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

Phase III: Judiciary Committee

After surviving review by the first three committees—Education and Labor, Energy and Commerce, and Public Works and Transportation—the ADA’s final committee hurdle was the Judiciary Committee. This final phase of the House committee process was also a symbolic one: the last chance for opponents of the bill to offer unrestricted amendments. Once the bill went to the House floor, the Rules Committee would allow only certain amendments for consideration. Similar to the Education and Labor Committee, where Subcommittee Chairman Major Owens effectively led the committee’s deliberations, Don Edwards (D-CA), Chairman of the Subcommittee on Civil and Constitutional Rights, essentially took the lead in the Judiciary Committee’s consideration of the ADA. Moreover, as with the Education and Labor Committee, Congressman Hoyer played a central role in shaping the Judiciary Committee’s negotiations and Congressman Bartlett continued to represent the Republican party.

The Judiciary Committee held three hearings, on August 3, October 11, and October 12, 1989. The Subcommittee on Civil and Constitutional Rights met for mark-up on April 25, 1990. The full committee held mark-up sessions on May 1 and 2, at which time it reported the ADA favorably to the House, as amended.

One of the hottest issues for the Judiciary Committee, which had jurisdiction over portions of the employment and public accommodations titles, was remedies. Prior to the Judiciary Committee’s consideration of the ADA, the Senate and the White House had reached a breakthrough compromise on the issue of remedies: the Senate agreed to restrict available employment and public accommodations remedies to those in the Civil Rights Act, which omitted punitive damages. As a result of this agreement, the Education and Labor Committee never even considered changing the available remedies. A crucial development during the Judiciary Committee’s deliberations, however, made them a live issue once again.

On February 7, 1990, Senator Kennedy and Congressman Hawkins introduced the Civil Rights Act of 1990. This bill amended the Civil Rights Act of 1964 by allowing courts to award compensatory and punitive damages at jury trials, to persons who successfully proved they were victims of discrimination. Because the ADA merely incorporated the remedies of the Civil Rights Act by reference, this proposed change to the Civil Rights Act would also apply to the ADA. Representatives from the disability community contended that this was consistent with earlier agreements with the White House, that the principle all along had been parity with the Civil Rights Act of 1964, regardless of whether those provisions were strengthened or weakened over time.

The Bush administration, however, felt betrayed and argued that their negotiated agreement expressly excluded punitive damages from the bill. On March 12, The Washington Post reported rumors that President Bush might withdraw his endorsement of the bill if the ADA did not expressly limit its remedial provisions to injunctive relief, reinstatement, and back pay. That same night, Attorney General Richard Thornburgh wrote a letter to Congressman Steny Hoyer. He said the administration opposed the link to the Civil Rights Act of 1964 and proposed that the conflict be resolved by specifying the current standards of the Act.⁷⁹

When the committee introduced an amended version of the ADA to the Subcommittee on Civil and Constitutional Rights on April 25, it sided with the disability community and retained the cross reference to the Civil Rights Act of 1964. Congressman F. James Sensenbrenner, Jr. (R-WI), however, introduced an amendment to eliminate the reference. Some people with disabilities suggested giving up on the remedies issue in order to save the rest of the bill, but the disability community generally lobbied vigorously to oppose this and all other “weakening amendments.” To the relief of disability activists, the Sensenbrenner amendment failed. Sensenbrenner tried to pass the amendment a second time when the full committee met on May 1 and 2, but it was voted down again. In its report on the bill, the Judiciary Committee argued that the Sensenbrenner amendment was “antithetical” to the very nature of the ADA. It also referred directly to the Civil rights Act of 1990 and stated that any changes there would be applied to the ADA.⁸⁰ Sensenbrenner joined five colleagues in authoring “Additional Views” for the report, where they continued to insist on the need for the Sensenbrenner amendment. They also cryptically threatened that a failure to pass it might jeopardize the entire ADA.⁸¹

The most significant contribution of the Judiciary Committee concerned “site specific” factors for the determination of “reasonable accommodation” and “readily achievable”. Discussions on the topic had begun in earnest between Congressmen Hoyer and Bartlett during the Education and Labor Committee’s deliberations and continued throughout the House deliberations. For the most part, the Judiciary Committee introduced the same changes proposed by the Education and Labor Committee. But the Judiciary Committee rearranged the factors for clarity and for different emphasis. It was primarily concerned with avoiding a determination that sided either with the local facility or the covered entity. Rather, the committee stressed that, on a case-by-case and flexible basis, both entities should be evaluated. Moreover, it emphasized that the relationship between the parent company and the local facility should be taken into consideration.

The committee made many other changes, most of which were technicalities compared with earlier, more sweeping compromises. In addition to clarifying the cross-referencing on remedies and site-specific factors, the Judiciary Committee added a new section to the bill that encouraged alternative dispute resolution through reconciliation before moving to litigation. And it made technical changes to the interim standards of accessibility. The final amendment accepted by the Judiciary Committee was a package of six amendments introduced by Congressman Fish, based on negotiations that included the disability community, the White House, and Congressmen Hoyer and Bartlett. Essentially, three of the amendments came from the disability community, and three from the administration. For the administration, the committee added language clarifying: the meaning of “direct threat,” the standards by which “anticipatory discrimination” were valid, and that an employer’s view of what constituted “essential functions” would be considered by courts. For the disability community, the package included clarification about which entities were covered in the public accommodations title and what was meant by “commercial facilities.” It also provided that places where exams were administered had to be accessible.⁸²

Additional amendments were introduced, but they failed. Two of these failed amendments—a proposal to cap an employer’s obligation to provide accommodations at 10 percent of an employee’s salary, and a proposal to enable employers to remove persons with contagious diseases, such as AIDS, from food handling positions—would reemerge on the House floor. On May 2, the Judiciary Committee concluded its deliberations by favorably reporting its version of the ADA to the full House.

79. Richard Thornburgh to Hamilton Fish, March 12, 1990, printed in Cong. Rec., vol. 136 (May 22, 1990), p. H2613.

80. House Committee on the Judiciary, Americans with Disabilities Act of 1990: Report together with Additional and Dissenting Views, 101st Cong., 2nd sess., Rept. 101-485, Pt. 3, May 15, 1990, reprinted in Leg. Hist., p. 488.

81. “Additional Views of Hon. F. James Sensenbrenner, Jr., Hon. Bill McCollum, Hon. George W. Gekas, Hon. William E. Dannemeyer, Hon. Lamar S. Smith, and Hon. Craig T. James,” in ibid., pp. 528–31.

82. Feldblum, interview, March 14, 1997.