Twenty years ago this month, President George H.W. Bush signed into law the most sweeping anti-discrimination measure enacted by the Congress since the passage of the Civil Rights Act of 1964 – the Americans with Disabilities Act of 1990 (“ADA”). The ADA, which then President Bush described as the “world’s first comprehensive declaration of equality for people with disabilities,” has as its purpose nothing less than to bring into society’s mainstream the millions of Americans with disabilities.
This month, therefore, is a time for celebration of what has been termed the “declaration of independence” of individuals with disabilities. For far too long, individuals with disabilities had remained largely hidden due to discriminatory attitudes and misconceptions which prevented them from working, taking mass transit, going to theaters, museums, and restaurants, and other places where the public gathers. The ADA was enacted to enable what had been termed this “hidden minority” to participate fully in society and to partake of the opportunities generally available to all Americans.
In addition to celebrating the great achievement that marks the ADA’s enactment into law, this month also offers us the opportunity for reflection and for an assessment of the extent to which the important and laudable goals of the ADA have been achieved. Such an assessment will allow all of us to direct our attention to what remains to be done to bring us closer to what President Bush described at the ADA signing ceremony as “that day when no Americans will ever be deprived of their basic guarantees of life, liberty, and pursuit of happiness.”
The Remarkable Coalition Behind the ADA
Before we consider the ADA’s impact over the last twenty years, it is worthwhile to take a moment to recall the remarkable coalition of Republicans and Democrats, of conservatives and liberals, and of business and union leaders, who all came together with disability rights advocates and ordinary persons to forge the coalition that resulted in the passage of this landmark piece of legislation. In today’s fractured political environment where attack ads and personal invective are all too common, it is hard to imagine that twenty years ago individuals from all sides of the political spectrum joined hand in hand to work together in a constructive fashion to achieve the goal of advancing the rights of people with disabilities.
The remarkable coalition that led to the passage of the Americans with Disabilities Act had as its impetus the published recommendations of the National Council on Disability, originally known as the National Council on the Handicapped. In its 1986 publication, Toward Independence, the Council recommended the enactment of a “comprehensive law requiring equal opportunity for individuals with disabilities, with broad coverage and setting clear, consistent, and enforceable standards prohibiting discrimination on the basis of handicap.” The thought was to take the anti-discrimination requirements of the 1973 Rehabilitation Act, which prohibits discrimination on the basis of disability by federal agencies, federal contractors, and those receiving federal financial assistance, and apply those requirements to the private sector. Two years later, in 1988, the National Council on Disability issued its second report, On the Threshold of Independence, which included a draft statute entitled “The Americans with Disabilities Act of 1988.” The framework of this draft bill was used to fashion the legislation that ultimately became the Americans with Disabilities Act of 1990.
The movement toward broad-based anti-discrimination legislation in the private sector was not limited to specific advocacy groups, but was one that also included what has been termed a “hidden army” present in families across the nation. Because a fifth of the country’s population has some form of disability, ranging from mental retardation to severe arthritis, it has been said that “disability impacts practically every family” and it is these family members of individuals with disabilities who formed this “hidden army” of ADA supporters. Indeed, as the draft legislation that would become the Americans with Disabilities Act wound its way through the legislative process, politicians from both sides of the political aisle made it clear that their personal experiences served as an impetus for their support of passage of the Act.
These political leaders included not only then President George H.W. Bush and his Attorney General Richard Thornburg, but also such political power brokers as Representative Tony Coehelo (D. Cal.) and Senators Lowell Weicker (R. Conn.), Tom Harkin (D. Iowa), Edward Kennedy (D. Mass.), and Robert Dole (R. Kan.). These forceful advocates used their personal experiences to resolve what could have been potentially derailing differences and ensure that passage of the ADA would occur. The strength of the bipartisan political support for the ADA that led to its enactment into law in July, 1990 is exemplified by the fact that the legislation was approved in the House of Representatives by an overwhelming 377-27 margin, with the Senate passing the legislation by a vote of 91-6.
Supreme Court Limitations on ADA
Notwithstanding the enormous bipartisan support for the ADA and its stated purpose of providing strong and effective civil rights protections for individuals with disabilities, the practical difficulties enforcing the statute started to become clear soon after the Act took effect in 1992. Rather than setting forth a specific list of medical conditions that would be covered as disabilities under the statute, the ADA established a functional definition based upon whether an individual’s physical or mental impairment substantially limited a major life activity. This very general and somewhat vague statutory language caused the courts to express concern about the potential scope and ramifications of the legislation’s anti-discrimination provisions.
