The ADA and the House Committees: Three Phases
Part of the master strategy for passing the ADA involved organizing the committee deliberations in the House. Leading ADA supporters among Democrats, including Congressmen Coelho, Hoyer, and Owens, wanted to start the bill in a committee that was familiar with and favorable to civil rights. In consultation with each of the committee Chairs—Augustus F. Hawkins (D-CA), for Education and Labor; John D. Dingell (D-MI), for Energy and Commerce; Glenn M. Anderson (D-CA), for Public Works and Transportation; and Jack Brooks (D-TX), for Judiciary— they decided to begin with Education and Labor. Several factors made this a logical choice. First, most of its Democratic members supported disability rights. Second, Democratic leadership included Congressman Owens, Chairman of the Subcommittee on Select Education, who had created the Task Force on the Rights and Empowerment of People with Disabilities and was a strong advocate of civil rights and grass roots activism. Third, the ranking Republican for the Subcommittee on Select Education was Congressman Bartlett, who had a strong record on disability policy and was instrumental in shaping the mission of NCD. Bartlett, in fact, urged Republicans on other committees to promote letting Education and Labor go first. Fourth, Pat Morrisey, a leading Republican staff member, had also worked extensively with disability policy and, in addition, had a disability.56 Ideally, the Education and Labor Committee would complete its review of the ADA as a starting point for the rest of the committees.
Although committees operate differently, they tend to follow a similar process of deliberation. The committee chair and committee members give overall guidance to their staff regarding what they would desire to achieve. Then, hearings are scheduled, designed, and held. The purpose of hearings is to solicit justification and document the need for the bill, as well as to hear and discuss reservations about the bill. As much as possible, staff try to settle issues raised by the hearings on their own, which is generally the vast majority of a given bill. For issues that remain unresolved, however, there is a ladder of conflict resolution. Usually, the first step the staff take is to prepare memos for their congressmen about the issues in dispute and then obtain the member’s feedback, which can be used in negotiations. If this proves inadequate, members meet directly with one another. Finally, issues that members cannot settle get carried to committee mark-up sessions where they can be introduced as amendments for member voting. Typically, mark-up sessions begin with the consideration of one collective amendment that incorporates all the agreed upon changes. Then, members proceed to discuss and vote upon individual amendments concerning the disputed issues.57
Although the activities of all four committees often overlapped, there were three distinguishable phases in the committees’ review process. Deliberations by the Education and Labor Committee marked the first phase. A focus on transportation provisions by two committees, the Energy and Commerce Committee and the Public Works and Transportation Committee, constituted the second phase. Activities by the Judiciary committee represented the third and final phase before moving the deliberations to the House floor.
56. Neas, interview, January 21, 1994.
57. Roger Slagle, interview, December 2, 1996.
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
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
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.
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.
Phase II: Energy and Commerce & Public Works and Transportation Committees
Although the Committee on Education and Labor reached a significant compromise that drew the support of many members, it accomplished little with respect to transportation and telecommunications provisions. These responsibilities fell to two committees: Energy and Commerce, and Public Works and Transportation. Their deliberations constituted the second phase of the House process of committee review.
From the beginning of the ADA campaign, advocates worried most about the transportation provisions. Transit authorities had historically posed vigorous challenges to accessibility for persons with disabilities. When the Department of Transportation issued its original Section 504 regulations, APTA responded with a lawsuit—and won. The court ruled that requiring lifts on every bus went beyond the purview of Section 504 and left it up to transit authorities to decide whether to have accessible buses, provide paratransit service, or use a mixture. As a result of this so called “local option,” transportation operators throughout the country provided widely varying levels of accessible transportation. Cities such as New York and Seattle had achieved nearly 100 percent accessible buses, while Chicago had virtually none. Railroad systems had other problems. Accessibility standards for Amtrak, for example, had been in effect for nearly two decades; the regulations simply were not being enforced. By proposing fully accessible public transportation vehicles, the ADA would thus face resistance from such powerful lobbying groups as the ABA, Greyhound, Amtrak, and APTA.
