© ROBERT L. BURGDORF JR., JUNE 17, 2015, ALL RIGHTS RESERVED.
NOT FOR REPRODUCTION, DISSEMINATION, OR OTHER USE WITHOUT FULL AND ACCURATE ATTRIBUTION TO THE AUTHOR
A DOZEN THINGS TO KNOW ABOUT THE ADA
ON ITS 25TH ANNIVERSARY
Most Americans have heard of the Americans with Disabilities Act (ADA) and probably know that it prohibits discrimination on the basis of disability. But many have little idea of the interesting background and often dramatic events that culminated in the ADA, and may harbor misimpressions about the law and its origins. The author of this article has had the good fortune to have been involved in disability advocacy for over forty years and to have participated in many of the pivotal events that led to the ADA, and offers this list of lesser-known, but nevertheless important, facts and insights about the ADA.
(1) The Americans with Disabilities Act had its origins in a disability rights movement that erupted in the early 1970s and produced impressive successes, particularly in the courts; today the struggles, creative strategies, and triumphs of the disability rights trailblazers are largely unremembered.
The disability rights movement arose from the angst and impassioned advocacy of individuals with disabilities, parents, teachers, and concerned citizens, who gained the support of expert disability professionals and scholars, reporters, disability service organizations, legislators, and, in due course, enlightened lawyers and judges. Early judicial victories, particularly in Pennsylvania, Alabama, and the District of Columbia, spawned an avalanche of disability rights lawsuits around the country in the 1970s, in which courts recognized and enforced legal rights of people with disabilities and ruled various kinds of discrimination illegal. Initial groundbreaking successes in the courts focused on access to public school education and confinement in residential treatment facilities, but subsequent court decisions addressed unequal treatment of people with disabilities in other contexts, including transportation, guardianship, housing, medical services, sterilization, contracts, and voting. The names and accomplishments of pioneers in the disability rights movement in the 1970s, including Dennis Haggerty, Gunnar and Rosemary Dybwad, Tom Gilhool, Tim Cook, Morton Birnbaum, Linda Glenn, Ignacy Goldberg, Jack Achtenberg, Alan Abeson, Wolf Wolfensberger, Eunice Fiorito, David Ferleger, Bruce Ennis, and Burton Blatt, deserve to be more widely known and acclaimed.
(2) Understanding the full magnitude of the impact of the disability rights movement, and ultimately that of the ADA, requires an appreciation of the atrocious status of people with disabilities in our society previously.
In 1971 a New York judge described people with disabilities as “the most discriminated [against] minority in our nation.” Discriminatory treatment of people with disabilities was manifold and pervasive. Most public transportation systems made few, if any, accommodations for persons with disabilities in their stations and vehicles, resulting in a transportation infrastructure that was almost totally unusable by people with mobility impairments – a situation that was mirrored in inaccessible private transportation services such as taxis, ferries, and private buses. Government buildings and public monuments and parks had generally been designed and built without taking into account the possibility that people with disabilities might want or need to use them. And most owners of stores and other business facilities had not expected to or planned for serving customers with disabilities. Flat or ramped entrances into buildings were the exception rather than the rule, and curb cuts/curb ramps on sidewalks were extremely rare, often forcing people who used wheelchairs to make their way on streets where they faced the peril of being hit by motor vehicles.
People with disabilities were routinely denied rights that most members of our society take for granted, including the right to vote, to obtain a driver's license or a hunting or fishing license, to enter the courts, and to hold public office. Many American states had laws prohibiting marriage by, and permitting or requiring involuntary sterilization of, persons with various mental or physical conditions, particularly intellectual disability, mental health conditions, and epilepsy. A number of states restricted or denied the right of people with mental disabilities to enter into contracts. Several U.S. cities had what became known as “ugly laws” that banned from streets and public places people whose physical condition or appearance rendered them unpleasant for other people to see. In some instances, discrimination threatened the very lives of individuals with disabilities, in that lifesaving medical treatments that would routinely have been made available to other patients were denied to patients with disabilities; in 1974, the New York Times cited an estimate that unnecessary deaths of babies with disabilities in the U.S. resulting from withholding of medical treatment numbered in the thousands each year.
