Master Strategy and the Retooling of the ADA
Senator Harkin took the lead in preparing the ADA for reintroduction. Success depended on developing a solid strategy for maneuvering the bill through the treacherous terrain of Congress. It also required attaining the complete backing of the disability community.5 Harkin’s first step was to establish an effective relationship with Senator Edward M. Kennedy (D-MA) and Carolyn Osolinik and Michael Iskowitz from Kennedy’s committee staff. This was important because a bill successfully voted out of Harkin’s Subcommittee on the Handicapped would have to clear Kennedy’s Committee on Labor and Human Resources. Coordination of all legislative activities with Kennedy could improve the possibility of a smooth and quick transition to the Senate floor. The disability community was also courting the support of Kennedy. They hoped his stature as a “heavy hitter” senator with seniority could match the standing of Senator Weicker and augment the efforts of Harkin.6 Kennedy brought the experience of decades of civil rights leadership. Osolinik, whom Pat Wright described as “one of few people who really saw disability as a civil rights issue,” directed civil rights issues in Kennedy’s office. Moreover, Kennedy had personal experiences with disability through his son who lost a leg to cancer and a sister with a developmental disability. Kennedy’s support, however, depended on making significant changes to the ADA.7
Senators Harkin and Kennedy concluded that the bill introduced in 1988 was too ambitious and stood little chance for passage. Therefore, they decided to rewrite the ADA. In accordance with the objectives of the disability community, the senators’ primary goal was to achieve the best possible civil rights coverage for persons with disabilities. Toward this end, they and their staffs, in consultation with leaders from the disability community, developed a four-pronged legislative strategy.
First, Senators Kennedy and Harkin made a commitment to achieving bipartisanship. They believed that the ultimate goal of legislation must not simply be to pass a bill, but rather to make an enforceable law. For the bill to be taken seriously, it needed to be widely supported by the business community as well as the disability community, Republicans and Democrats, the Senate and the House, and the Bush administration. Second, Senators Harkin and Kennedy wanted to craft a bill that could withstand the strict scrutiny of Congress. Rather than introduce a bill with aggressive provisions and rely on subsequent negotiations, which ran the risk of permanently labeling the bill “extreme,” they hoped to hold extensive discussions and reach important compromises before they even introduced the bill.
The third and fourth strategic commitments followed logically: modesty and parity. The original ADA applied rigorous and rigid standards of accessibility that would be implemented immediately. Senators Kennedy and Harkin instead promoted accessibility at some point in time, and varied provisions according to specific circumstances. While the bill’s complete effect would not be apparent immediately following its enactment, the American landscape would be transformed for subsequent generations. Finally, in crafting the actual language of the bill, Silverstein and Osolinik worked with the disability community to build the ADA securely on the foundation of earlier legislation—especially on the Civil Rights Act, Section 504 of the Rehabilitation Act, and the Fair Housing Amendments Act. Proponents could therefore argue that the bill was an application of tested principles, not a new creation.
With this strategy in place, Osolinik and Silverstein began 1989 by reviewing the bill line by line. Redrafting the ADA was not, however, a solitary endeavor. After developing their own preliminary ideas about what provisions should constitute a new bill, Silverstein and Osolinik turned to others to identify interests in and reservations about the bill, including the disability community, all “covered entities,”* the Bush administration, and members of Congress and their staffs. The principal House contacts were Congressman Tony Coelho (D-CA) and Rochelle Dornatt from his staff. Especially helpful from the business community was Nancy Reed Fulco of the U.S. Chamber of Commerce. Osolinik and Silverstein worked most closely, however, with a group of representatives from the disability community. In addition to the general guidance provided by Pat Wright, Ralph Neas, Liz Savage, and Paul Marchand, Silverstein and Osolinik received technical expertise from attorneys Arlene Mayerson, Chai Feldblum, Robert Burgdorf, Jim Weisman, and others according to specialties. By retooling the bill in close cooperation with this group, Osolinik and Silverstein hoped to earn the backing of the disability community. Then they could present a united front as the bill went through Congress.
From January to March, 1989, Silverstein and Osolinik produced scores of different drafts of the ADA. By March 15 they completed a draft (S. 933), which they circulated privately to representatives of the disability community, the Bush administration, and several members of Congress. The bill duplicated the findings and purpose of the original bill (S. 2345) crafted by NCD. It also covered the same main areas, with the exception of housing (which had been addressed by the Fair Housing Amendments Act). S. 933 even incorporated some language of S. 2345 verbatim. But there were marked distinctions.
