May 23, 1989 Memorandum To: Interested Parties From: Pat Morrissey (225-7101), Professional Staff and Randy Johnson (225-3725), Labor Counsel of the Committee on Education and Labor Subject: Background on the Americans with Disabilities Act of 1989 This legislation would prohibit discrimination on the basis of disability by the private sector and state and local governments. Introduced May 9, 1989 in both the House and Senate (H.R. 2273 and S. 933), as of May 22, 1989, it had 110 House cosponsors and 35 Senate Cosponsors. It is on a fast track, with final passage anticipated before the August recess. Attached is some background information on the ADA: (a) a status report, (b) an overview of the bill, and (c) major problems. May 23, 1989 Americans with Disabilities Act of 1989 Status Report Introduction: The ADA was introduced in the House (H.R. 2273) and the Senate (S. 933) on May 9, 1989. The House sponsor is Mr. Coelho with 84 cosponsors. The Senate sponsor is Mr. Harkin with 335 cosponsors. History: In April, 1988, the ADA was originally introduced. It was developed by the National Council on Disability, an independent agency with 15 members appointed by President Reagan. The legislation had many cosponsors. A hearing was held in September, 1988, but no other action was taken in the 100th Congress. Justin Dart, with the endorsement of Chairman Major Owens of the Subcommittee on Select Education, created the Task Force on the Rights and Empowerment of Individuals with Disabilities in May, 1988. Throughout the remaining months of 1988, he conducted forums in every State, some territories, and Puerto Rico, to collect testimony with examples of how individuals with disabilities have been discriminated against in the areas covered by the legislation. Testimony was received from 9,000 individuals and grassroots support for the legislation was mobilized. 1986 Republican Platform -- This platform contains language that reflects and endorses the intent of the ADA. President Bush: President Bush endorsed the concept of the ADA during the fall campaign. Currently Executive Branch agencies are now analyzing the bill. The White House anticipates a final position by September, 1989. The Senate: Senator Harkin anticipates speedy passage. Three hearings were held this month. Senator Hatch urged that the White House be given to June 19, 1989, to react to the ADA. If it does not, he indicated then the Committee on Labor and Human Resources could go forward without its formal input. Senators Harkin and Kennedy agreed to Senator Hatch’s suggestion. The House: The ADA has been referred to four Committees -- Education and Labor, Energy and Commerce, Judiciary, and Transportation and Public Works. Mr. Michel asked Mr. Coelho to work with him to develop a bipartisan bill. Mr. Coelho has agreed. The first meeting between Republican and Democrat Committee is scheduled for May 31, 1989. Mr. Michel plans to meet with representatives of the disability community and to arrange meetings with this group and the business community. The Business Community: The Chamber of Commerce sponsored a briefing for business organizations on May 5, 1989. It is anticipated that small working groups on different issues will be established to work with Congressional staff. The Chamber has scheduled a second briefing for May 24, 1989. The Disability Community: This community has become very organized since the Justin Dart forums. It is aggressively seeking rapid passage of the bill. It appears, however, that there is not much awareness or full understanding, among the members of the group both inside and outside of Washington, D.C., of the specific provisions in the ADA or their implications for the private sector. May 23, 1989 OVERVIEW OF THE AMERICANS WITH DISABILITIES ACT OF 1989 Purpose The purpose of the Americans with Disabilities Act of 1989 (ADA) is to “establish a clear and comprehensive prohibition of discrimination on the basis of disability.” Currently such a prohibition applies to the Executive Branch, Federal contractors and recipients of Federal financial assistance through title V of the Rehabilitation Act and to matters related to the sale and rental of housing through the Fair Housing Amendments of 1988. The ADA (H.R. 2273 and S. 935) would extend the prohibition against discrimination on the basis of disability to the private sector and to state and local governments in such areas as -- employment, public services provided by state and local governments, public accommodations and services provided by private entities, and telecommunications relay services. it is viewed as an extension of civil rights similar to those now available on the basis of race, national origin, and religion through the Civil Rights Act of 1964. Definitions The definition for disability is the same as that contained in section 504 of the Rehabilitation Act and in the Fair Housing Amendments of 1988. With respect to an individual, the term disability means -- a physical or mental impairment that substantially limits one