90-112 A
CRS Report for Congress
Americans With Disabilities Act of 1989: Analysis of the Remedies and Enforcement Provisions of 8.933, as Passed by the Senate

Charles V. Dale
Legislative Attorney
American Law Division

February 22, 1990
CRS
Congressional Research Service * The Library of Congress

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SUMMARY

	S. 933, the "Americans with Disabilities Act of 1989," would broaden current federal sanctions against handicap discrimination which, as found mainly in the Rehabilitation Act of 1973, are restricted in coverage to the agencies of the federal government, federal contractors, and recipients of federal aid. The bill would augment this protection with a panoply of new safeguards applicable to public and private employers, bus, rail, and related transportation services and facilities, most places of public accommodation, and telecommunication relay services. For the most part, the relief provided by the bill to enforce these new protections draws expressly upon the remedies and procedures found in other civil rights laws. This report analyzes the various remedy provisions in S. 933, as passed the Senate on September 7, 1989, in relation to current provisions of existing federal civil rights legislation.

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Americans with Disabilities Act of 1989: Analysis of the Remedies and Enforcement Provisions of S. 933, as Passed by the Senate

	S. 933, the "Americans with Disabilities Act of 1989," would broaden current federal sanctions against handicap discrimination which, as found mainly in the Rehabilitation Act of 1973, are restricted in coverage to the agencies of the federal government, federal contractors, and recipients of federal aid. The bill would augment this protection with a panoply of new safeguards applicable to public and private employers, bus, rail, and related transportation services and facilities, most places of public accommodation, and telecommunication relay services. For the most part, the relief provided by the bill to enforce these new protections draws expressly upon the remedies and procedures found in other civil rights laws. This report analyzes the various remedy provisions in S. 933, as passed the Senate on September 7, 1989, in relation to current provisions of existing federal civil rights legislation.

Employment

	Title I of the bill bans discrimination against qualified disabled individuals with respect to hiring, discharge, compensation or any term, condition, or privilege of employment by employers with over 15 employees, labor unions, employment agencies, and joint labor-management committees. It requires "reasonable accommodation” to the known physical or mental limitations of the disabled employee or applicant unless this would impose an “undue hardship" on business operations. The enforcement provisions contained in §107 of the bill draw directly upon remedies and procedures mandated by equal employment opportunity provisions of Title VII of the 1964 Civil Rights Act as “set forth in sections 706, 707, 709, and 710 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5, 2000e-6, 2000e-8, and 2000e-9...”

	Briefly, the procedural mechanism outlined by §706 of Title VII, as incorporated by the bill, is as follows. The Equal Employment Opportunity Commission is responsible for administrative enforcement of Title VII with respect to private and state and local government employment. It is empowered to investigate and conciliate formal charges of employment discrimination, which must be filed by an aggrieved individual or on the Commission’s own initiative within 180 days of the alleged unlawful employment practice. Title VII imposes specific time limits for processing charges which may be extended for up to 60 days to accommodate deferrals to state or local fair employment practices agencies with jurisdiction to hear the charges. Based on its investigation, the EEOC must make a determination whether there is "reasonable cause" to believe the charge, a finding that is essential to initiation of conciliation efforts required by the statute. Where its attempts at voluntary conciliation fail, the Commission is authorized to bring a civil action against the uncooperative employer, employment agency, or labor organization. In addition, under §707 of Title VII, the Commission has similar authority to act where it "has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to full enjoyment of any of the rights" protected by the Act. In the case of discrimination by governmental employers, however, the matter must be referred to the Attorney General for judicial enforcement action.^1

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^1 Beyond the scope of this report, but clearly implicated by §509 of the Senate passed bill, are the constitutional ramifications of including Congress and its "instrumentalities" within the coverage of the Act. The main issue here relates to enforcement of the employment sections of the ADA which, as noted, involve two stages: an administrative process by complaint to the EEOC, and a judicial process by private right of action in federal court. Both stages implicate the speech and debate clause assurance that Members of Congress "shall not be questioned in any other place" for things done or said in the legislative process. Article I, §6, cl. 1. Speech and debate issues may also be presented by the required elimination of architectural and other barriers to access to persons with disabilities and the conferral of a private right of action to individuals to enforce the mandate. Additionally, a general separation of powers issue would be raised by authorization of an executive branch agency to police the employment relations of the legislative branch. While relevant caselaw continues to develop, and is currently too unsettled to permit a definitive resolution of these issues, the U.S. Supreme Court appears to be moving in the direction of a "functional" approach to questions of official immunity.

