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Equality of Opportunity: The Making of the Americans with Disabilities Act

Phase I: Education and Labor Committee

The Education and Labor Committee conducted the most thorough evaluation of the bill, at least with respect to the volume of testimony received. Two subcommittees had jurisdiction over the bill: Select Education, chaired by Congressman Owens, and Employment Opportunities, chaired by Matthew G. Martinez (D-CA). In the interest of facilitating rapid consideration of the ADA, Owens negotiated with Martinez to have Employment Opportunities yield to Owens’s Select Education Subcommittee. Moreover, Congressman Hawkins, Chairman of the full committee, essentially deferred to Owens for leading the committee’s consideration. In addition to the two hearings held in 1988, the Subcommittee on Select Education hosted four hearings between July 18 and October 6, 1989, two of which were joint hearings with the Employment Opportunities Subcommittee.

Perhaps the most significant of the four hearings was the field hearing of the Subcommittee on Select Education held on August 28, in Houston, Texas. Lex Frieden and Justin Dart had recommended such a hearing to Congressman Owens due to concerns that Congressman Bartlett might not be fully supportive of the ADA because of his close associations with such business groups as NFIB. Owens approved of the idea and enjoyed playing the role of bringing the U.S. Congress to local communities. The purpose of the field hearing was to demonstrate to Bartlett that his own constituents strongly supported the ADA. Hundreds of persons with disabilities attended the hearing and an open forum that followed. At the hearing, businessmen, government officials, and transit authorities gave a ringing endorsement to the ADA. And dozens of people with disabilities spoke about their personal experiences at the forum. The proceedings appeared to have a significant impact on Bartlett. Later that evening, he told Frieden and others that he had been “kind of a skeptic” of the ADA. But the day of discussions “made me a believer,” and he pledged to do what he could to support the legislation.58

Congressman Owens welcomed Hoyer as the leader in committee negotiations, because it gave Owens an opportunity to be a “Watch Dog” for the disability community.

Contrary to the typical committee process, where staff settle most disagreements following the hearings, negotiations for the Committee on Education and Labor were led by Congressmen Hoyer and Bartlett in a lengthy series of member-to-member meetings. This was also a unique circumstance because Hoyer was not even on the committee. Although Chairman Hawkins could have exercised his authority over the full committee, he “graciously,” as Ralph Neas described it, allowed Hoyer to take the lead. This gave Hoyer, the House manager of the ADA, an opportunity to set the tone for the rest of the House deliberations. Congressman Owens welcomed Hoyer as the leader of committee negotiations, because it gave Owens an opportunity to be a “Watch Dog” for the disability community: he could help ensure that negotiations did not result in a net loss for people with disabilities.59

Congressmen Hoyer and Bartlett represented different parties and different clientele—Hoyer spoke mostly on behalf of Democrats and the disability community, Bartlett mostly on behalf of Republicans and the business community. But they shared enough in common to produce extraordinarily productive negotiations.60 Bartlett wanted to foster business development. His position as Republican point man was to prepare a bill that could gain the support of Republicans and the business community. Hoyer shared similar goals. As Schulman explained: “we weren’t interested in creating a new right and doing it in such a way that it would have been impossible for the private sector, for employers and businesses, to meet their responsibilities."61 Rather, in meeting the needs of persons with disabilities, Hoyer wanted to ensure that businesses knew what was expected of them, that language was clear and fair, and that the bill did not impose an undue burden on business.62 By working together, the two congressmen were able to help craft legislation that would be acceptable to both sides of the aisle and foster a level of bipartisanship comparable to what had developed in the Senate. The meetings were “the most productive and satisfying legislative negotiations that I had ever been involved with,” said Bartlett.63

Congressman Hoyer spoke mostly on behalf of Democrats and the disability community, Congressman Bartlett mostly on behalf of Republicans and the business community. But they shared enough in common to produce extraordinarily productive negotiations.