or more of the major life activities; a record of such an impairment; or being regarded as having such an impairment. The term “qualified individual with a disability” is defined further in title II pertaining to employment to ‘mean an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position the individual holds or desires.” A similar clarification for “qualified individual with a disability” is contained in title II! pertaining to public services provided by state and local governments and is defined to mean -- an Individual who with or without reasonable modifications to rules, policies, and practices, the removal of architectural, communication, and transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements...for services.... Discrimination Discrimination is construed differently in titles I though V of the ADA to accommodate the different foci in each. For example, in title | which addresses general prohibitions against discrimination, discrimination is viewed as denying opportunities, providing an opportunity that is not equal to or as effective as that provided to others, or helping others to perpetuate the same forms of discrimination. Under title II which relates to employment, discrimination includes the failure to provide reasonable accommodation; to hire someone because he/she needs such accommodation; or the application of qualification standards, tests, or eligibility criteria that identify or limit individuals on the basis of disability. Title III, Public Services, addresses principally transportation systems and facilities associated with such systems, and thus contrues discrimination as the failure to make such systems and facilities accessible to individuals with disabilities, including those in wheelchairs. Title IV, Public Accommodations and Services Operated by Private Entities covers privately operated establishments -- auditoriums, convention centers, stadiums, theaters, restaurants, shopping centers, inns, hotels and motels. Discrimination is construed in terms similar to those found in titles I and III. Title V applies to telecommunications relay services offered by private companies, and includes services regulated by states. Discrimination is viewed as the failure to provide access to nonvoice terminal devices to those who cannot use the conventional telephone system. 2 Standards of Compliance The ADA provides exemptions and conditions for compliance that vary across titles. For example, title I allows for qualification standards that require the current use of alcohol or drugs, by an abuser of such substances, not pose a direct threat to the property and safety of others; or that an individual with a contagious disease or infection, not pose a direct threat to the health or safety of others. Elected officials and their staff, nonprofit entities, and entities that employ less than 15 individuals are exempt from coverage under title Il. In addition, an employer is not required to make reasonable accommodation for an individual on the basis of disability, if such an employer can demonstrate that it would constitute an undue hardship on the operation of the business. Finally. special standards and criteria that may discriminate against an individual on the basis of disability may be used if an employer can demonstrate that they are necessary and substantially related to the ability of an individual to perform the essential functions of the position. Under title Ill no retrofitting of buses is required, but all new vehicles and remanufactured vehicles with a life of more than five years must be accessible. In the purchase of used vehicles only a good faith effort must be demonstrated. All new facilities and those subject to alterations must be made accessible. Intercity, rapid, light, and commuter rail systems must be accessible within five years. Key stations must be made accessible within 3 years, but the Secretary of Transportatation may give waivers for up to 20 years for extraordinarily expensive structural alterations. Under title IV. private entities may be exempted if they can demonstrate that making reasonable accommodation would fundamentally alter the nature of priviliges, advantages, and accommodations; that providing auxillary aids constitutes an undue burden; or that removing a barrier and providing an alternative are not readily achievable. Facilities that are altered, to the maximum extent feasible, must be accessible and new facilities that would be occupied 30 months after enactment must be accessible. New vehicles that carry more than 12 individuals must be accessible. Under title V dealing with telecommunications relays, compliance by covered entities is required within one year of enactment of the ADA. Remedies and Procedures Remedies and procedures vary both within and across titles, encompassing the full range from injunctive relief and attorney's fees to compensatory and punitive damages. In addition, title V alone allows for administrative actions as well as individual suits. Finally, the ADA calls for the