	Under that approach, we examine the nature of the function with which a particular official or 		class of officials has been lawfully entrusted and we seek to evaluate the effect that exposure 	to particular forms of liability would likely have on the appropriate exercise of those 	functions. Officials who seek exemption from personal liability have the burden of showing that 		such an exemption is justified by overriding considerations of public policy. . .

	Thus, concluded the Court in Forrester v. White, 108 S.Ct. 538 (1988), it is “the nature of the function performed, not the identity of the actor who performed it, that inform[s] our immunity analysis. While Forrester held that a state judge did not have judicial immunity from a damages action brought by a probation officer whom he had fired, and is thus most directly apposite to the liability of state and local officials, the Court has elsewhere observed that “we generally have equated the legislative immunity to which state legislators are entitled under §1983 to that accorded Congressmen under the

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	A Commission finding of reasonable cause is not, however, a prerequisite to a private civil action under Title VII. Where the Commission dismisses a charge or has not, within 180 days of the filing of the charge, reached a conciliation agreement or initiated court action, it must notify the charging party who then has 90 days to file a suit. These provisions were designed to permit private parties to pursue independently their Title VII remedies in federal court where there is Commission inaction, dismissal, or unsatisfactory conciliation agreement.

	The federal courts possess broad remedial authority under Title VI. They may not only enjoin the unlawful employment practices but may "order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay. . ., or any other relief as the court deems appropriate.^2 Title VII backpay is limited to the two years prior to filing the complaint. The Senate passed measure, however, eliminates any reference to 42 U.S.C. §1981 for purposes of ADA enforcement. As originally introduced, S. 933 specifically incorporated $1981 relief which includes compensatory and punitive damages, not generally recognized under Title VII.^3 Attorneys’ fees may be awarded the prevailing party under both Title VII and the ADA.

Title VII also permits the courts to issue "temporary or preliminary relief" which may include injunctions against anticipated violations of the statute in at least some circumstances.‘ As a general rule, however, preliminary relief may be granted in the employment context only where the plaintiff can show likelihood of success on the merits and irreparable injury caused by the threatened conduct. For example, in Sampson v. Murray,^5 a non-Title VII case, the U.S. Supreme Court held that a probationary federal employee about to be terminated in violation of procedural regulations issued by the Civil Service Commission could obtain preliminary relief pending an appeal to the CSC only on a showing of extraordinary "irreparable harm." Neither the threatened loss of income alleged by the employee, nor her allegations of humiliation and damage to reputation constituted such harm, said the Court, because each of these elements of injury could be fully remedied if the plaintiff prevailed on the merits. The courts are divided as to whether EEOC proceedings under §706(f)(2) must show irreparable harm,^6 but such a standard has been held satisfied by an alleged threatened retaliation because of the chilling effect of such conduct on the exercise of Title VII rights by other employees.^7

_________________________________________________________________________
Constitution." See, eg., Eastland v. United States Servicemen’s Fund, 421
U.S. 491, 502-503 (1975). If, therefore, Forrester v. White bears on the
question of congressional immunity for employment decisions, it strongly
suggests that for such decision Members of Congress may not have immunity.

^2 42 U.S.C. 2000e-5(g).

^3 Johnson v. Railway Express Agency, 421 U.S. 454 (1975).

^4 When a timely charge is filed and if, “on the basis of a preliminary investigation”, it appears "that prompt judicial action is necessary to carry out the purposes of [the Act]," the EEOC is authorized by §706(f)(2) to seek preliminary injunctive relief pending final disposition of the charge. The charging party’s right to seek immediate injunctive relief is not specified but, as a general matter, the courts may have inherent equitable discretion to grant injunctive relief to private claimants. Sheehan v. Purolator Courier Corp., 676 F.2d 877 (7th Cir. 1982).

