CRS Congressional Research Service -The Library of Congress- Washington, D.C. 20540
PC

AMERICAN LAW DIVISION

MEMORANDUM June 5, 1990

SUBJECT: The Americans With Disabilities Act: Major Distinctions
Between the Senate and House Versions As Passed

AUTHOR: Nancy Lee Jones


I. Introduction

The Americans with Disabilities Act (ADA), S. 933 and H.R. 2273, 101st Cong., Ist Sess., would provide broad based protection against discrimination for persons with disabilities in the private sector. The ADA would cover employment, public services, public accommodations and services operated by private entities, transportation, and telecommunications.(Superscript 1) S. 933 and H.R. 2273 were introduced on May 9, 1989. S. 933 passed the Senate on September 7, 1989 (Superscript 2) and H.R. 2273 passed the House on May 22, 1990. Both the House and Senate versions as passed were substantially amended from their original forms.(Superscript 3) These passed versions also differ from each other and will be the subject of a conference to reconcile these differences. This report

(Superscript 1) The ADA originated in a proposal from the National Council on
Disabilities, an independent federal agency whose statutory functions include
providing recommendations to the Congress regarding individuals with
disabilities (29 U.S.C. sec. 781). Similar legislation, S. 2345 and H.R. 4495,
was introduced in the 100th Congress.

(Superscript 2) For a discussion of the Senate passed version see "The Americans with
Disabilities Act, S. 938 as Passed by the Senate: An Overview,” CRS Rep. No.
89-582 A (October 20, 1989).

(Superscript 3) For a comparison of the original version as introduced in the House and Senate with the Senate passed version see "The Americans with Disabilities Act (ADA): A Comparison and Analysis of the Bill as Introduced and as Passed by the Senate," CRS Rep. No. 89-544A (September 27, 1989).

This legal memorandum was prepared by the American Law Division to enable distribution to more than one client. Copies may be obtained from the American Law Division.


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will analyze the major differences between the House and Senate versions as passed.

II. Selected Major Distinctions

A. Food Handlers (Chapman) Amendment
The distinction between the House and Senate passed versions which will likely cause the most controversy is section 103(d), an amendment relating to food handlers which was added during House floor debate by Representative Chapman. This amendment, adopted by the House by a vote of 199 to 187,(Superscript 4) states: "It shall not be a violation of this act for an employer to refuse to assign or continue to assign any employee with an infectious or communicable disease of public health significance to a job involving food handling, provided that the employer shall make reasonable accommodation that would offer an alternative employment opportunity for which the employee is qualified and for which the employee would sustain no economic damage.”

The amendment, often referred to as the "Chapman Amendment" or the "food handlers amendment," makes a substantive change from the ADA as introduced and as passed by the Senate. Prior to passage of the amendment, the ADA would have prohibited discrimination against persons with communicable diseases in food handling positions or who sought food handling positions unless they posed a direct threat to the health or safety of other individuals.(Superscript 5) The Chapman amendment would not require proof of a direct threat but would allow an employer to refuse to assign any employee "with an infectious or communicable disease of public health significance" to a job involving food handling. The ADA was patterned on section 504 of the Rehabilitation Act of 1973, 29 U.S.C. sec. 794, which prohibits discrimination against otherwise qualified individuals with disabilities solely on the basis of disability in any program or activity that receives federal financial assistance. The Chapman amendment constitutes a different approach from the interpretation given section 504 by the Supreme Court. In School Board of Nassau County v. Arline, 480 U.S. 273 (1987), the Court held that a "person

(Superscript 4) 136 Cong. Rec. H 2484 (daily ed. May 17, 1990).

(Superscript 5) Section 103 provides for defenses to the general prohibition of discrimination and states in relevant part: “It may be a defense to a charge of discrimination under this Act that an alleged application of qualifications standards...that screen out...or otherwise deny a job or benefit to an individual with a disability has been shown to be job-related and consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation, as required under this title.
(b) Qualification Standards. -- The term ‘qualification standards’ may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace."


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who poses a significant risk of communicating an infectious disease to others in the workplace will not be otherwise qualified for his or her job if reasonable accommodation will not eliminate that risk." The Court also provided guidelines based on medical determinations for when there is a significant risk.

