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Drafting and Introduction of the Original ADA Bill - Part 1

My Approach to and Early Snippets of an ADA Bill

It was not until the fall of 1986 that I really got down to business on designing the specific structure and possible wording of an ADA bill. I decided that it was time to start playing around with some language for expressing the central prohibition of discrimination, which at that time I was referring to as “handicap discrimination” or “discrimination on the basis of handicap.” From having previously identified elements that needed to be included in an effective disability nondiscrimination law, in the Statutory Blueprint article and in Toward Independence, and from my experience in litigating disability discrimination cases, I was well aware that such a law could not be compressed into a single sentence or even a few paragraphs. However, I thought that trying to articulate a general statement or basic overall mandate prohibiting discrimination would be a good place to start. As soon as I dipped a toe in this water, however, conceptual nuances, analytical complexities, and drafting challenges came floating up.

I had handled court cases under Section 504, and had researched, written about, and cataloged its shortcomings. I also had occasion, particularly while at the Civil Rights Commission, to gain some familiarity with prior civil rights laws addressing other types of discrimination, such as Title VI (race, color, or national origin), Title II (race, color, religion, or national origin), and Title VII (race, color, national origin, religion, and sex) of the Civil Rights Act of 1964; the Equal Pay Act of 1963 (sex); the Age Discrimination in Employment Act of 1967 and the Age Discrimination Act of 1975 (age, obviously); and Title IX of the Education Amendments of 1972 (sex). Two rudimentary components of such laws are guaranteeing people the right not to be subjected to discrimination on a prohibited ground (race, color, national origin, religion, sex, or age), and establishing who is prohibited from doing such discriminating (e.g., employers of a certain size, employment agencies, labor organizations, recipients of federal financial assistance, or operators of places of public accommodations). These are two sides of the same coin – the right of people protected by such a law not to be discriminated coincides with the prohibition on entities covered by the law not to engage in discrimination.

Reflecting this duality, the overriding general prohibition of discrimination in these laws is formulated in one of two principal ways, depending upon whether it is articulated with a focus on the potential discriminator or the person to be protected from prohibited discrimination. Title VI of the Civil Rights Act, the Age Discrimination Act, Title IX of the Education Amendments, and other statutes patterned on them declare that “no person in the United States shall, on the basis of [the prohibited ground or grounds] be excluded from participation in, be denied the benefits of, or be subjected to discrimination ….” Section 504 is a flawed variant on this model. Another variation is Title II of the Civil Rights Act which states that “[a]ll persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation … without discrimination on the ground of race, color, religion, or national origin.” Under this approach, people are given a right not to be subjected to discrimination.

The other principal approach, which focuses on the discriminatory conduct that is prohibited, appears in Title VII of the Civil Rights Act and in the Age Discrimination in Employment Act, each of which makes it an “unlawful employment practice” for a covered employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of [the prohibited ground]. The Equal Pay Act does much the same thing but prohibits only a single kind of discriminatory employment practice; it provides that “[n]o employer” covered by the Act “shall discriminate … between employees on the basis of sex” by not paying equal wages for equal work. This approach tells covered entities not to discriminate on the prohibited grounds.

With these models in mind, my very first attempt to devise wording for a broad prohibition of discrimination on the basis of disability produced the following two versions:

No person or agency shall engage in unlawful discrimination against any person on the basis of handicap in any of the activities, programs, opportunities, benefits, services, or businesses covered under section ___ of this Act.

No person in the United States shall be subjected to unlawful handicap discrimination in any of the activities, programs, opportunities, benefits, services, or businesses covered under section ___ of this Act.

The first of these tells covered entities “thou shalt not discriminate”; the second says that all people in the United States have a right not to be subjected to disability discrimination. As simple and straightforward as these provisions seem, they, and the differences between them, reflect several significant analytic considerations. In the first version, it states that discrimination against “any person” was prohibited, and in the second that “[n]o person in the United States” should be discriminated against. By doing so, I was very deliberately rejecting the Section 504 language that “[n]o otherwise qualified handicapped individual in the United States” could be subjected to discrimination. I had witnessed firsthand in litigation I had been involved in (most dramatically in Bob Brunner’s case) and in other case law I was aware of through legal research and the disability litigation information chain, that the Section 504 wording could spawn a restrictive protected-class approach that unnecessarily deprived protection from discrimination to people unable or unwilling to make demanding evidentiary showings that they were very seriously impaired. (Regrettably, when the ADA was enacted, it failed to purge the taint of the Section 504 flaw, which led to a series of court decisions severely restricting the class of people eligible to bring ADA actions that had to be corrected by amendatory legislation).