Working the transportation provisions of the ADA through the committee was also challenging because the scope was so broad. The ADA covered all public transportation by both public and private entities, with the exception of air travel, which had been addressed in the Air Carriers Access Act. This included: fixed route systems‡ (including buses, light and rapid rail§), paratransit service** (which applied only to public entities), demand responsive systems,†† intercity rail,‡‡ commuter rail,§§ over-the-road buses*** (which applied only to private entities), and transportation facilities. To avoid presenting executive agencies with any ambiguity, the transportation committees prepared extraordinarily detailed provisions. Given the memory of the regulatory nightmare of Section 504, where lack of detail in the statute resulted in intense conflict over the regulations, many people in the disability community welcomed the specificity promoted by the transportation committees. Although the two transportation committees upheld the basic principles of the Senate bill, they made the most changes—nearly tripling the amount of space dedicated to transportation provisions.
The two committees operated simultaneously, but the Energy and Commerce Committee was the first to complete its review. It held its hearings on September 27 and 28, 1989 and met for mark-up six months later on March 13, 1990, at which time it reported the ADA, as amended, to the House. The ADA’s fate in the transportation committees was largely a function of personalities. Working with the Energy and Commerce Committee was difficult for the disability community. Chairman Dingell was notorious for jealously guarding his committee’s jurisdiction, and he was one of Amtrak’s greatest advocates. Over the course of the 1980s, funding for Amtrak had plummeted, and Dingell was reluctant to impose any new demands on the struggling public service. This made for a much different dynamic than the other three House committees, where Democrats generally sided with disability advocates to prevent any “weakening” amendments. In this case, Democrats tended to side with the public rail company and were thus more skeptical of the ADA’s objectives. The principal staff person for the Energy and Commerce Committee was Alan Roth. By the end of the process he became a hero of sorts for the disability community, but in the beginning Roth posed a great challenge. He thought things had happened too quickly in the Senate, where there was little expert review of transportation provisions, and he wanted to conduct a thorough review of the bill’s provisions within his committee’s jurisdiction. This had the effect of extending the deliberative process.
Unlike the Education and Labor Committee, and its open negotiations, the Energy and Commerce Committee began its consideration privately, without consulting the disability community. The relationship between disability advocates and the committee was not improved when Pat Wright and Ralph Neas worked with Michigan constituents to apply pressure on the Chairman. It was not until the committee circulated a draft of its own version of the bill, which invited a 30-page rebuttal from the outraged disability community, that Congressman Hoyer could persuade the committee to work with him in developing a bill that the disability community could support.67
Although the Energy and Commerce Committee could introduce amendments that affected the entire bill, its jurisdiction over the ADA centered on two main components: telecommunications and railroads. Telecommunications provisions were the least controversial of the ADA’s four main titles. Karen Peltz-Strauss and Sy Dubow were the principal attorneys from the deaf community who worked with congressional staff. The National Association of the Deaf (NAD), Telecommunications for the Deaf, Inc., and Self-Help for the Hard of Hearing (SHHH) were active in demonstrating broad support for changes in the nation’s telecommunications system. Peltz-Strauss described Congressman Edward J. Markey (D-MA), Chairman of the Subcommittee on Telecommunications and Finance, as the deaf community’s “chief advocate” in the House. He was “very interested in expanding telecommunications access for people with disabilities."68 This made for “smooth and harmonious” deliberations, as Congressman Bob Whittaker (R-KS) later described them.69 “There was striking cooperation among industry, commerce, and Congress,” said Peltz-Strauss, which produced provisions “that met the needs of people who were deaf and hard of hearing."70
Historically, three of the main telecommunications issues for the deaf and hard of hearing were hearing-aid compatibility, teletype devices, and television decoding. During the 1980s, the deaf community succeeded in passing legislation that required employers to provide hearing-aid compatible telephones, which were equipped to transmit electromagnetic signals to certain hearing aids. In 1988, the Hearing Aid Compatibility (HAC) Act expanded this requirement such that nearly all telephones manufactured or imported into the country had to be compatible. The issue the ADA addressed most directly were teletype (TTY) devices, often called a Telecommunication Device for the Deaf (TDD). Under the original bill introduced to the House and Senate, the ADA required states to establish telecommunications relay services that would allow people to communicate, through an operator, with people who did not have TTY devices. During House deliberations, the basic requirement was affirmed, though the implementation date was extended from two to three years. The most significant change was the removal of the “undue burden” limit on the mandate to provide relay service. The committee also addressed the issue of closed captioning for televisions. Earlier legislation required public television to broadcast with closed captioning. During the House deliberations, Congressman Markey’s subcommittee stipulated that all public service announcements partly- or fully-funded by the Federal Government must be produced with closed captioned text.