In the House debate on the Chapman amendment, the main argument supporting the amendment was that customers would refuse to patronize food establishments if an employee was known to have a communicable disease and that this could cause the business to close with a resulting loss of jobs. It was also emphasized that qualified individuals with communicable diseases would be offered alternative employment opportunities.(Superscript 6) Representative Bartlett, in his comments supporting the amendment, stated: "[t]he Chapman amendment does not allow an employer to fire anyone because of a public health disease in this case, nor to refuse to hire someone unless there is a direct threat, nor does it change the prohibition against discrimination against someone who has a disability, nor does it redefine disability from current law which does include those with contagious diseases. What this amendment does is a very reasonable and careful balancing of the equities in which the amendment would say that, if there is an infectious or communicable disease that has a public health significance, then the employer may, first, make a reasonable accommodation that would, first offer an alternative employment opportunity for the employee, and second, for which the employee would suffer no economic damage."(Superscript 7) In addition to these comments, Representative Rose indicated that the amendment was necessary since there are many unknowns about communicable diseases. (Superscript 8)

The Chapman amendment was strongly criticized as "perpetuat(ing) the fear and prejudice that a restaurant worker can maybe transmit a disease like AIDS by simply working in that establishment” and it was further urged that Congress “should not cater to fear or prejudice. We should say, if there is a threat to someone, then they could be denied that work. They should not be there if they are a threat, but, if they are not a threat, do not let them be
discriminated against."(Superscript 9)

(Superscript 6) 186 Cong. Rec. H 2479 (daily ed. May 17, 1990) (Comments ofRepresentative Bartlett).

(Superscript 7) 7 Id. (Comments of Representative Bartlett).

(Superscript 8) Id. (Comments of Representative Rose).

(Superscript 9) Id. (Comments of Rep. Waxman). See also, comments by Representative McDermott. "In medical school, I was trained to protect my patients from disease, to use the best medical knowledge to protect the public health. So was the gentleman from Georgia, Dr. Rowland. If either of us believed for (one second that this amendment would do anything to protect the publi against any disease, we would support it. But the amendment is not about

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B. Coverage of Congress

Another major substantive difference between the House and Senate versions of the ADA concerns the coverage of Congress by the Act. The Senate passed version simply provides that the provisions of the ADA "shall apply in their entirety to the Senate, the House of Representatives, and all the instrumentalities of the Congress, or either House thereof.” This language would apparently incorporate the remedies applicable to the various titles of the ADA which provide for administrative enforcement in the executive branch as well as judicial enforcement. The vesting of this enforcement authority against the Congress in other branches of government would raise constitutional issues regarding separation of powers and speech and debate clause immunity. Although a detailed analysis of these complex issues is beyond the scope of this memorandum, it would appear that with regard to employment, a Member’s actions might not be protected by speech and debate clause immunity.(Superscript 10) However, the possibility of administrative enforcement by an executive agency, as is raised by the Senate passed language, would present serious separation of powers questions. (Superscript 11)

In response to the possibility of these difficulties, the House took a different approach and provided that the rights and protections of the Act shall apply to the Senate, House and each instrumentality of Congress but that the official of each instrumentality of Congress shall establish remedies and procedures to be utilized with respect to these rights. The House applied the remedies and procedures of House Resolution 15 of the 101st Congress or any other current provision of the Fair Employment Practices Resolution (House Resolution 558 of the 100th Congress) and also provided that the Architect of the Capitol shall establish remedies and procedures. This language raises several issues, notably, whether the remedies will be parallel

the reality of contagious disease. Let us be honest: it is about the fear of AIDS....As long as anyone in our country remains ignorant, this amendment says, as long as anyone is still afraid, the food service industry may cater to that ignorance and fear." Id, at H. 2489.

(Superscript 10) See e.g., Forrester v. White, 108 S.Ct. 538 (1988), where the Supreme Court, applying the concept that determining whether immunity attaches is dependent upon a “functional” approach, held that a state court judge did not have judicial immunity from a suit brought by an employee he had fired. Although this was not a congressional case governed by the speech or debate clause, its principles might well be applied by the Court. This type of functional approach has been utilized regarding congressional employment decisions in two D.C. court of appeals decisions, Walker v. Jones, 733 F.2d 923 (D.C. Cir. 1984), cert. den., 469 U.S. 1036 (1984); Browning v. Clerk, U.S. House of Representatives, 789 F.2d 923 (D.C.Cir. 1986).

(Superscript 11) See e.g., Morrison v. Olson, 108 S.Ct. 2597 (1988).



