Drafting and Introduction of the Original ADA Bill - Part 5

Composing My First Full Draft of an ADA Bill

On the whole, the Discussion Draft Outline of Elements of an Equal Opportunity Law provided a good summary of my understanding of the Council’s views on the desired content of the legislation it was proposing. It also captured what I was thinking as I resumed working on my draft of an ADA bill on January 29 and 30 – the last work days before we left for the Council meeting in Miami. Picking up the fragmentary draft that I had laid aside three weeks earlier, I set out in earnest to write an ADA bill. I started with the beginning materials of the January 8 draft. Thus, the heading and the short title remained “The Americans with Disabilities Act of 1987”; the long title continued to be “A BILL To establish a clear and comprehensive prohibition of discrimination on the basis of handicap”; and the “Be it enacted” clause continued as before to contain the typo of “Amercia” for “America” that I had not yet noticed. The Findings and Purposes section still said “[TO BE INSERTED]”; and the Definitions section had 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” from Accommodating the Spectrum.

The fourth section, Scope of Discrimination Prohibited, built upon the prior version but with some significant revisions. First, I expanded categories of entities to be covered under the bill from the two that I had, in the interest of time, used as stand-ins, to the full list of nine included in the recommendations in Toward Independence: (1) the federal government, its agencies, and departments, and the U.S. Postal Service; (2) recipients of federal financial assistance; (3) federal contractors, subcontractors, and licensees; (4) employers in any agency affecting commerce, employment agencies, and labor unions; (5) providers of housing covered by Title VIII of the Civil Rights Act of 1968 (the Fair Housing Act); (6) public accommodations covered by Title II of the Civil Rights Act of 1964; (7) persons, companies, and agencies in the business of interstate transportation of persons, goods, documents, or data; (8) persons, companies, and agencies using the mails or interstate communications and telecommunications for selling, arranging, or providing insurance; (9) and states, counties, and local governments. In developing this list of entities to be covered by the legislation, I followed up on the notion in the Statutory Blueprint that Congress should use all the power it possesses to prohibit disability discrimination as broadly as possible, and tried to include as many areas of congressional authority as I could think of. I sought to parallel the coverage of prior civil rights laws, particularly Titles II, VI, and VII of the Civil Rights Act of 1964, and provisions of that law dealing with state and local government; and Title VIII of the Civil Rights Act 1968 (the Fair Housing Act). In a few instances – as in covering entities in “the business of interstate transportation of persons, goods, documents, or data”; and entities using “the mails or interstate communications services for the business of selling, arranging or providing insurance,” I went beyond prior civil rights laws.

In articulating the scope of the nondiscrimination mandate, I chose, in lieu of the phrase “handicap discrimination” in my prior drafting, to substitute “discrimination on the basis of handicap” to follow the pattern of Title VI of the Civil Rights Act, the Age Discrimination Act, and Title IX of the Education Amendments of 1972. And whereas my prior draft had prohibited discrimination “by any of the following,” I now wrote “in any of the programs, activities, or operations of”; this reformulation avoided problems with restrictive interpretations of which parts, activities, or enterprises of a covered entity were subject to the nondiscrimination requirement, interpretations that had plagued Section 504 and other laws.

These examples suggest, and subsequent efforts would make clear, that seemingly minor changes in the drafting often involved considerable analysis, mulling over, and rethinking of nuances, consequences, and problems that could be thorny and highly significant. The language that I eventually opted to put into the draft often gave no indication of the other ideas and wording that I had considered but found wanting. The upshot was that the work did not go quickly. When I left the office on Thursday evening I knew I would need to get a lot of writing done on Friday, before we packed up and headed off to the Miami meeting. A complication was that Andi and I had theater plans with another couple for Friday night. A couple of weeks before, Bob Johnson, the Executive Director of the Architectural and Transportation Barriers Compliance Board, with whom Andi had become friends during the time she had worked for the Board, called and told her that he and his wife had extra tickets for a Shakespeare Theatre Company performance of the at the Folger Theatre, and invited us to join them. We had readily agreed and did not want to back out at the last minute. So I resolved to finish my drafting by the end of the work day on Friday.