The need for clarity and guidance on how the broad strokes of the statutory language should be interpreted and implemented most notably found its expression in a trio of Supreme Court cases dealing with the definition of disability, which were all decided on the same day: June 23, 1999. In the lead case considered by the Court, Sutton v. United Air Lines, Inc., the Supreme Court limited the broad scope of the statutory definition of “disability” by holding that mitigating measures, such as medication and medical devices, are to be taken into account in determining whether a person with a physical or mental impairment satisfies the ADA definition of disability by being substantially limited in a major life activity. Additionally, the Court took the view if a person’s medical impairment prevented that individual from performing his or her job only, this would not be substantially limiting unless the individual were additionally limited in a broad class or range of jobs.
The upshot of the Supreme Court’s decisions was to exempt many persons with physical or mental impairments from claiming the ADA’s protections. Moreover, for those individuals whose disability was sufficiently severe to warrant ADA coverage under the stringent Supreme Court standards, that person’s disability likely would be so severe that even with a reasonable accommodation, the individual could not perform the essential job functions. This created, what has been termed, the classic Catch-22 situation for persons seeking to pursue ADA claims – either not disabled enough to claim the statute’s protections or too disabled to be qualified to perform the job even with reasonable accommodation.
ADAAA: Broadening the Definition of Disability
The impact of the Supreme Court’s decisions narrowly construing the ADA definition of disability led to the situation where many individuals who sought to claim the protections of the statute were unsuccessful in court because, with mitigating measures, their medical conditions could not be said to rise to the level of a disability or if they satisfied the stringent requirements, they were not qualified for the job they sought or held. This state of affairs prompted a new impetus to create a legislative “fix” to what many disability rights advocates saw as the Supreme Court’s undue weakening of the ADA’s promised protections.
Although it took a number of years to build a sufficient ground swell for the passage of remedial legislation, in 2008 a coalition of both disability rights advocates and business interests came together to support legislation that would basically undo the Supreme Court’s 1999 decisions. The prospect of the election of Barack Obama as president in 2008 coupled with Democratic majorities in the House and Senate created a political environment where representatives of the business community decided to accept a compromise piece of legislation prior to the November elections, rather than wait until 2009 when their leverage with a Democratic congress and administration would be lessened dramatically. It was out of this political calculus that the Americans with Disabilities Act Amendments Act (“ADAAA”) was born. Under the compromise proposal, the new legislation broadened the definition of disability beyond that articulated by the Supreme Court, but still did not treat every physical or mental impairment as being covered by the ADA.
Thus, during the politically heated summer and fall of 2008 with Barack Obama and John McCain battling for the presidency, Republicans and Democrats in the House and Senate came together to pass the Americans with Disabilities Act Amendments Act. The remarkable support for the legislation is reflected by the vote in the House of Representatives, which passed the legislation by a margin of 402 to 17, and the vote in the Senate, which approved the legislation by unanimous consent. On September 25, 2008, a little over 18 years after his father signed the original Americans with Disabilities Act of 1990, President George W. Bush signed the ADAAA into law.
Impact of the ADA in Opening Doors
With the enactment of the ADAAAA, which took effect on January 1, 2009, the Americans with Disabilities Act now has the teeth to ensure that legal protections are accorded to the disabled community. Whether the ADA, as amended, actually will accomplish the goal of bringing individuals with disabilities into the mainstream of society, however, still remains to be seen.
Supporters of the ADA argue that multiple indicators demonstrate marked improvements in the social inclusion and participation of people with disabilities throughout the United States. Still, the employment of persons with disabilities remains far below that of persons without disabilities. Indeed, numerous studies have concluded that since the ADA’s passage, the employment rate for persons with disabilities actually has declined. There is no evidence that this decline in employment is attributable directly to the passage of the ADA and the creation of legal protections for persons with disabilities. Instead, it is more likely a reflection of the deep structural barriers – such as the lack of personal assistant services, assistive technology, accessible transportation and adequate healthcare – that keep persons with disabilities out of the workforce.
Anti-discrimination laws, such as the ADA, can prohibit employers from discriminating against qualified people with disabilities who apply for jobs, but without sufficient social welfare strategies to address the structural barriers to the employment of the disabled, the hoped for goals of expanding employment opportunities and bringing individuals with disabilities into society’s mainstream will remain unfulfilled. The ADA addresses one aspect of the problem – the discriminatory and paternalistic attitudes that have kept individuals with disabilities “hidden” for too many years – but, the statute is only part of the solution. The other part is the elimination of the basic structural barriers to the employment of disabled persons.
Thus, the question remains as to whether another remarkable coalition across the political spectrum will come together to address the entrenched structural barriers hindering the movement of persons with disabilities into the American workforce. Let’s hope that a positive answer to this question will not need to await the ADA’s 40th birthday in July, 2030.
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