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Drafting and Introduction of the Original ADA Bill - Part 9

May 17-20 Council Meeting and Go-Ahead to Draft an ADA Bill

Consistent with its primary recommendation in Toward Independence, reiterated at subsequent meetings of the Council, at the May 1987 quarterly meeting NCD doubled down on its commitment to pursuing enactment of a comprehensive federal law guaranteeing equal opportunity for persons with disabilities to be called the Americans with Disabilities Act.

It decided to move forward by officially sanctioning the development of its own proposed ADA bill. Unlike the theoretical dialogue with me at the February meeting as to whether I could draft such a bill, in May the Council officially sanctioned me to begin writing an ADA bill, under Lex’s supervision, for presentation to the Council for its consideration.[1]

The Council continued to embrace fully and fervently the belief that the legislative proposal the members envisioned should be broad and comprehensive, dismissing without question the idea of any partial or piecemeal approach to prohibiting discrimination against people with disabilities. At the May meeting, I learned that a few Council members, Lex, and a few other people in the disability community had had discussions about the form such a law should take – focused primarily on whether the Council’s proposal should be a separate law or a part of the Civil Rights Act. When I heard about such discussions, I was somewhat amused because those involved did not really understand either the civil rights community’s perspective on amending the 1964 Act, nor the legal pros and cons for either approach. Moreover, there was a possible third approach – putting the new law as a new section in some other existing statute, such as the Rehabilitation Act. I previously described how I had “punted” or “kicked the can down the road” by not including a stance on these alternatives in the Toward Independence topic paper on Equal Opportunity Laws. Now I recognized it was imperative for me to get off the fence (how many mixed metaphors is that?) and help the Council resolve this issue in the draft bill.

I had actually been considering all three alternatives – amending the Civil Rights Act; a freestanding act; or amending Title V of the Rehabilitation Act, which contained a Section 504 modeled on Title VI of the Civil Rights Act. Section 504, though an extremely important statute in many ways, was actually poorly drafted and had some serious flaws that I did not want to have our bill associated with. Moreover, Title V of the Rehab Act was a tiny piece sneaked into rehabilitation legislation that was principally oriented toward rehabilitation services and eligibility, that would tend to hide our comprehensive nondiscrimination piece.

As to amending the Civil Rights Act, which had been proposed by some disability organizations at times -- usually by just adding "disability" to the language of the provisions of the 1964 Act, the civil rights community was very resistant to the idea of amending the Act in any way, for fear that it would open the door to weakening amendments undercutting existing favorable language and analysis under the Act. Moreover, I had argued that the proposal that became the ADA had to differ from traditional civil rights law in various ways. In Accommodating the Spectrum of Individual Abilities, a report I co-authored for the Civil Rights Commission, we had devoted many pages to analyzing which reasoning and analysis under Title VII of the Civil Rights Act did or did not work in the disability discrimination process. A disability nondiscrimination law needed to incorporate some nondiscrimination standards that were relative and limited, instead of all or nothing. For example, a key provision of disability rights law is a requirement for covered entities to make "reasonable accommodation" for the needs and abilities of individuals with disabilities; this requirement is limited by an undue burdens limitation, meaning that a covered entity doesn't have to make an accommodation that is unduly burdensome. There are few legitimate grounds/excuses for race, ethnic, and sex discrimination, which makes prohibiting them more straightforward in some ways. In fact, an underlying goal of most traditional civil rights standards is often to treat everybody identically, without regard to race, ethnicity, sex, etc. With disability, however, although there is certainly a strong objective of treating people with disabilities the way others are treated, there also needs to be a recognition that particular individuals with disabilities may not be able to do certain things or to do them in the same way that other people do, and that treating everyone identically in the assumption that everybody is the same can actually be an act of discrimination. For example, allowing people to attend a meeting regardless of disability may be treating them all identically, but will severely disadvantage deaf attendees if there are no sign language interpreters or live captioning services.

In any event, without overdoing the point, the fact is that disability nondiscrimination works differently and is often more complicated than traditional civil rights nondiscrimination. Accordingly, I was concerned that there was a danger of confusion and bleeding over of standards under these different types of laws if they are too closely associated with one another. Moreover, there were areas, such as in the breadth of "public accommodations" to be covered, where we wanted to try to go beyond the 1964 Act.

I ultimately advised NCD that the cleanest, most efficacious way to create an effective disability nondiscrimination law was to propose a freestanding law that would be less likely to "bleed" into Civil Rights Act analysis, and vice-versa. When I explained this reasoning to the members of the Council, and advised them that we ought to formulate our ADA proposal as a new, freestanding law, they readily acceded to my advice.

Continue to Part 10: Fair Housing Amendments Act Legislation

[1] National Council on Disability, Equality of Opportunity: The Making of the Americans with Disabilities Act, p. 61 (1997).