of, the program, activity, business, or facility in question.^6 The undue hardship language is similar to that used by the Supreme Court in Southeastern Community College v. Davis, 442 US. 397 (1979), and subsequently placed in regulation. These regulations state that a recipient must make reasonable accommodation for an otherwise qualified handicapped applicant or employee "unless the recipient can demonstrate that the accommodation would impose an undue hardship on the operation of its program. ^7 The fundamental alterations language is more closely akin to the Supreme Court’s discussion of section 504’s requirements in Alexander v. Choate, 469 US. 287 (1985). There the Court found that “while a grantee need not be required to make ‘fundamental’ or ‘substantial’ modifications to accommodate the handicapped it may be required to make ‘reasonable’ ones.” It could be argued, however, that the language in H.R. 4498 is more expansive than the requirement articulated by the Court.

	It is interesting to compare the possible substantative differences between the language of the draft bill (undue burdens) and the language used by the Court in Alexander v. Choate (fundamental or | substantial modifications). In a recent third circuit case, ADAPT v. Burnley, No. 96-2989 (3d Cir. Feb. 13, 1989), the court discussed the meaning of accommodation in the context of transportation and found that ordering newly purchased buses to be accessible to the mobility-disabled was not a fundamental alteration and did not create an undue financial or administrative burden. The ADAPT court did not specifically attempt to distinguish between these two phrases but rather read them together as part of the section 504 nondiscrimination mandate. It could be argued that since the draft bill’s language in the general prohibition against discrimination parallels the section 504 regulatory language and the draft bill’s language on accommodation also parallels the undue burden language used in section 504 jurisprudence, it would be likely that section 504 interpretation generally would apply. In other words, it is likely that a court interpreting the draft bill would look for guidance to cases such as ADAPT and utilize the concept of fundamental or substantial alterations in conjunction with the concept of undue burden. However, it should be emphasized that the language in H.R. 4498 was arguably more expansive than the interpretations under section 504 so that the change in the draft bill would most likely bring the draft bill into conformity with section 504 but would make it less stringent than H.R. 4498.

^6 HR. 4498, sec. 7(a).

^7 98 CF.R. sec. 41.53.

TRANSPORTATION

	Both H.R. 4498 and the draft bill would mandate transportation accessibility but the requirements of the draft bill would appear to provide less coverage than H.R. 4498. First, the draft bill divides the coverage of transportation accessibility into two categories, public and private, and transportation services run by private entities would appear to have fewer standards applicable to them. There is no such division of requirements in H.R. 4498. The draft bill only requires a good faith effort to locate accessible used vehicles while H.R. 4498 contains no such exception for used vehicles. The time limitations on accessibility requirements also vary. The draft bill requires public transportation to make all structural changes required by the bill within 10 years with regard to intercity, rapid and light rail vehicles, 5 years with regard to commuter rail, and 3 years with regard to key stations, although this time limit for key stations could be extended by the Secretary of Transportation for up to 20 years for extraordinarily expensive structural changes or replacements. H.R. 4498 requires that all vehicles purchased or placed into service later than one year after enactment shall be accessible and that within a reasonable amount of time, not to exceed 7 years, the peak fleet must have 50% of vehicles and rolling stock accessible.

PUBLIC ACCOMMODATIONS

	Section four of H.R. 4498 concerns the scope of discrimination, and specifically prohibits discrimination in public accommodations to the same extent that such discrimination is covered by title II of the Civil Rights Act of 1964, 42 U.S.C. sec. 2000a. The draft bill does not contain a section parallel to section 4 of H.R. 4498 but it does prohibit discrimination in public accommodations in its title IV and contains a general provision parallel to that of Title II of the Civil Rights Act of 1964. However, the draft bill also contains a section construing the general prohibition on discrimination in public accommodations which limits the general prohibition. For example, the draft bill would prohibit segregation of persons with disabilities because of the absence of auxiliary aids and services “unless the entity can demonstrate that taking such steps would result in undue burden (sic).^8 In addition, the draft bill would require the removal of architectural and communication barriers “where such removal is readily achievable^9

^8 Draft bill, section 402(b)(1)(C).

^9 Draft bill sec. 402(b)(1)(D)(i).


COMMUNICATIONS

	Discrimination in communications is prohibited in the draft bill and in H.R. 4498 but they do so in different ways. H.R. 4498 specifically includes broadcasts, communications, or telecommunications in its section 4 on the scope of discrimination prohibited. The draft bill contains no similar section but both bills contain sections on forms of discrimination which could arguably cover communications. In addition, H.R. 4498 provides for regulations to be used by the Federal Communications Commission requiring the prohibition or removal of communication barriers and for making reasonable accommodations. In addition, H.R. 4498 requires these regulations to include requirements for progressively increasing the proportion of programs, advertisements, and announcements that are captioned. The draft bill, in addition to the general section, contains a title V specifically on telecommunications relay services. The draft bill contains no specific section on captioning.

SECTION 504

Both the draft bill and H.R. 4498 draw heavily on section 504 jurisprudence for their general concepts and, in some places, specific language. Therefore, the question of the relationship between these bills and section 504 has been an important issue under both pieces of legislation. H.R. 4498 contains a specific section providing that “nothing in this Act shall be construed to affect or change the nondiscrimination provisions contained in title V of the Rehabilitation Act....." ^10 This language raises the issue of whether, in a situation where both section 504 and the ADA would apply, the proposed legislation would preclude any change in section 504 coverage, even a change which might broaden the protections against discrimination. The draft bill contains a similar section but is drafted so as to avoid this issue. The draft bill provides that "nothing in this Act shall be construed to reduce the scope of coverage or apply a lesser standard than the coverage required or the standards applied under title V of the Rehabilitation Act...." ^11 In addition, the draft bill, in several places contains specific references to section 504 which could be interpreted as changing the coverage of the section. For example, the draft bill at section 303(b) concerning discrimination in mass transportation provides that it shall be considered discriminatory for the purposes of the act and section 504 of the Rehabilitation Act for an individual or entity to purchase or lease certain vehicles if they are not readily accessible. Arguably, this provision and others could be interpreted as expanding the existing coverage of section 504 although many of the provisions may be consistent with section 504 as interpreted by courts such as in ADAPT.


^10 H.R. 4498, sec. 4(b)(1).

^11 Draft bill, sec. 601(a). It should be noted that both bills contain parallel language relating to other federal, state or local laws.

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Nancy Lee Jones
Legislative Attorney