The Subcommittee on Telecommunications and Finance was the first of all House subcommittees to complete its action, on October 12, 1989. Subsequently, the Energy and Commerce Committee devoted several months to deliberating transportation provisions. The committee held the preponderance of jurisdiction over railroads and had absolute jurisdiction over Amtrak. It began its deliberations with the Senate bill, which required that all new rail cars had to be accessible, and mandated that at least one car per train had to be accessible within five years. Since Amtrak was standardized throughout the nation, the committee could be extraordinarily detailed about what accessibility meant for Amtrak. For example, the committee delineated distinctions between single- and bi-level cars. It also designed separate provisions for sleeping, dining, and passenger cars. For Amtrak, the Energy and Commerce Committee even developed a formula to determine precisely how many spaces had to be available for persons using wheelchairs, including space to store wheelchairs. Perhaps the most important decision coming out of this committee, however, was that it sustained the Senate’s one-car-per-train rule and the stipulation that all new cars had to be accessible. This was significant because the Public Works and Transportation Committee shared partial jurisdiction over railroads, and wrestled with whether all cars had to be accessible.
Although negotiating over transportation provisions was difficult, the most controversial and intense negotiations in the Energy and Commerce Committee had nothing to do with structural transportation accessibility. Members of the Energy and Commerce Committee were concerned that the ADA’s protection of persons who were mentally ill could result in uncontrollable train disturbances, where train operators would be unable to ask meddlesome riders to leave. Consequently, their initial draft of the ADA excluded persons who were mentally ill from the definition of disability. This caused an uproar in the disability community. “Persons with mental disabilities, among all the disabled, have suffered the greatest stigmatization and resulting discrimination,” said the American Psychological Association. “The perpetuation of prejudice and discrimination against persons with mental disorders in a vehicle designed to end discrimination is sadly ironic."71
The committee ultimately removed the exclusion, but the issue came back up at mark-up. Congressman William E. Dannemeyer (R-CA) proposed an amendment that would have supplemented the established exclusion of compulsive gambling, kleptomania, and pyromania by prohibiting all “behavior disorders.” Based upon his belief that the ADA was “a homosexual rights bill in disguise,” his amendment also proposed the exclusion of anyone with a contagious or sexually transmitted disease.72 These proposals posed a major threat to the ADA, for they applied not just to transportation, but to the entire bill. Although the committee rejected the Dannemeyer amendment, these issues were only temporarily put to rest.
