Drafting and Introduction of the Original ADA Bill - Part 4
“Discussion Draft Outline of Elements of an Equal Opportunity Law”
Lex was aware that I was at work on a “discussion draft outline of elements of an equal opportunity law.” The recommendations in Toward Independence were pretty clear and somewhat specific about what should go into a comprehensive disability nondiscrimination law, but the idea of the “outline of elements” was to go one step further and be more explicit about what an actual bill ought to contain; accordingly, the document would bridge the gap between the Toward Independence recommendations and a draft bill. As we prepared for the February 1987 Council meeting, at which the members would review a “Workplan Projects Progress Report” cataloguing the work we had done in 1986 and would be doing in 1987, Lex and I had agreed that the outline of elements would be a good, concrete work product on the equal opportunity law to have available to distribute out to the Council. But Lex did not know that I had already begun to work on a draft bill. Neither he nor the Council members had requested that I write a bill, and, while I thought it prudent to get a head start in case they did so, I did not want to appear to have presumptuously put the cart before the horse or preempted their prerogatives and authority by proceeding on my own. I was also not sure when (and if) the drafting I was doing would turn out well enough for me to want to go public with it. So, for the time being, I kept secret my plan to write a first draft of an ADA.
I needed to finish the outline of elements by the end of January 1987 so it would be available to the Council at its meeting on February 1st to 4th. I got very busy during the last week of January and managed to complete the outline on Wednesday the 28th, though I dated it February 1 – the first day of the Council meeting. It was a four-page, single-spaced document that began with a paragraph giving a succinct “Background” about the need for a comprehensive disability equal opportunity law proposal and its origins in the Council’s Toward Independence report. A second section listed “primary goals” of such a law in the following terms: “(a) to provide coverage commensurate with that afforded in statutes prohibiting race, sex, national origin, and religious discrimination; (2) to provide clear, strong, consistent, enforceable standards for addressing discrimination against persons with disabilities; and (3) to address the major areas of discrimination faced day-to-day by people with disabilities.” The remainder of the document consisted of eight subsections setting out “Proposed Elements” under the following headings: A. Scope of Coverage, B. Forms of Discrimination Prohibited, C. Limits on Duties of Accommodation and Barrier Removal, D. Regulations, E. Private Right of Action, F. Who Would Be Protected? G. Definitions, and H. Terminology.
Most of the proposed elements described were fairly straightforward applications of approaches laid out in Toward Independence, but a few merited additional elaboration. In the paragraph addressing limits on accommodation and barrier-removal obligations, I contended that there were two polar positions on such limits – on the one hand, the argument by some disability advocates that there should be no limitations on the duty not to discriminate on the basis of disability; and on the other, the recognition in regulations of DOJ and other agencies conforming to them, and in some court decisions, of the “undue hardship” defense that permitted the cost of modifications to serve by itself as a justification for not making them. And I characterized the Council’s “fundamental alteration” standard as staking a middle ground between the two extremes that would permit cost to be a consideration but that would be decisive only if it would have a drastic impact:
This would require the making of changes in facilities and operations to allow persons with disabilities to participate, unless such modifications would threaten the existence of or fundamentally alter the essential nature of the program or business in question. This provides a realistic, yet suitably narrow, limitation upon duties to accommodate and remove barriers.
This was the same course that we had followed in writing the Council’s proposed regulation for its implementation of Section 504. This approach would become the source of considerable controversy in the future.
The “Who Would Be Protected?” subsection contrasted the Section 504 approach of limiting protection to “handicapped individuals” with other civil rights laws that simply prohibit discrimination “on the basis of” race, or sex, or religion, etc., without creating a protected class of persons. The outline subsection reported that the Council favored the latter (“on the basis of”) approach. Moreover, the Council recommended that, instead of affording protection only to “otherwise qualified” individuals, the legislation should deal with the issue of qualifications in the context of providing what does or does not constitute discrimination. Under such an approach, discriminatory qualification standards would be a form of prohibited discrimination, and excluding people who are not qualified would be declared not to be discrimination.
In regard to “Definitions,” I explained that the Council proposed using the definitions of “physical or mental impairment,” “regarded as having an impairment,” and “record of impairment” established in Section 504 regulations; and the definition of “reasonable accommodation” found in the Accommodating the Spectrum report of the U.S. Commission on Civil Rights. As to “Terminology,” the outline of elements indicated that the Council preferred to use the term “persons with disabilities” to refer to people with such conditions, but would refer to the discriminatory actions to be prohibited as “discrimination on the basis of handicap.” It explained that in many court decisions and journal articles, the phrase “discrimination on the basis of handicap” had become a legal term of art.