The first version prohibited “unlawful discrimination against any person on the basis of handicap” while the second prohibited “unlawful handicap discrimination”; I considered these two phrasings to be interchangeable alternatives. In choosing to use the word “unlawful” in each of them, I was taking a page from Title VII and the Age Discrimination in Employment Act, each of which declares certain employment practices “unlawful.” At the time, my thinking was that the word would help to clear up some lack of clarity in the use of the word “discrimination.” It is sometimes supposed that all discrimination is bad and ought to be prohibited. The dictionary definition of “discrimination,” however, includes several shades of meaning, some of which are not negative. Discrimination can simply mean differentiation or discernment – distinguishing one thing from another; it can refer to the ability or power of making fine distinctions, which may be considered a virtue or desirable trait (e.g., having discriminatory tastes). Or it can have an unfavorable connotation of a prejudiced or prejudicial outlook, action, or treatment – a distinction in treatment made categorically rather than based on individual considerations and merit; while often considered undesirable, such discrimination might or might not merit being made illegal. In the context of civil rights, discrimination is usually used to mean disadvantaging other people based on a prohibited ground – race, religion, sex, etc. My use of the word “unlawful” was meant to clarify that not all “discrimination” is bad, to distinguish bad and therefore “unlawful” discrimination from legally acceptable discrimination, and, moreover, to recognize that some differential treatment of people with disabilities may be acceptable in certain circumstances, and even necessary as in circumstances where identical treatment would actually disadvantage them. A little more thought would lead me to conclude later that prohibiting “unlawful discrimination” could be largely redundant – a legal provision prohibiting a discriminatory action would automatically make it unlawful.

In each of my two draft provisions, I recognized the need for a separate section delineating which entities and enterprises were covered by the Act’s nondiscrimination requirement by including a reference to “any of the activities, programs, opportunities, benefits, services, or businesses covered under section ___ of this Act.” The listing of activities, programs, opportunities, benefits, services, or businesses expanded upon the Title VI/Title IX/Age Discrimination Act/ Section 504 coverage of “programs and activities” to indicate that the nondiscrimination mandate would apply to an expansive array of things available from and at entities falling under the Act’s jurisdiction.

Though I did not draft a coverage section at that time, my idea was that the Act should cover the nine categories of entities listed in Toward Independence as meriting coverage in a comprehensive equal opportunity law, in order to make it commensurate with the coverage of other types of nondiscrimination laws and to cover particularly problematic types of discrimination on the basis of disability. The Toward Independence list included employers having fifteen or more employees, labor unions, and employment agencies; public accommodations covered by Title II of the Civil Rights Act; housing providers and related entities covered by Title VIII of the Civil Rights Act; states, counties, and local governments; entities in the interstate transportation business; the federal government, federal agencies, federal grantees, federal contractors and subcontractors, federal licensees, and the U.S. Postal Service; and interstate insurance businesses.

Coverage was only one additional consideration that I thought an effective disability nondiscrimination statute would need to contain a section on. So after writing the two versions of a general nondiscrimination provision, I created an outline of the Act’s sections, as follows:

  1. Prohibition of Discrimination
  2. Coverage
  3. Unlawful Discrimination Generally
  4. Standards of Nondiscrimination in Particular Areas
    1. Barriers
    2. Employment
    3. Housing
    4. Transportation
    5. Medical Services
  5. Enforcement

In addition to saying who cannot discriminate and who is entitled to protection from discrimination, nondiscrimination statutes usually elaborate on what kinds of discriminatory actions are or are not prohibited. My picture was that Section C would do this in a broad, cross-categorical manner establishing general principles regarding what does and does not constitute prohibited discrimination under the Act, including elements of nondiscrimination (reasonable accommodation, barrier removal, appropriate qualification standards, etc.), general defenses, and limits on the duty not to discriminate. Section D would establish more specific rules applicable to particular categories of covered activities, and Section E would include provisions establishing how the Act would be enforced by assigning responsibility for the issuance of regulations, and authorizing other enforcement mechanisms, including administrative and legal processes and remedies.

My initial meager foray into ADA composition – drafting a couple of versions of the basic prohibition of discrimination and outlining the principal sections a bill should contain – left me feeling exhilarated but also daunted. I recognized the magnitude of trying to put on paper an effective and comprehensive disability nondiscrimination bill, and was aware that such an undertaking would entail many complexities and potential snags. In short, I found the prospect of taking it on quite intimidating.

On the other hand, I felt that my career path and life experiences with disability had afforded me perspectives and expertise that prepared me, obliged me even, to have input into the development of such a law. My work on the Statutory Blueprint article and in writing the recommendations on Equal Opportunity Laws in Toward Independence were essential for such a task, as were compiling and studying disability rights case law and statutes for my law school casebook (1980) and the Accommodating the Spectrum report (1983). And my litigation experience was invaluable, as handling lawsuits provided unique and vital insights into the strengths and flaws of disability right laws and legal theories in practical application. So, while I knew that drafting a strong and workable ADA would be a very large order, a big part of me was up for the challenge.

Continue to Part 2: My First Partial Draft

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