^5 415 US. 61 (1974).

^6 EEOC v. Anchor Hocking Corp., 666 F.2d 1037 (6th Cir. 1981) (yes); EEOC v. Pacific Press Publ. Ass’n, 535 F.2d 1182 (9th Cir. 1976) (no, if the EEOC acts pending resolution of the charge. If the charge has been processed, EEOC must establish traditional "irreparable harm.”).

^7 Holt v. Continental Group, Inc., 708 F.2d 515 (2d Cir. 1983).


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	The inspection, recordkeeping, and reporting requirements imposed generally upon employers by §709 of Title VII would also pertain to administration of the disabled discrimination provisions of the bill. Similarly, general Commission powers related to subpoenas, witnesses and the production of evidence in Title VII proceedings would apply to its administration of the bill as well.^8

	An issue has recently been raised concerning the effect of certain amendments to Title VII proposed by H.R. 4000/S. 2104, the proposed "Civil Rights Act of 1990" (hereafter "1990 Act”), on enforcement of the ADA if both measures become law. A provision of the 1990 Act would amend §706(g) of Title VII,’ defining the remedial powers of the court, to include compensatory and punitive damages and the opportunity for a jury trial.^10 The statutory predicate of that amendment, §706(g), is one of those provisions incorporated for enforcement of the employment title of the ADA. Adoption of Title VII damage awards and jury trials by the 1990 Act could therefore result in same remedies being available in judicial actions under the ADA. The applicability of these proposed changes in Title VII practice to ADA enforcement, however, would probably turn on a determination of Congress’ intent as revealed in the legislative history of the ADA law and, possibly, the sequence of legislative enactment. For example, if the 1990 Act becomes law prior to the ADA, and the congressional reports or debate on the later law suggest an intent to incorporate the broader remedies, or is otherwise silent on the matter, this could support an inference that Congress intended the new remedies to apply. Conversely, if the ADA were enacted first in time, and the legislative history indicates Congress’ intent to incorporate the Title VII procedures then in effect, this could preclude award of damages and jury trials in ADA cases. In any event, the dilemma would seem readily resolvable either by statutory directive in the ADA law itself, or accompanying congressional documents, making clear the desired legislative outcome.


^8 42 U.S.C. 2000e-9, 29 U.S.C. 161.

^9 42 U.S.C. 2000e-5(g).

^10 See §8 of S. 2014, 136 Cong. Rec. S 1020 (daily ed. 2-7-90).

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	Although related to ADA liability rather than remedies, which are the focus of this report, one other issue may be noted at this point. That concerns the proposed statutory incorporation of the “business necessity" defense by the ADA in relation to a parallel standard proposed by the 1990 Act to govern Title VII "disparate impact” claims in response to the Supreme Court decision last term in Wards Cove Packing v. Atonio.^11 The Court there appeared to recast certain evidentiary principles emanating from the earlier Griggs v. Duke Power Co.,^12 which had required employers to demonstrate a “business necessity" for employment practices that disqualified minorities or other protected groups at a “substantially higher rate" than nonminorities. Under Wards Cove, by contrast, the business necessity doctrine was transformed from an affirmative defense for which the employer carried the burden of persuasion to a "business justification" subject only to "reasoned review" and for which the employer need only meet a "burden of production." The result was that "there is no requirement that the challenged practice be ‘essential’ or ‘indispensable’ to the employer’s business,” as was the prevailing judicial view prior to Wards Cove, and that the “ultimate burden" for proving disparate impact discrimination remained “at all times" with the plaintiff employee.

	The 1990 Act seeks to reallocate this burden of proof by proposing that where the Title VII plaintiff "demonstrates that an employment practice results in a disparate impact,” the employer must "demonstrate" that the “specific employment practice” or "group" of practices "is required by business necessity.^13 Certain provisions in the Senate passed ADA are also pertinent to the issue. For purposes of the definition of "discrimination" in §102(b)(7), S. 933 as passed would allow "employment tests or other selection criteria that screen out or tend to screen out" the disabled only if "shown to be job-related for the position in question" and "consistent with business necessity."^14 Similarly, §103 would allow as a general “defense” to any ADA charge of discrimination, whether related to employment or other covered activity, a showing that “an alleged application of qualification standards, tests, or selection criteria" is "job related and consistent with business necessity” and is not amendable to "reasonable accommodation."^15



^11 109 S.Ct. 2115 (1989).

