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Drafting and Introduction of the Original ADA Bill - Part 8

Brad Reynolds’s Piecemeal Approach

On May 12, a mere four days after our meeting with Burns and Reynolds, the latter gave a speech at a “Disability Policy Conference” in a hotel near the Capitol. The Assistant A.G. had apparently given more thought to the Council’s approach to an ADA proposal. He recognized that existing federal civil rights laws protecting people with disabilities are “a patchwork quilt in need of caring and careful repair. There are indeed gaps in coverage, and other failures, that "cry out" for a Federal response to the needs of disabled citizens – a response that is at one time cohesive, coordinated, and comprehensive.”[1] He added, however, “a cautionary note,”:

In recent years, the legislative strategy pursued by many (both within and outside the disability community) has endeavored to sweep within a single piece of legislation all manner of demands advanced by fragile coalitions of interest groups. Such overly ambitious efforts have faltered for the most part because, understandably, multiple pieces   of the intricate puzzle do not fit together as neatly as originally anticipated. … Congress is becoming increasingly leery about passing vaguely-worded, expansive legislation ….[2]

As an alternative approach, Assistant A.G. Reynolds offered what he called “a piecemeal legislative strategy”:

There are on the disability agenda any number of discrete policies that can serve as separate legislative building blocks which ultimately add up to a more comprehensive set of protections for handicapped citizens. I would think a piecemeal legislative strategy could, if carefully devised and ardently pursued, achieve much more, in much less time, and with far more consensus support.[3]

As “the most glaring omission from coverage in the landscape of disability rights laws,” he named “the area of employment coverage in the private sector.”[4] He then explained that

there is no parallel in the disability area to title VII of the Civil Rights Act of 1964, the landmark statute that prohibits discrimination on the basis of race, color, national origin, sex, and religion by all employers, both private and public, with 15 or more employees, without regard to their receipt of Federal funds or contracts. I favor the passage of legislation that will duplicate this coverage for disabled people.[5]

After this notable declaration, Reynolds went on to recommend that legislation protecting people with disabilities from discrimination in employment “should adopt the now-proven standard under section 504… the requirement that an employer make reasonable accommodation to the known mental or physical impairments of qualified disabled persons.”[6]  Not surprisingly, Reynolds added the limitation that he had been pushing, based upon his elevation of Supreme Court dicta, that reasonable accommodations were only required “as long as making them would not result in an undue hardship on the operations of the employer.”

The remarks of the Assistant Attorney General for Civil Rights at the Disability Policy Conference were significant in several ways. He had recognized the need for cohesive, coordinated, and comprehensive federal policy initiatives, recommended strengthened civil rights protection from discrimination for people with disabilities, and expressly pledged his support for passage of a Title-VII-like prohibition on discrimination on the basis of disability in employment. He had endorsed the need for a reasonable accommodation requirement. On the other hand, he had again pushed for a controversial undue hardship limitation on the rights of people with disabilities. Perhaps more importantly as regards the Council’s ADA proposal, he had criticized overly ambitious efforts to “sweep within a single piece of legislation all manner of demands,” and expressed disfavor for “vaguely-worded, expansive legislation”; was he making a lightly veiled, cautionary reference to the Council’s broad and strong equal opportunity law initiative? Would Reynolds’s “piecemeal” approach turn out to be an argument against the Council’s call in Toward Independence for enactment of a comprehensive law with broad coverage, or was he just emphasizing one piece of a bigger puzzle. Time would tell.

As irony would have it, Bradford Reynolds made his presentation at 1:15, and I made a presentation at the conference later that afternoon, discussing the Toward Independence recommendations, with an emphasis on the elements of the ADA proposal. We were not in the room at the same time, so there was no direct debate between us, but the attendees certainly heard two different, but not altogether opposing, perspectives as to what was needed to advance civil rights protection for individuals with disabilities – from me (on behalf of NCD) a comprehensive law, and from Reynolds a piecemeal approach.

Continue to Part 9: May 17-20 Council Meeting and Go-Ahead to Draft an ADA Bill

[1] U.S. Department of Justice, Remarks of the Honorable Wm. Bradford Reynolds, Assistant Attorney General, Civil Rights Division, at the Conference on Disability Policy: The State of the Nation Institute for the Study of Exceptional Children and Youth of the University of Maryland (May 12, 1987) at p. 3.

[2] Id. at p. 3.

[3] Id. at p. 4.

[4] Id.

[5] Id. (emphasis added).

[6] Id.