A major substantive section dealt with Forms of Discrimination Prohibited; it contained two subsections, one telling what kinds of actions or omissions would be prohibited and a second stating what the bill would not prohibit. Subsection (a) contained four provisions that closely followed my January 8 draft, first listing the general forms of discrimination based on Section 504 regulations (intentional exclusion; unintentional exclusion; segregation; unequal or inferior services, benefits, or activities; and less effective services, benefits, or activities); and then addressing three other types of discrimination – architectural, transportation, and communication barriers; failing or refusing to make reasonable accommodations (in this draft I abandoned my previous phrasing of “practicable modifications” and opted for the more common phrasing, “reasonable accommodations); and discriminatory qualification standards, selection criteria, and eligibility criteria. Subsection (b) clarified that two things would not constitute discrimination on the basis of handicap. The first was exclusion or other denial of equal treatment for reasons wholly unrelated to a person’s physical or mental impairment, perceived impairment, or record of impairment. This provision was designed to avoid any possible misconception that the bill would make it illegal to exclude or otherwise treat disadvantageously a person with a disability even if the negative treatment was for some reason, e.g., dishonesty, not following directions, political affiliation, wearing ugly ties, rooting for the Dodgers, liking or disliking guns, other than physical or mental impairment. Uninformed people sometimes believed that Section 504 meant that you would get into legal trouble if you ever fired or refused to hire a person with a disability for any reason, and I wanted to preclude any such misconstruction from the outset.

As a somewhat related clarification, the draft stated that the another category of action that would not constitute discrimination was exclusion or other denial of equal treatment to a person based on the “bona fide application of qualifications standards, selection criteria, performance standards, or eligibility criteria that are both reasonably necessary and related to the ability to perform or participate in the essential components of the particular job, program, activity, or opportunity.” One of the forms of discrimination prohibited earlier in the draft was the imposition or application of discriminatory standards or criteria. The idea behind the present provision was to make it clear that covered entities would be permitted to apply legitimate, non-discriminatory standards and criteria even if they resulted in the exclusion or disadvantaging of a person by reason of her or his physical or mental impairment. In short, excluding a person who is not qualified is not discrimination. Such a provision would resolve the “blind-bus-driver” – people whose disability actually prevents them from participating or performing essential parts of a job or activity – conundrum without the unfortunate complications of the Section 504 “otherwise qualified person with a disability” protected-class approach. Thus, covered entities would be allowed to have criteria or standards for participation, even ones that would screen out people with a disability, so long as the criteria or standards were necessary and legitimately related to performance of essential functions of a job, activity or program.

In including in the prohibited forms of discrimination the failure to make reasonable accommodations and creating or failing to remove architectural, transportation, or communication barriers, questions were left unresolved as to how much accommodation and barrier removal would be required, and when they would have to be done. I decided to address those questions in a section titled “Limitations on the Duties of Accommodation and Barrier Removal.”

At some point while I was working to unravel the complications involved in drafting the forms of discrimination and limitations sections, the end of the work day came and went, and it was clear that I was not going to finish the draft bill before we were due to meet the Johnsons for the Shakespeare play. I suppose I could have just put the bill-drafting aside until after the Council meeting, but I had several reasons why I was not inclined to do so. I had no clear idea whether the subject of the Council developing a bill would come up at the meeting, but in case it did I wanted to be able to give the members a realistic appraisal of the feasibility of doing so and what would be involved, including, perhaps, alerting them to any analytical obstructions or minefields. In case the prospect of the Council asking or assigning me to draft such a bill came up, I wanted to know how hard it would be, what timeframe would be realistic, and ultimately to assure myself that it was something I could do. Conversely, if the Council desired to produce a bill, I wanted to be ready in case they entertained visions of getting someone else to write it, and I thought I might preempt such speculation by telling them that I had a draft or was working on one. Also, I had come so far in my drafting and gotten close enough to finishing that I was driven to want to finish it before we left for the meeting (Not to mention the reality that I had been waiting a long time to do this job and my adrenaline was flowing).

I wanted, however, to have it both ways – Shakespeare and the draft bill – so I suggested to Andi that we go to the play and then I would return to the office and try to finish the bill. She was a good sport and agreed to go along with the idea, so we drove over to the Folger Theatre by curtain-time. We had a very pleasant evening and then returned to the Council office. Andi good-naturedly offered to keep me company while I worked. A few times, I discussed some substantive issue or wording-choice question with her, but mostly she was waiting around while I tapped away at my word processor. Minutes, then hours, slipped by, and Andi eventually crammed herself onto a small, uncomfortable wooden loveseat in the outer office area and dozed off.

Meanwhile I began wrestling with the section on limitations on barrier removal and reasonable accommodation, against a backdrop notion that things open to the public should be open to individuals with disabilities. This raised some of the most challenging, tricky questions in formulating disability rights legislation – how far and how fast should covered entities be required to go in providing equal opportunities for people with disabilities; and, in anticipation that the draft bill would be the starting point of negotiations, debate, and compromises, what should the first offer or opening bid be? I was very aware that whatever I drafted was not going to be accepted without extensive modification and revisions, but I wanted to find advantageous and justifiable positions from which to engage in negotiations and bargaining.