The new bill, S. 933, demonstrated the commitment to modesty and flexibility in standards by tailoring definitions, provisions, and enforcement to four main titles— Employment, Public Services, Public Accommodations, and Telecommunications.† The dedication to legal precedent was also clear. S. 933, for example, incorporated more than five times as many references to earlier statutes. There was also a difference in tone. Whereas the original bill, S. 2345, emphasized discriminatory practices that should not be tolerated—for example, providing unequal services— S. 933 spelled out positive, proactive steps that must be taken to meet nondiscriminatory standards. Several major revisions are worth noting.
One of the most contested aspects of the ADA was the definition of disability. People asked: Who would be protected by the ADA? It was a difficult question because one cannot readily identify disability with the same precision that one can identify, for example, race and gender. It would also be impractical to name, in a statute, each and every type of disability. This would be cumbersome, if not impossible, and require constant adjustment for future, unknown impairments. The challenge, therefore, was to find a definition that was at once inclusive enough to cover diverse disabilities, but not so universal that anyone could claim protection by the ADA. Under the original bill, S. 2345, a disability was defined as “a physical or mental impairment, perceived impairment, or a record of impairment."8 This definition was similar to the three-pronged definition implemented under Section 504, except that it did not limit the first prong to impairments that “substantially limit” major life activities. This meant that anyone with “any physiological disorder or condition, cosmetic disfigurement, or anatomical loss” or “any mental or psychological disorder” was covered.9 Osolinik and Silverstein instead used the Section 504 standard and restricted the first prong to “a physical or mental impairment that substantially limits one or more of the major life activities”—such as seeing, walking, self-care, and learning.10 This meant that a physical impairment such as an infected finger would not constitute a disability.
The most controversial issue in the redrafting stage was the cost and burden imposed upon covered entities.11 Legislative endeavors of the 1980s successfully established that, in the area of disability civil rights, equal treatment was not enough. The goal had to be equal opportunity.12 That required modifying policies, providing services, and breaking down barriers: “reasonable accommodations”.13 In other words, it was not enough simply to leave the door open, the door also had to be widened. And this meant that civil rights for persons with disabilities could cost money. But at what point does providing “equal opportunity” become an “unreasonable” burden?
Under S. 2345, the only defensible limits to providing accommodations were actions that “would fundamentally alter the essential nature, or threaten the existence of, the program, activity, business, or facility in question."14 Although Burgdorf wrote the provision to assure that compliance would not mean shutting down a business, it came to be known pejoratively as the “bankruptcy” provision: interpreted to mean that a business would have to go to the brink of bankruptcy before it could defend against charges of discrimination.15 S. 933, on the other hand, followed Section 504 in using “undue hardship” as the standard for determining whether employment accommodations were “reasonable.” Undue hardship meant “an action that is unduly costly, extensive, substantial, disruptive, or that will fundamentally alter the nature of the program."16 It was not a fixed concept, but rather varied on a case-by-case basis, according to such factors as the size of the business, the type of operation, and the nature and cost of the accommodation.
Concern for cost shaped the new approach to barrier removal. S. 2345 required the retrofitting of all public transportation vehicles and facilities to make them accessible. S. 933, on the other hand, varied its demands according to whether vehicles and facilities were newly constructed or already in operation. The general principle was that all new vehicles and transportation facilities would have to be “readily accessible to and usable by individuals with disabilities”.17 For used vehicles, transportation operators had to make “good faith efforts” to find accessible vehicles. If a company remanufactured a vehicle to extend its life for at least five years, it had to be made readily accessible to “the maximum extent feasible.” With regard to existing facilities, S. 933 required only that certain “key stations” had to be retrofitted for accessibility.
The approach in S. 933 to barrier removal in public accommodations paralleled the transportation provisions. The original bill, S. 2345, required that nearly every place of public accommodation had to remove all barriers within five years. This provision earned S. 2345 the nickname of the “flat earth” bill. Drafters of S. 933, however, dispensed with the idea of wholesale retrofitting. Instead they required that all new construction be accessible. Nevertheless, they did not want to leave existing structures untouched. Consequently, drafters created a new legal term. S. 933 required that businesses make changes to existing structures where accessibility was “readily achievable,” which was eventually defined to mean “easily accomplishable and able to be carried out without much difficulty or expense."18 The goal was to create a mind-set of accessibility, to encourage people to look for creative ways to make the world more accessible. “Readily achievable” modifications might include installing grab bars, ramping a few steps, lowering telephones, adding raised letter and braille markings on elevator controls, and adding flashing alarm lights.