The Public Works and Transportation Committee held its hearings on the ADA before Energy and Commerce, on September 20 and 26, 1989. But it held its mark-up several weeks after the Energy and Commerce Committee, on April 3, 1990. For disability advocates, the Public Works and Transportation Committee was much easier to work with than the Energy and Commerce Committee, but it ultimately posed a significant threat to their objectives. Chairman Anderson was a strong supporter of the ADA and charged staff member Roger Slagle, whom he appointed to take the lead on the ADA, with a clear mission: “Get the people on the bus."73 Slagle was not a detached mediator; he strove for optimal accessibility. From the disability community, he worked especially with attorney Chai Feldblum, whom he described as “one of the brightest people I’ve ever worked with in my life."74 But Slagle had one major reservation: unwarranted litigation against transit authorities. Slagle said people on the House side referred to the Senate bill as the “we’re-going-to-sue-your-ass” bill. They feared that under the Senate bill a person with a disability might be able to sue a transit authority simply because a lift-equipped bus was late. “We in the House felt an obligation to . . . fine tune” the ADA, said Slagle, “in a way the transit authorities could embrace [the act] and make it work."75
The Chairman of the Subcommittee on Surface Transportation was Congressman Norman Y. Mineta (D-CA). Congressman Coelho, who was a close friend of Mineta’s, vigorously lobbied Mineta to be more than a passive supporter of the ADA; Coelho wanted him to be an active advocate. The fact that Mineta was indebted to Coelho for crucial help on one of his own legislative endeavors helped persuade him. And Congressman Mineta came through: he was “absolutely wonderful,” said Coelho.76
Although there were strong advocates for the ADA on the Public Works and Transportation Committee, there was also a powerful counter-voice in Congressman Bud Shuster (R-PA). Shuster repeatedly referred to his mother, who was “a double amputee in a wheelchair,” and how he “skinned my knuckles more times than I can count trying to jiggle her wheelchair through a door that should have been wider . . . or trying to lug a wheelchair up a set of stairs where there should have been a ramp."77 There was no reason, he thought, that she would ever want or need to get on a bus, and he outright opposed equipping all buses with lifts. Many persons in the disability community, however, thought Shuster was out of touch with their sentiments. Persons in wheelchairs did not want to be pushed around and transported; rather, they wanted to control their own mobility and travel as independently as possible—which required accessible vehicles.
The Public Works and Transportation Committee had jurisdiction over transit: that is, transportation used primarily for commuter purposes. One of the biggest issues the committee faced was whether to include a lift on every transit bus. Eastern Paralyzed Veterans of America (EPVA) attorney Jim Weisman, who served as a transportation expert for the disability community, was amazed that some members were opposed to putting lifts on buses. It seemed “ridiculous to me,” he said, “because it was academic. . . . Transit authorities had just about given this up. [Everybody] who was anybody knew transit authorities knew that the handwriting was on the wall."78
The alternative to equipping buses with lifts was providing paratransit service. Congressman Shuster emphasized that persons with disabilities in his district preferred paratransit over fixed-route buses. So might most people, given a chance to have door-to-door transportation. The problem with paratransit service was that its expenses were unlimited, whereas for fixed route systems the primary cost was a onetime lift installation. Fixed-route buses collected money with every ride; each ride on paratransit cost the operator substantial money. Consequently, paratransit service was unable to meet the demand of its clientele. Transit authorities such as APTA, as Weisman observed, were becoming convinced that it was more cost-effective for them to purchase lift-equipped buses and were thus very moderate in their reservations about the ADA. Members of Congress were the most vigorous opponents. Ultimately, however, the committee sided with its constituents who pushed for lift-equipped, fixed-route bus systems and a supplemental paratransit service for those unable to use standard service.
Debate about what to do with intercity bus services such as Greyhound was much more contentious. Senators had responded by removing the original lift mandate and requiring that a three-year study assess the most effective and cost-efficient accessibility. Greyhound and the ABA argued that people who could not manage the steps into an intercity bus should simply be carried onto the bus. The difference with intercity (“over-the-road”) buses was that a lift potentially took away seats and luggage space. Companies such as Greyhound were in many cases the only transportation serving rural areas. They argued that the loss of revenue from lift-installation would necessitate reduced service areas, and that many people would thus be deprived of their only form of transportation. The disability community used the same evidence to make the opposite point: since buses were in some cases the only available form of transportation, it was imperative that persons with disabilities be able to use them. They also argued that it was unfair for Greyhound, which was struggling financially, to point to accessibility as the cause or potential cause of its problems. Ultimately, the committee agreed with the Senate’s provision requiring a study and thereby delayed the final decision.