I began the section with a provision that applied a “fundamental alteration” limit to the obligation to remove barriers and to make reasonable accommodations, consistent with the language we had included in the draft Council Section 504 regulation. As discussed in the previous part, the Department of Justice prototype for federally conducted programs and activities exempted, from the requirement that a federal agency ensure program accessibility, “any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens.” Assistant Attorney General for Civil Rights Bradford Reynolds argued that the two standards were appropriate in light of the Supreme Court’s decision in Southeastern Community College v. Davis.[1]  But, since the Davis case itself involved the issue of fundamental alteration and not undue burdens, many disability advocates, including especially Tim Cook (ace disability rights advocate and former Department of Justice attorney), the Council, and the Civil Rights Commission, had taken the position that the “undue financial and administrative burdens” limitation was neither necessary nor desirable. Since I strongly agreed with that reasoning, I did not include an undue burdens limitation. Perhaps an undue burdens standard would have to be inserted before such a law could be enacted, but I refused to concede that point at the start.

The Council’s proposal in Toward Independence of a comprehensive nondiscrimination mandate that would apply to private employers and public accommodations had been met, however (not surprisingly), with a complaint from a few business operators that such a requirement would “put us out of business.” To head off such a contention, I decided to say, in no uncertain terms, that the bill’s requirements would not derail, wipe out, or bankrupt any business enterprise. The first limitations provision stated that making reasonable accommodations and removing architectural, transportation, and communication barriers would not be required “if such modifications or barrier removal would fundamentally alter the essential nature or threaten the existence of the program, activity, business, or facility in question.” This provision would later be misunderstood, mischaracterized, and badmouthed.

How Long Until Accessibility Is Required?

It seemed apparent to me that the standards applied under the bill should require newly constructed buildings and facilities it covered to be accessible, since studies had shown that, when planned from the get-go, expenses associated with making structures accessible (barrier free) for use by people with disabilities were very doable at only a tiny percentage of overall construction costs. Even the Council’s most conservative, business-minded members, when presented with cost/benefits data, had endorsed an accessibility requirement for newly constructed buildings. The question of the extent to which covered entities should have to make existing buildings and facilities accessible was more difficult and controversial, however. Making an existing structure accessible, commonly termed “retrofitting,” could sometimes involve drastic alterations entailing significant costs, or in some cases be nearly impossible. Does that mean that businesses located in inaccessible buildings should get a pass and be permitted to operate in premises that bar access to many individuals with disabilities and continue to do so indefinitely?

One of my strong convictions and orienting principles was that businesses and government services that are open to the public should be equally open and available for use by people with disabilities, and that a day should come when government agencies and all businesses in America serving the general public should be obliged to conduct their trades in places that offer equal access and use by those with disabilities. I believed that how soon such a day would come would have to be a matter of debate and compromise; perhaps practical and political realities might necessitate that it would have to be thirty or fifty years in the future. But I was not prepared to say that inaccessible public buildings and public accommodations would be permitted to remain so forever.

Accordingly, I concluded that the best way to inject a degree of flexibility into an accessibility mandate was in regard to how much time covered entities should be given in making substantial modifications to remove barriers in existing structures. The question, then, became not if, but when, covered entities should be required to make their existing facilities accessible or, alternatively, to move their operations to accessible premises. With sufficient lead time, I thought it would be totally realistic and appropriate to give covered entities a choice between: (1) renovating their existing facilities to achieve accessibility if doing so was practicable, or (2) if it was not doable or they preferred not to retrofit, to relocate to an accessible space. In the long term, public facilities that could not be made accessible would have to be used for some purpose or activity that would not involve being open to the public, or torn down. As I envisioned it, the renovate-or-relocate requirement would be subject to the limitation discussed above that the option under consideration not threaten the existence or otherwise fundamentally alter the essential nature of the program, activity, business, or facility. The result would be to move toward eventual accessibility of public accommodations and governmental buildings over a realistic transition period whose length would be negotiated during congressional consideration of such legislation.

The question for me, however, was where to place the bar in terms of the length of time allotted for covered entities to render existing facilities accessible in my initial draft of an ADA bill. In our society in which accessibility for people with disabilities was not the rule, but a sporadic, rare exception to the norm, I expected considerable pressure would be applied to delay any existing-buildings accessibility mandate. Consequently, I elected to start with a precipitous target. I wrote that, unless other laws or regulations required earlier action, substantial modifications to existing buildings to remove architectural, transportation, and communication barriers had to be made “within a reasonable period of time, not to exceed two years from the effective date of this Act,” except that regulations promulgated under the Act “may allow up to five years from the effective date … where reasonably necessary for the completion of such modifications to particular classes of buildings and facilities.” Thus, covered entities would have two years after the Act took effect to remove accessibility barriers, or up to five years for classes of buildings designated in federal regulations as requiring additional time. I drafted a similar provision for substantial modifications to existing platforms and stations of mass transportation systems which, unless other laws or regulations stipulated an earlier completion, would be required to be completed within “a reasonable period of time” that in no event was to exceed fifteen years; in part, this provision was designed to augment existing federal requirements of accessibility that applied to “key stations” to phase in a mandate for accessibility in other stations, and also in transportation vehicles.