^12 401 U.S. 424 (1971).

^13 136 Cong. Rec. S 1019 (daily ed. 2-7-90)(emphasis added).

^14 Emphasis added.

^15 Emphasis added.

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	As a general proposition, the proposed language of the Senate passed ADA appears to largely coincide with the approach taken by the 1990 Act to the business necessity defense. There are, however, some differences in wording which, depending upon the courts’ interpretation, could lead to diverse legal results. Note, for example, that while the 1990 Act demands a demonstration that an offending employment practice is "required by” business necessity, the Senate passed ADA is satisfied merely by showing that such practices are "consistent with” that standard. In addition, the former bill makes clear that the employer’s burden is one of both "production and persuasion” while the Senate passed ADA is silent on the issue and thus might be construed to impose a lesser burden on defending employers. Of course, the ADA also incorporates a “reasonable accommodation" standard specific to that law which is not found in the proposed 1990 Act. Finally, it should be observed that even if enacted, these differences would presumably result in no direct legal conflict or inconsistency since the separate bills deal with different forms of discrimination and are not substantively interdependent in operation. However, these potential differences may be a matter of policy concern to the Congress.

Public Services

	Title II of the Senate passed bill generally prohibits discrimination against the disabled in administration of state and local governmental affairs and mandates accessibility standards for the disabled to public transportation facilities--including bus and rail systems--other than air carriers. Section 205 incorporates for enforcement of Title III the "remedies, procedures, and rights set forth in §505 of the Rehabilitation Act of 1973 (29 U.S.C. 794a). . ." As amended in 1978, §505 in turn provides for a bifurcated enforcement scheme depending upon whether the alleged discriminators are federal agencies or federally assisted entities. Thus, disabled persons are granted the same remedies against federal agencies violating the Rehabilitation Act as are available under Title VII of the 1964 Civil Rights Act.^16 Those remedies and procedures are outlined in the previous section of this report.

	Section 505 also grants disabled individuals the same remedies against state and local governments or private parties who are recipients or providers of federal financial assistance as are available under Title VI of the 1964 Civil Rights Act.^17 Generally, Title VI provides both administrative and judicial remedies for persons who suffer discrimination in any "program or activity’ that is financially aided by the federal government. Federal grantmaking agencies are authorized to investigate and hold formal hearings based on individual complaints or their own compliance reviews and to terminate federal financial assistance to any institution found to operate in a discriminatory manner. While the Supreme Court has thus far avoided the issue, lower federal courts have generally found that a private cause of action is available to enforce Rehabilitation Act claims.^18 Moreover, monetary damages as well as injunctive relief have been awarded by analogy to Title VI which was interpreted by the Court in Guardians Associations vu. Civil Service Commission to authorize a damage remedy in intentional discrimination cases.


^16 29 U.S.C. §794a(a)(1).

17 42 U.S.C. 2000d et seq.

18 E.g., Doe v. Marshall, 622 F.2d 118 (5th Cir. 1980), cert. denied, 451 U.S. 993 (1981); Adashunas v. Negley, 626 F.2d 600 (7th Cir. 1980); Miener v. Missouri, 673 F.2d 969 (8th Cir.), cert. denied, 459 U.S. 916 (1982).

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	However, a basic question could be raised as to whether §205 of the bill is intended to incorporate the entire §505 remedial framework, even though the Title VII references there relate to remedies available against federal agencies not apparently subject to Title II of the bill, or only those that pertain to federally assisted entities of a kind covered by Title II, namely the remedies and procedures under Title VI of the 1964 Civil Rights Act. While the latter appears the more logical conclusion, an argument could be made for either interpretation based on the present wording of §205.