Throughout October, Congressmen Hoyer and Bartlett met extensively and negotiated fourteen amendments that would later be brought up for a vote in committee. Although the committee had jurisdiction mainly over portions of the Employment and Public Accommodations titles, some of their proposed amendments affected the entire bill. The most significant amendment concerned the application of “undue hardship” and “readily achievable.” Business lobbyists wanted precise dollar figures to determine exactly how much businesses had to spend on accommodations and modifications. Rather than offer a price cap, the Senate bill specified that three factors should be evaluated in determining whether an accommodation was “reasonable” or a structural modification was “readily achievable”—the size of a business, the type of operation, and the cost of the accommodation. Although this provision fell mainly under the jurisdiction of the Judiciary Committee, and was ultimately settled there, Hoyer and Bartlett began discussions about “site-specific” factors.64 They suggested that in determining whether an accommodation was “reasonable” a court should consider the financial resources of the local facility as well as those of the entire covered entity. Thus, a local K-Mart in financial difficulty would not be evaluated only according to the resources of the entire K-Mart corporation. Hoyer and Bartlett also clarified that an employer’s obligation to provide a reasonable accommodation was always limited by the standard of “undue hardship”: there would be no loopholes.

Congressmen Hoyer and Bartlett addressed another persistent concern of employers by adding tougher language for drug and alcohol abuse. They agreed that past drug users who had completed, or were actively engaged in, drug rehabilitation treatment were protected under the ADA. They also decided that covered entities should be free to administer drug tests and exclude individuals who used drugs and had not sought treatment.

The meetings with Congressman Steny Hoyer were “the most productive and satisfying legislative negotiations that I had ever been involved with.” —Congressman Steve Bartlett

Congressmen Hoyer and Bartlett also worked to help minimize the potential for excessive litigation. They added language requiring that all complaints filed under the ADA or Sections 503 and 504 of the Rehabilitation Act must be coordinated so that only one case could be brought against the covered entity; a claimant could not file two claims under two different statutes. They also developed a procedure whereby the attorney general could certify state or local building codes that met ADA accessibility standards, which would be a defense against discrimination charges. In cases where the attorney general exercised authority to pursue monetary damages for aggrieved persons, the two congressmen proposed to exclude punitive damages. They also suggested that when courts considered assessing civil penalties, they must consider the “good faith” efforts of the covered entity. Finally, Congressmen Bartlett and Hoyer incorporated into the bill requirements that executive agencies prepare technical assistance manuals to be disseminated to those with rights and responsibilities under the ADA.

These changes were brought before, and approved by, members of the Committee on Education and Labor at the mark-up sessions on November 9 and 16. Eight additional amendments came up for consideration.65 Among other things, these amendments would have:

  • linked the determination of reasonableness for accommodations and modifications exclusively to the resources of a local facility;

  • reduced the penalties the attorney general could assess;

  • substituted “significant risk” for “direct threat” as the standard according to which persons with contagious diseases could be discriminated against;

  • capped the amount a business had to spend on “readily achievable” modifications to 5 percent of a company’s profits;

  • delayed implementation until regulations were completed; and,

  • limited nondiscrimination protection for association with someone who had AIDS to one’s family members.†

Except for the package of amendments introduced by Congressmen Hoyer and Bartlett, all amendments introduced at the committee mark-up were voted down, predominantly along party lines. The Democratic position was a “no” vote on all amendments besides the Hoyer-Bartlett package.66 In the final vote, the committee voted unanimously, 35 to 0, to report H.R. 2273 to the House, as amended by the committee. Despite the contested amendments, this was another strong endorsement of the ADA, and gave the bill a boost similar to that given by the Senate vote. Tough battles lay ahead. But the Hoyer-Bartlett compromises positioned the ADA for future success, and Hoyer and Bartlett would continue to play central roles in the negotiations of other committees.

† According to the ADA, an individual is protected not only from discrimination because of having a disability but also from discrimination based on being associated with a person with a disability. Thus, one could not be fired because one’s spouse had a disability such as AIDS. This amendment would have restricted the types of associations that were protected by the ADA to biological and legal relationships. As a result, one would not have been protected by the ADA if discriminated against because a friend had AIDS.

58. Quotation attributed to Steve Bartlett by Lex Frieden. Lex Frieden, interview, December 28, 1996.

59. Major Owens, interview, April 29, 1997.

60. Feldblum, interview, March 14, 1997.

61. Schulman, interview, December 6, 1997.

62. Schulman, interview, December 6, 1997.

63. Bartlett, interview.

64. Maria Cuprill, telephone conversation with author, May 15, 1997.

65. Two more amendments were proposed but withdrawn.

66. Five amendments received roll call votes. Two fell strictly along party lines. On one amendment, one member from each party switched sides. In the remaining two votes Republicans accounted for all but one “aye” vote, and some Republicans voted no.

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