89-582 A CRS Report for Congress The Americans with Disabilities Act, 5. 933, As Passed by the Senate: An Overview Nancy Lee Jones Legislative Attorney American Law Division October 20, 1989 Congressional Research Service * The Library of Congress Dole Archives: s-leg_553_001_013_d.pdf Page 1 of 7 THE AMERICANS WITH DISABILITIES ACT, S. 933, AS PASSED BY THE SENATE: AN OVERVIEW SUMMARY The Americans With Disabilities Act (ADA), S. 933 and H.R. 2273, 101st Cong., Ist Sess., would provide broad based nondiscrimination protection for persons with disabilities in the private sector and would cover employment, public services, public accommodations and services operated by private entities, transportation, and telecommunications. Dole Archives: s-leg_553_001_013_d.pdf Page 2 of 7 THE AMERICANS WITH DISABILITIES ACT, S. 933, AS PASSED BY THE SENATE: AN OVERVIEW BACKGROUND OF THE LEGISLATION The Americans With Disabilities Act (ADA), S. 933 and H.R. 2273, 101st Cong., Ist Sess., would provide broad based nondiscrimination protection for persons with disabilities in the private sector and would cover employment, public services, public accommodations and services operated by private entities, transportation, and telecommunications. S. 933 and H.R. 2273 were introduced on May 9, 1989 and passed the Senate with substantial amendments on September 7, 1989. The ADA ^1 originated in a proposal from the National Council on Disabilities^2 and similar legislation was introduced in the 100th Congress.^3 An existing federal statutory provision, section 504 of the Rehabilitation Act of 1973, 29 U.S.C. sec. 794, prohibits discrimination against an otherwise qualified individual with handicaps solely on the basis of handicap in any program or activity that receives federal financial assistance, the executive agencies or the U.S. Postal Service. Many of the concepts used in the ADA originated in section 504 jurisprudence although section 504 differs from the proposed legislation in several ways. The most significant difference is that section 504’s prohibition against discrimination is generally tied to the receipt of federal funds while the ADA would cover entities not receiving such funds. The ADA contains a specific section stating that nothing in the act shall be construed to reduce the scope of coverage required or the standards applied under the nondiscrimination provisions of section 504. ^1 References to the ADA in this report refer only to the version as passed by the Senate. ^2 The National Council on Disabilities is an independent federal agency whose statutory functions include providing recommendations to the Congress regarding individuals with disabilities. 29 U.S.C. sec. 781. The legislation resulted following two reports by the National Council, Toward Independence (1986), and On the Threshold of Independence (1988). Legislation of this type was also recommended in the 1988 report of the Presidential Commission on the Human Immunodeficiency Virus Epidemic. 5 S. 2345 and H.R. 4498, 100th Cong. Dole Archives: s-leg_553_001_013_d.pdf Page 3 of 7 CRS-2 OVERVIEW OF THE LEGISLATION Short Title and Definitions Section 1 is the short title and table of contents for the bill. Section 2 sets out congressional findings and purposes while section 3 provides for definitions of auxiliary aids and services, disability, and state. The term disability is defined as meaning with respect to an individual "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual, (B) a record of such an impairment; or (C) being regarded as having such an impairment.” This definition is drawn from the definitional section applicable to section 504 of the Rehabilitation Act.^4 Title I -- Employment Title I provides that no covered entity shall discriminate against a qualified individual with a disability because of the disability in regard to job application procedures, the hiring or discharge of employees, employee compensation, advancement, job training, and other terms, conditions and privileges of employment. The term employer is defined as a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. However, for the first two years following the title’s effective date, only employers with 25 or more employees are covered. Title I incorporates many of the regulatory concepts set forth in the regulations promulgated pursuant to section 504, including the requirement to provide reasonable accommodation unless such accommodation would pose an undue hardship on the operation of the business.^5 Reasonable accommodation and undue hardship are also defined and an exception to the definition of qualified individual with a disability regarding illegal drugs and alcohol was added for title I. The remedies and procedures set forth in section 706, 707, 709 and 710 of the Civil Rights Act of 1964 are incorporated by reference. These remedies would include injunctive relief and back pay but not compensatory and punitive damages.^6 Title I would become effective 24 months after enactment. 4 29 U.S.C. sec. 706(8). 5 See 45 C.F.R. Part 84. 6 For a more detailed discussion of remedies under the ADA see Dale, "Remedies and Standing to Sue Under S. 933, the "Americans With Disabilities Act of 1989," CRS 89-336A (May 26, 1989). Dole Archives: s-leg_553_001_013_d.pdf Page 4 of 7 CRS-3 Title II -- Public Services Title II provides that no qualified individual with a disability shall, by reason of such disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination by a department, agency, special purpose district, or other instrumentality of a State or local government. Specific requirements are set forth regarding public transportation and all new fixed route buses are to be made accessible unless it can be demonstrated that no lifts are available. Paratransit is also required as a supplement to fixed route public transportation except where it would impose "an undue financial burden." The enforcement remedies of section 505 of the Rehabilitation Act, 29 U.S.C. sec. 794a, are incorporated by reference. These remedies would be similar to those of title VI of the Civil Rights Act of 1964 and would include damages and injunctive relief. The effective date for title II is the date of enactment regarding new fixed route vehicles but 18 months after enactment for other purposes. Title III - Public Accommodations and Services Operated by Private Entities Title II provides that no individual shall be discriminated against in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, on the basis of disability. Entities to be covered by the definition of public accommodation are listed and would include, among others, hotels, restaurants, theaters, grocery stores, shopping centers, and the professional offices of health care providers. However, such entities would not have to be made accessible unless the changes are "readily achievable," a term which is defined in the act using criteria similar to those in section 504 regulations.^7 In addition, the title contains specific provisions relating to the prohibition of discrimination in public transportation services provided by private entities. The remedies of section 204 of the Civil Rights Act of 1964, 42 U.S.C. sec. 2000a-3(a), (which have been generally interpreted not to include damages) are incorporated by reference. The effective date of title II is 18 months after enactment. Title IV - Telecommunications Relay Services Title IV would amend the Communications Act of 1934 to provide that the Federal Communications Commission (FCC) shall ensure that interstate and intrastate telecommunications relay services are available, to the extent possible and in the most efficient manner, to hearing-impaired and speech-impaired individuals. The FCC is given enforcement authority for these provisions and such services shall be provided not later than 3 years after the date of enactment. ^7 See 45 C.F.R. sec. 84.12. Dole Archives: s-leg_553_001_013_d.pdf Page 5 of 7 CRS-4 Title V -- Miscellaneous Provisions Title V contains various miscellaneous provisions including a section describing the ADA’s construction with regard to other federal laws; a provision indicating that the ADA shall not be construed to prohibit or restrict general insurance practices; a prohibition against retaliation and coercion, a provision indicating that Congress intends that the states not be immune from suit under the ADA; a section providing that the Architectural and Transportation Barriers Compliance Board (ATBCB) shall issue minimum guidelines; a section providing for attorneys’ fees; a section providing for technical assistance; a section providing for a study on federal wilderness areas; two sections limiting the definition of disability so it is not interpreted to include transvestites, homosexuality and certain other conditions; a section providing for congressional coverage; a section discussing the use of illegal drugs, an amendment to the definition of handicapped person in the Rehabilitation Act; and, finally, a severability clause. [Signature] Nancy Lee Jones Legislative Attorney Dole Archives: s-leg_553_001_013_d.pdf Page 6 of 7 [Blank Page] Dole Archives: s-leg_553_001_013_d.pdf Page 7 of 7