Public Accommodations and Services Operated by Private Entities

	Title III of the bill as passed states rules concerning nondiscrimination and accessibility by the disabled to privately operated places of "public accommodation,” defined by §301 to include any of several specifically delineated types of service establishments, "if the operations of such entities affect commerce." The enforcement section of this title is modeled generally on Title Il of the 1964 Civil Rights Act, 43 U.S.C. § 2000a-3(a), which provides for injunctive relief against racial discrimination in places of public accommodations, and the "remedies and procedures” of which are expressly incorporated by reference in §308(a) of the Senate bill. The ADA would add to this preexisting arsenal of injunctive relief, however, specific authority to require “auxiliary” aids or services, modification of policies or methods, and the alteration of facilities "to make such facilities accessible and usable by individuals with disabilities to the extent required by this title." Similar to its 1964 Act counterpart, the Attorney General would be granted jurisdiction to investigate and commence civil actions in “pattern or practice” cases or where the alleged denial of protected rights "raises an issue of general public importance.” The ADA goes further, however, in mandating "periodic reviews of compliance” by covered entities. While the scope of this compliance review authority is not otherwise spelled out by the bill, it appears to have no direct parallel in the law or administrative practice under Title II of the 1964 Act.

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	In any civil action brought to enforce the public accommodations provisions of the Senate bill, the court may grant all “appropriate” equitable remedies--including required auxiliary aids, services, or modifications to make facilities "readily accessible"--and monetary damages, as well as civil penalties not to exceed $50,000 for a first violation or $100,000 for any subsequent violation. The latter provisions for a damage remedy and civil penalties are without statutory or judicial corollary under the 1964 Civil Rights Act, although monetary damages may be available in appropriate cases alleging racial discrimination in admission to private commercial establishments under §1981 of the 1866 Civil Rights Act.

	Section 308(a) of the ADA also parallels the 1964 Act in explicitly providing for prospective relief in situations where an alleged denial of equal access to public accommodation is "about to" occur.^19 The bill as passed, however, was amended to substitute an apparently objective standard to govern such cases. This is in contrast to the original measure which would have predicated legal standing to sue on a complaining party’s largely subjective "belie[f]" that a violation was “about to" occur.

Telecommunications Relay Services

	Finally, Title IV of the bill amends the Communications Act of 1934 to require that the Federal Communications Commission insure by regulation "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 in the United States." Section 401(b)(2) states, generally, that the "same remedies, procedures, rights, and obligations” that govern interstate common carriers by rail or wire under the Communications Act shall apply to enforcement of the ADA with respect to both interstate and intrastate carriers.

Basically, the Communications Act authorizes the filing of complaints and investigation by the FCC of any alleged violation of the federal communications law by a regulated carrier and provides that such "carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation.”^20 The Commission is empowered to hold hearings, to make all determinations as to liability and damages, and to "make an order directing the carrier to pay the complainant the sum to which he is entitled."^21 Finally, any carrier that "knowingly fails or neglects to comply" with the law or Commission orders or regulations thereunder would be subject to forfeitures to the government of $10,000 for each offense. All proceedings before the Commission would be conducted pursuant to procedural requirements set forth in the communications law which, among other things, provides for judicial appeals and enforcement of FCC orders.^22


^19 Compare §308(a)(1) of S. 933, as passed, providing that relief "shall be available to any individual who is being or is about to be subjected to discrimination," with §204(a) of the 1964 Act, 42 U.S.C. 2000a-3(a), which authorizes private civil action where "there are reasonable grounds to believe that any person is about to engage in" forbidden discrimination. (emphasis added). Similarly, §802(i)(2) of the 1988 Fair Housing Amendments employs a similar standard in defining “aggrieved person" to include anyone who "believes that such person will be injured by a discriminatory housing practice that is about to occur.” 42 U.S.C. §3602(i)(2).

^20 47 U.S.C. §206.

^21 47 U.S.C. §209.

^22 47 U.S.C. 401 et. seq.

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	In addition, however, the bill mandates FCC certification of state programs meeting federal requirements for intrastate telecommunications relay services and provides for FCC referral of complaints regarding such services to those states which have programs in effect. The state then has 180 days to take final action before the Commission may exercise jurisdiction over the complaint. Similarly, the FCC must issue a final order on any ADA complaint within 180 days pursuant to the general procedures described above.

[Signature]
Charles V. Dale
Legislative Attorney
February 22, 1990




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