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to those applicable to the private sector and/or of equal force. In a colloquy during House debate Representative Bartlett asked the House manager of the ADA, Representative Hoyer, for clarification "that the public accommodation requirements of the bill for the Congress will be enforced with remedies of: equal force ad impact to those applicable to the private sector." Representative Hoyer agreed that the House bill would provide such equality
and stated that “[t]his bill requires the development of procedures and remedies that will result in the ability of persons to get prompt correction of any ADA violation. Although I do not expect that a problem of recalcitrant behavior regarding public accommodations in the Congress would occur, I want to assure the gentleman that any such violation will be addressed with severity." It is important to emphasize that while this colloquy confirms remedies of equal force and impact, it does not require identical remedies. Indeed, the House provision does not specify whether a private right of action would be applicable to aggrieved individuals and the resolution of this issue would appear to give rise to a complicated issue of statutory construction.

III. Other Differences in House and Senate Passed Versions

Certain other differences may well have substantive effects but will most likely be less controversial. For example, the House passed ADA version contains, among others, provisions allowing the Attorney General to certify that certain State or local building codes meet the standards required by the ADA,(Superscript 13) providing for addition time for certain small businesses to come into compliance,(Superscript 14) and providing for close captioning of certain public service announcements. (Superscript 15)

Many of the other differences between the House and Senate passed versions are technical clarifications which would probably not change the legal significance of the statutory language. As noted above, many of the underlying concepts of the ADA are drawn from section 504 of the Rehabilitation Act of 1973, 29 U.S.C. sec. 794, which prohibits discrimination against an otherwise qualified individual with handicaps, solely by reason of handicap, in any program or activity that receives federal financial assistance. Although section 504’s statutory language is considerably more succinct than

(Superscript 12) 186 Cong. Rec. H 2442 (daily ed. May 17, 1990).

(Superscript 13) Section 308(b)(1)(A)(ii), 186 Cong. Rec. H. 2650 (daily ed. May 22, 1990).

(Superscript 14) Section 310, 1386 Cong. Rec. H. 2650 (daily ed. May 22, 1990).

(Superscript 15) Section 402, 186 Cong. Rec. H. 2651 (daily ed. May 22, 1990).


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that of the ADA, section 504 has been the subject of detailed regulations (Superscript 16) and extensive judicial interpretation, including Supreme Court analysis. Much of the ADA language is drawn from this regulatory and judicial interpretation of section 504. And many of the House and Senate differences result from adding specific language to assure conformity with existing section 504 interpretation. For example, the House passed version of title I on employment provides that "qualification standards" may include a requirement "that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace." The Senate passed version provides that qualification standards may include a requirement that "an individual with a currently contagious disease or infection shall not pose a direct threat to the health or safety of other individuals in the workplace.” Although the Senate language is more limited than the House, the legal result of the two versions when read in the context of the entire act, would most likely be the same. Under both versions, an individual must be "otherwise qualified” and this language, drawn from section 504, has been interpreted to mean that an individual not pose a direct threat to others. (Superscript 17)

IV. Summary

The Americans with Disabilities Act would prohibit discrimination against persons with disabilities in the private sector. It has passed both the Senate and the House and will shortly be the subject of a conference to reconcile differences in the two versions. Most of the essential requirements of the legislation are parallel but there are some significant differences, notably a House amendment limiting coverage for food handlers with communicable diseases, and the manner in which Congress would be covered by the legislation. There are other, less controversial, distinctions many of which are clarifications.

(Signature) 
Nancy Lee Jones
Legislative Attorney

(Superscript 16) See 28 C.F.R. Part 41, for the Department of Justice lead agency regulations. Other departments and agencies have also promulgated their own section 504 regulations. See "Regulations Promulgated Pursuant to Section 504 of the Rehabilitation Act of 1973: A Brief History and Present Status," CRS Report No. 86-53A (February 28, 1986).

(Superscript 17) For example see Davis uv. Meese, 692 F. Supp. 505 (E.D.Pa. 1988), aff'd without opinion, 865 F.2d 592 (3d Cir. 1989). In Davis, the plaintiff, an insulin dependent diabetic, was denied employment as an investigative specialist and special agent with the FBI pursuant to an FBI policy. The court upheld the policy, finding that there was a "very real danger of serious harm to the special agent or investigative specialist, co-workers, and uninvolved third parties, as well as potential serious harm and disruption to the operation of the FBI." At 520.