development of regulations by varying Federal entities, including the EEOC, the Departments of Transportation and Justice, and the Federal Communications Commission. The variety in remedies and procedures throughout the ADA may cause multiple interpretations in the area of enforcement. Further, the ADA would not preempt other disability laws that may be applicable to the same extent as the ADA. Thus, an employer could possibly be subject to different suits in different forums under different standards of compliance although the underlying facts giving rise to the disability discrimination claim were the same. May 23, 1989 AMERICANS WITH DISABILITIES ACT OF 1989 MAJOR PROBLEMS 1. Definition of disability -- The ADA includes a provision which would allow an individual, “regarded as having an impairment,” to be considered an individual with a disability. Although such a provision is contained in other legislation that prohibits discrimination on the basis of disability, it would appear to allow very expansive coverage of individuals and classes of individuals, such as those suspected of having AIDS. 2. Equal treatment standard -- The ADA requires that equal and as effective means be offered to an individual with a disability so that such an individual may achieve the same result or outcome as other individuals. This appears to be a very rigorous standard that would not allow for a covered entity to offer a comparable treatment/service/opportunity for an individual to achieve a comparable, rather than the same, outcome. It is unclear how this standard would affect, and possibly restrict, efforts to provide reasonable accommodation. 3. Coverage of individuals who are alcohol and drug abusers and those with contagious diseases or infections --The ADA would prohibit discrimination against such individuals unless they posed a direct threat to the property and safety or health and safety, respectively, of others in the workplace. (This provision is contained only in title I which addresses general prohibitions.) The alcohol and drug provision would seem to potentially conflict with legislation requiring a drug free workplace. The provision pertaining to contagious disease or infection would extend coverage to individuals with AIDS or regarded as having AIDS. 4. Anticipated discrimination --The ADA would allow an individual to sue if he/she was discriminated against on the basis of disability or believes he/she is about to be discriminated against on such a basis. It is unclear how a case of anticipated discrimination would be proved or disproved. S. Access to varied and multiple penalties -- The ADA would allow an individual who successfully sues because of discrimination on the basis of disability, to obtain injunctive, and possibly compensatory, relief and attorney's fees, and/or compensatory and punitive damages, in employment cases and those involving public accommodations and services operated by private entities; to obtain injunctive relief and attorney's fees in cases involving public services (likely to be transportation cases); and to seek individual cause of action (injunctive relief and attorney's fees, and/or compensatory and punitive damages) or administrative action (which would include cease and desist orders and fines), in cases involving telecommunications relay services. Having such a range of penalties may lead to severe opposition to the legislation, and, if enacted, full employment for attorneys and inconsistency in interpretation of the law. 6. Allowance of suits in cases of both intentional and unintentional discrimination -- Because of the phrase “fail to...” in the provisions which define discrimination (for example, fail to provide opportunity, access, reasonable accommodation etc.), it is likely that covered entities would be subject to suits involving either kind of discrimination. “Fail to” does not require conscious intent, it just requires that an action or the failure to act has the effect of discrimination. Other language in the ADA also appears to prohibit practices with an adverse impact, regardless of intent, on idividuals with disabilities. It would seem appropriate to limit the right to sue in cases of unintentional discrimination to specific circumstances where covered entities have experience, knowledge, and resources that would allow tham to avoid such discrimination. 7. Inclusion of section 504 references in ADA -- Section 504 of the Rehabilitation Act prohibits discrimination on the basis of handicap by recipients of Federal financial assistance. The ADA includes references to section 504 in its provisions pertaining to transportation. The reason for such references is unclear. Do the references to section 504 in the ADA change standards related to transportation that now apply to recipients of Federal financial assistance covered by section 504? 8. Burden of proof -- The ADA appears unclear on where the burden of proof lies in most titles. Such lack of clarity needs to be resolved, especially in cases of unanticipated discrimination.