Drafting and Introduction of the Original ADA Bill - Part 3

Input from Close Colleagues

Before I picked up the bill-drafting again, I decided to seek the input of Kathy Roy, the one person on the Council’s staff who had worked on Capitol Hill (for the Senate Committee on Labor and Human Resources), where she had gained a good understanding of the inner workings of the congressional lawmaking process. From having worked with her and observing her contributions to the Toward Independence topic papers, I knew that Kathy was a bright and savvy disability rights advocate. I arranged a meeting with her on January 14, and told her in advance that I was trying to conceptualize what the ADA might look like as a bill, and asked her to suggest what she thought such a bill should include. She gave me useful input on various issues, including expansive coverage of employers and other governmental and private entities; forms of discrimination to be prohibited; requiring the issuance of regulations; creating a private right of action, making attorneys’ fees available, and ensuring the availability of other remedies; and addressing problems that had arisen from the application of the “fundamental alteration” standard, which I understood to mean avoiding the “undue financial and administrative burdens” restriction that the Department of Justice and some courts were applying under Section 504. Kathy had read the Equal Opportunity Laws recommendations in Toward Independence, so much of her input was consistent with what I had already envisioned, but her thinking was clear, thoughtful, and reassuring that I was basically on the right track.

Another person I consulted at this point was my close friend Chris Bell, who by this time was working as a Special Assistant to Evan Kemp, then Commissioner and later Chairman of the Equal Employment Opportunity Commission (EEOC). Chris and I had been imagining, scheming about, and conceptualizing a broad disability nondiscrimination statute for several years, beginning with our work on Accommodating the Spectrum and, even more so, in writing our Statutory Blueprint article. My recollection is that I tried to be somewhat cagey in telling Chris what I was up to, because at the time I was far from ready for word to get out (particularly to Chris’s bosses at the EEOC) that I was working on a draft bill. I told him something along the lines of my trying to get more specific about the elements that should go into an ADA bill (which was true). Knowing me as well as he did, Chris probably had a pretty good idea of where all this was leading, which was not a big concern for me because of my trust in his ability to be discrete and keep confidences.

Chris underscored some general points that he and I had discussed and agreed upon many times previously, such as the importance of reasonable accommodations required to enable a person with a disability perform a particular job; the need to prohibit discriminatory qualifications; the related, but distinct, need for a definition of “qualified”; and the need to avoid the unfortunate word “solely” that is a blight on the Section 504 prohibition of discrimination. He particularly stressed the need to adopt a better definition of “handicapped individual” focusing more on people having been discriminated against than on their limitations, before, as he put it, “EEOC guts it” – referring to an increasing tendency of the Commission to rely on technical, medically-based standards of what did and did not constitute disability.

Most of his other suggestions related to enforcement and remedies. He wanted EEOC to be granted administrative enforcement authority and the option of bringing and intervening in lawsuits under Section 501 (discrimination by federal executive agencies) and Section 503 (federal contractors); he also believed that persons alleging discrimination under Section 501 or 503 should have a private right of action (right to bring a lawsuit). He urged me to pay careful attention to issues that had arisen in regard to legal remedies available under Section 504, including distinctions being made on the availability of prospective relief versus retrospective relief, whether monetary damages were available, whether plaintiffs have the right to a jury trial, and to what extent the relief available depended upon whether discrimination was shown to be intentional. Finally Chris advised me, in thinking about the fashioning of remedies, to consider Section 505 of the Rehabilitation Act in which Congress in 1978 added a provision regarding remedies available under Section 501 that allowed courts to take into account the “reasonableness of the cost of any necessary work place accommodation, and the availability of alternatives therefore” – a formulation that confusingly mingles the question of whether the reasonable accommodation requirement, which includes a reasonableness of costs consideration, has been violated, with the question of remedies for a violation. In all of these comments and ideas, Chris provided the kind of quality, well-considered analysis and insights that I had come to expect from him.

By this time, Andi (who was handling congressional affairs and public relations matters at the Council) and I had been dating for more than a year. People often say that it is not a good idea to work with someone with whom you are having a romantic relationship, but Andi and I had developed a great professional relationship while we cultivated our personal one. Indeed, our work-life connection, consistently collaborative rather than competitive, was generally smoother than our personal interaction, which occasionally had its stormy periods. It certainly helped that we shared a deep commitment to the cause of disability rights and were collaborating on what we each considered exciting, highly important work. When we critiqued each other’s work products (sometimes sharply), it never caused resentment or rancor. For my part, though I certainly did not always agree with all of her suggestions and corrections, I had learned to respect Andi’s professional standards and insights enough to understand that her input was always sincerely intended to help make my work stronger and better. I had been keeping Andi apprised of my initial efforts toward drafting an ADA bill. She encouraged me in this undertaking and offered substantive advice from time to time (after all, she had done her doctoral thesis on the effectiveness of Section 504 in higher education). Given her background in therapeutic recreation, it was not surprising that she kept reminding me of the importance of prohibiting discrimination in recreation and leisure activities, underscoring that, outside of their jobs, most of people’s waking-time is spent in recreation and, when people assess the quality of their lives, a primary determinant they point to is typically their recreational pursuits, including sports, travel, hobbies, and other leisure activities.

Continue to Part 4: "Discussion Draft Outline of Elements of an Equal Opportunity Law”