S. 933 also required that where structural changes were not readily achievable, covered entities had to make their services available through alternative methods: for example, coming to the doorway of a Laundromat to pick up laundry when a person could not get inside. Moreover, the bill required the provision of “auxiliary aids and services” to persons with disabilities: for example, reading a menu to persons with visual impairments so that they could fully enjoy the benefits of places of public accommodation.
The version of the ADA crafted by Senators Harkin and Kennedy did not only limit initial provisions. In one significant area they significantly expanded the scope of the original bill. Under S. 2345, only those public accommodations covered under the Civil Rights Act of 1964 had to be accessible. This principally meant places of lodging, eating, and entertainment. Service establishments such as doctors’ offices, retail stores, and private clubs, were not included. S. 933, by contrast, defined within its scope virtually every privately-operated establishment that was used by the general public and affected commerce. This included places of lodging, office buildings, parks, recreation facilities, theaters, retail stores, medical facilities, and restaurants. Although this apparently broke the commitment to parity with the Civil Rights Act, advocates argued that it was consistent in spirit: just as the Civil Rights Act addressed the universe where race discrimination was an issue, the ADA covered the broader universe where disability discrimination was relevant.
The new draft of the ADA also took steps to define the original ADA’s prohibition of discrimination in “broadcasts, communications, or telecommunications.” S. 933 required that communications providers implement telecommunication relay services. A relay service enabled an individual using a Telecommunication Device for the Deaf (TDD)—a machine that transmits typed data over telephone lines—to communicate with someone without such a device, through an operator who would translate text to voice, and voice to text.
Another significant change from S. 2345 concerned legal actions available to remedy discrimination. S. 2345 included both administrative and civil remedies.‡ It granted administrative agencies the authority to order “all appropriate remedial relief"19 and gave individuals the right to sue in a district court for both injunctive relief and monetary damages, including punitive damages.§ Drafters of S. 933, however, viewed these remedial provisions as extreme and politically impossible. Therefore they introduced remedies tailored to each title. Only administrative remedies were available for the public accommodations and telecommunications provisions. Private right to action was granted for employment and public services provisions. For employment discrimination, S. 933 also allowed for punitive damages.
*“Covered entity,” as defined in § 101(2) of the final version of the ADA, means “an employer, employment agency, labor organization, or joint labor management committee.” For the purpose of this work, however, “covered entities” is defined more broadly to mean any entity covered by any portion of the ADA. This would include, for example, employers, operators of public transit, owners of places of public accommodation, and communications providers.
† The bill introduced on May 9 had two more titles in addition to the four main titles. Title I, later deleted in the course of negotiations, included general provisions that applied to most covered entities. Title VI (which became Title V after the deletion of Title I) contained miscellaneous provisions.
‡ Administrative remedies refer to actions taken by the government to enforce regulations. Civil remedies refer to private claims filed in a district court, which can include monetary compensation.
§ Injunctive relief refers to putting an end to the discrimination, which could include reinstatement to a job or an order to remove a physical barrier. Monetary damages can include back pay or any other expenses incurred as a result of the discrimination. Punitive damages are a penalty for discrimination, that can include awards for “pain and suffering” that surpass any actual financial loss.
5. The following discussion on Congressional strategy development is based on Robert Silverstein, interviews, August 30, 1993 and October 31, 1996; Carolyn Osolinik, interview, November 25, 1996; and Chai Feldblum, interview, January 13, 1997.
6. Osolinik, interview, November 25, 1996.
7. Pat Wright, telephone conversation with author, April 30, 1997.
8. ADA of 1988, § 3(1).
9. Ibid., § 3(2).
10. ADA of 1989, § 3(2).
11. Silverstein, interview, October 31, 1996.
12. Arlene Mayerson, interview, October 13, 1993.
13. ADA of 1989, § 202(b)(1).
14. ADA of 1988, § 7(a)(1).
15. Robert Burgdorf, interview, February 19, 1997.
16. ADA of 1989, § 202(b)(1).
17. Ibid., § 303(b)(1), § 303(e).
18. ADA of 1989 (October 16, 1989), § 301(5)(A).
19. ADA of 1988, § 9(a)(2).
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