I fully expected that the timeframes for retrofitting would be extended during negotiations. I suspected that the Council might itself wish to postpone the compliance date in the interest of appearing more business-friendly. And compromises on this issue during the congressional consideration process were a virtual certainty. I hoped that support from within the grassroots disability community would help to prevent the accessibility timelines from being stretched too far, but I would not have been shocked if they were postponed a decade or more. In a worst case scenario, a fully accessible society in twenty or thirty years would be preferable to accepting inaccessibility indefinitely.

After completing the “Limitations on the Duties of Accommodation and Barrier Removal” section, I turned to procedural provisions for implementing and enforcing the legislation. I wrote a Section 7 that covered “Regulations.” It directed what was then the Architectural and Transportation Barriers Compliance Board (now called the “United States Access Board”) to supplement its existing minimum guidelines for accessibility by establishing standards for architectural, transportation, and communication barriers accessibility under the legislation. And it called for the EEOC, the Department of Housing and Urban Development, the Department of Transportation, the Department of Commerce (in regard to public accommodations), the Department of Labor, and the Attorney General (in regard to states and agencies and political subdivisions of states, and the insurance industry) to issue regulations for the implementation and enforcement of the Act’s requirements, within one year after the Act took effect. In addition, all executive federal agencies would be required to issue additional regulations as necessary to implement ADA requirements governing programs or activities they conducted, and agencies or persons they licensed or provided federal financial assistance to.

Finally, to forestall fears that enactment of the ADA would somehow undercut or invalidate existing Section 504 regulations, I inserted a provision declaring that Section 504 regulations would “remain in effect unless and until they are superseded by regulations promulgated under this Act,” and that “in no event” would regulations under the ADA “provide less protection against discrimination” than under existing Section 504 regulations. I considered this a rock-solid guarantee that no Section 504 sky-is-falling scenario could result from the passage of the ADA bill.

Next I crafted a “Private Rights of Action” section designed to avoid some issues that had arisen under some provisions of the Civil Rights Act of 1964 and Section 504. Neither Section 504 nor Title VI of the Civil Rights Act mentioned a private right of action allowing an aggrieved party to file a lawsuit; fortunately, the courts came to recognize an “implied right of action” under those laws. To avoid any confusion, I included language expressly authorizing people subjected to discrimination on the basis of disability to file an action in federal district court seeking injunctive relief, monetary damages, or both. Recognizing that conduct directly entailing disability discrimination, as, for example, failing to incorporate accessibility features in constructing buildings, not having interpreters at a hospital where a deaf person is to be admitted in the near future for surgery or delivery of a baby, or the absence of accessible vehicles in a fleet of taxis, inevitably leads to irreparable harm to people with disabilities, I made the private right of action available not just to people already harmed, but also to those “about to be subjected to discrimination.” To preclude controversy that had plagued some federal court litigation, I provided that federal district courts would have jurisdiction over ADA cases without regard to the amount in controversy. And to avoid another sometimes contentious issue, I clarified that the prevailing party in ADA lawsuits (other than the U.S. government) could, in the courts’ discretion, recover attorney’s fees.

The last section of the bill provided simply that “[t]his Act shall take effect upon the date of its enactment.” As my blurry eyes surveyed the completed draft on my word processor screen sometime between 3:00 and 4:00 in the morning of Saturday January 31, 1987, the full outline was as follows:

SECTION 1.               SHORT TITLE

SECTION 2.               FINDINGS AND PURPOSES (which needed to be inserted)

SECTION 3.               DEFINITIONS

SECTION 4.               SCOPE OF DISCRIMINATION PROHIBITED

SECTION 5.               FORMS OF DISCRIMINATION PROHIBITED

SECTION 6.               LIMITATIONS ON THE DUTIES OF ACCOMMODATION AND BARRIER REMOVAL

SECTION 7.               REGULATIONS

SECTION 8.               PRIVATE RIGHTS OF ACTION

SECTION 9.               EFFECTIVE DATE

In a mere five pages, that was it – the complete (except for the to-be-inserted Findings and Purposes) original draft of the bill. I still had not noticed the typo “United States of Amercia” in the “Be it enacted” clause. As Andi and I left the Council office with my draft ADA in hand, for a few hours of shut-eye before heading to the airport for the Council meeting in Miami, I was punchy with exhaustion, but had a gratifying sense of accomplishment.

Continue to Part 6: Council Meeting in Miami, February 1-4, 1987

[1] 442 U.S. 397, 410, 412 (1979).