The Public Works and Transportation Committee’s primary responsibility with respect to the ADA was bus transit, subways, paratransit, and intercity buses, but it had jurisdiction over rail systems operated by transit authorities. Thus, certain commuter rail routes—for example, from Baltimore to Washington—fell under its jurisdiction. This meant that two different committees had the opportunity to craft rail requirements. The bill the Public Works and Transportation Committee brought before the mark-up, like that of the Energy and Commerce Committee, endorsed the Senate requirements for one car per train, and accessibility for all new vehicles. But an amendment was introduced at the Public Works and Transportation Committee mark-up that removed the accessibility requirement for all new vehicles. Proponents of the amendment contended that trains should be approached like airplanes, where only designated seats, not the entire plane, had to be accessible. The amendment attracted a small number of Democrats whose districts had made little headway in rail accessibility. Combined with the votes of Republicans, who almost unanimously supported the amendment, these Democrats’ votes helped give the amendment a majority. It was a significant defeat for the disability community, since the provision violated one of the community’s main principles: accessibility for all new vehicles.
The matter was not, however, settled. The amendment created a jurisdictional conflict that had to be settled by House leadership, the House Parliamentarian, and the Rules Committee. Chairman Dingell characteristically and vigorously argued that his committee’s jurisdiction should prevail. Democratic leadership on the Public Works and Transportation Committee, on the other hand, especially Congressman Mineta, subtly revealed to Congressman Hoyer and the House leadership that they supported the Energy and Commerce version of the ADA. To the relief of the disability community, the House Parliamentarian and the Rules Committee ruled in favor of Energy and Commerce.
‡ A fixed route system is one where public transportation is provided by vehicles that follow prescribed routes according to a fixed time schedule.
§ Light and rapid (or heavy) rail are categorized according to the volume of passengers carried, and have nothing to do with weight. An example of a light rail vehicle is a street car like those in San Francisco. An example of a rapid (or heavy) rail vehicle is one used for the Washington Metro subway system.
** Paratransit service is door-to-door service provided to qualified persons according to the inability to use standard public transportation. Use must be scheduled in advance, sometimes as much as a week, and can be restricted only to certain destinations, like doctors’ offices.
†† Demand responsive transportation means any system of providing transportation to the general public that does not operate according to a fixed schedule: for example, a hotel or rental car company running an airport shuttle.
‡‡ Intercity rail, as defined in the ADA, refers exclusively to transportation provided by the National Railroad Passenger Corporation (Amtrak).
§§ Commuter rail refers to any rail service, provided by public or private entities, used by the general public primarily for commuter purposes, as opposed to rail systems with dining and sleeping cars. Some routes may be “intercity” in nature: for example, commuting from Baltimore to Washington.
*** Over-the-road buses are those where passengers are elevated above a luggage compartment: for example, Greyhound buses.
67. Neas, interview, January 21, 1994.
68. Karen Peltz-Strauss, telephone conversation with author, June 5, 1997.
69. Congressman Bob Whittaker, 136 Cong. Rec. (May 17, 1990), p. H2433.
70. Karen Peltz-Strauss, telephone conversation with author, June 5, 1997.
71. American Psychological Association, “Comments on Energy and Commerce Committee ADA Staff Discussion Draft,” [no date], in possession of Feldblum.
72. Bill Dannemeyer, Joe Barton, Don Ritter, “Dissenting Views on the Americans with Disabilities Act,” in Committee on Energy and Commerce of the U.S. House of Representatives, Americans with Disabilities Act of 1990: Report Together with Dissenting Views, reprinted in Legislative History of Public Law 101-336, p. 615–17.
73. Quotation attributed to Glenn Anderson by Roger Slagle. Slagle, interview.
74. Ibid.
75. Ibid.
76. Coelho, interview, November 22, 1996.
77. Congressman Bud Shuster, statement, Cong. Rec., v. 136 (May 17, 1990), p. H2436. As transcribed for the Cong. Rec., Shuster’s statement reads that he “skimmed” his knuckles. This appears to be a transcription error, and has been corrected silently in the text to read “skinned.” This is consistent with another reference to this experience where Shuster says he “banged up my knuckles.” Congressman Bud Shuster, statement, Committee on Public Works and Transportation, Hearings Before the Subcommittee on Surface Transportation of the Committee on Public Works and Transportation, House of Representatives, 101st Cong., 1st sess., Serial No. 101-32, (September 20, 1989), reprinted in Leg. Hist., p. 2561.
78. Weisman, interview.
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.
User Comments/Questions
Add Comment/Question