Large numbers of children with disabilities were systematically excluded from American public schools. The widely quoted estimate was that at the beginning of the1970s approximately one million individuals with disabilities of school age were totally excluded from public educational programs, and another three million pupils with disabilities attended public schools but were not provided adequate and appropriate education services to meet their basic educational needs. And if the public schools’ underserving of students with disabilities was disgraceful and appalling, the performance of state residential treatment institutions was generally abysmal. The large state facilities, purportedly designed to provide housing and care for people with disabilities, were almost always located in rural areas with tall walls and locked wards that isolated and segregated the residents from the rest of society; usually provided lodging that was primitive at best and often unsanitary, dangerous, overcrowded, and inhumane; and provided little if any care, habilitation, training or even basic nourishment for the residents. Those who made the effort to take a serious look and render an honest appraisal of such facilities called them “snake pits,” “human warehouses,” “virtual prisons,” “hell-holes,” “horrific,” “medieval,” "barbaric," and the like. Representative were the words of a New York court concerning conditions it documented at Willowbrook State School in 1972: “horrible,” “dreadful,” “sub-human,” “a blot on the conscience,” “not only appalling but frightful,” a place where “the most helpless and defenseless of our citizens were left living on a thread of life, human vegetables rotting in inadequate warehouses, the living among the dead, the dead among the living.”
(3) Judicial victories in disability rights cases in the early 1970s, along with the breakthroughs and model provided by the Civil Rights Movement, led to the enactment of the Education for All Handicapped Children Act, and of Section 504 of the Rehabilitation Act, a major precursor of the ADA.
Congress took many of the legal principles recognized in the access-to-public-education lawsuits (largely based upon principles established in the Supreme Court’s historic Brown v. Board of Education decision) and wrote them into federal law in the Education for All Handicapped Children Act (EAHCA), subsequently renamed the Individuals with Disabilities Education Act (IDEA). This Act, and the court decisions that spawned it, established that public schools were required to provide appropriate education services to students with disabilities. Taking another page from civil rights racial equality legislation, Congress enacted, as Section 504 of the Rehabilitation Act of 1973, a provision modeled on Title VI of the Civil rights Act of 1964. The gist of Section 504 was to prohibit recipients of federal financial assistance from discriminating against people with disabilities in participating in their programs and activities. Given the wide range of federal funding in the U.S., the reach of Section 504 was substantial and it was heralded as a major step forward in disability rights protection. Years later, Section 504 regulations and judicial decisions would have a significant effect on the wording and interpretation of the ADA.
(4) Though it represented an inspiring advancement in disability nondiscrimination law, Section 504 contained drafting flaws that would lead to some unfortunate legal decisions and ultimately plague interpretation of the ADA.
Section 504 had tremendous symbolic, and considerable practical, impact. Apart from a largely unknown and rarely, if ever, applied 1948 statute that barred discrimination because of “physical handicap” in U.S. civil service jobs, it was the first federal law that prohibited disability discrimination. Upon its passage, disability advocates hailed Section 504 as landmark legislation, with one calling it “the single most important civil rights provision ever enacted on behalf of disabled citizens in this country.” It afforded advocates a new legal tool for challenging discriminatory policies and actions of recipients of federal financial assistance – a legal ground that they incorporated into many existing and subsequent disability rights lawsuits. After some delay, met with protests and civil disobedience actions by disability groups, the federal government issued regulations for implementing Section 504. These regulations fleshed out the requirements of the one-sentence statute, ironed out a few of the flaws and gaps in it, and established various implementation and enforcement measures, including a requirement that covered entities develop a Section 504 Transition Plan setting out how they were going to comply – all of which had a major effect in discouraging and countering disability discrimination.
What is often overlooked, however, is that the seven Senate staffers who, with the best of intentions, successfully slipped the Section 504 provision into the Rehabilitation Act, made something of a mess in drafting its language. In order to make sense of it, Congress amended it a year later to establish a workable definition of the term “handicap,” and courts and regulation drafters had to ignore or nullify other terms and phrases. The author of this article has routinely used the development of Section 504 in his law school Legislation courses as an object lesson on how not to draft a statute. More subtle and thorny deficiencies in the structure of Section 504, relating to establishment of a constricted protected class and what plaintiffs need to show to make a prima facie case, were not rectified and would eventually lead to troublesome lines of Section 504 decisions, and seriously undermine ADA interpretation as well.
(5) To the surprise of many and to the consternation of some, the pivotal proposal of a comprehensive law prohibiting discrimination on the basis of disability and the suggestion that such a law be named the Americans with Disabilities Act did not come from members of Congress, their staffs, lobbyists, or other Washington insiders.
While some disability organizations and disability rights advocates had recognized the need for broad civil rights protection for people with disabilities, no formal proposal of a comprehensive disability nondiscrimination law was made until 1986. The proposal was the first and primary recommendation of the National Council on Disability (NCD) (the “National Council on the Handicapped” at that time) in its report Toward Independence. NCD is an independent federal agency charged with making recommendations to Congress and the President for improvement of federal disability laws and programs. Though it is an agency of the government, NCD’s 15 members at the time were private citizens from all around the country (except Washington, DC). If the Council members lacked expertise and experience in the wheeling and dealing of Washington politics and congressional procedures, they were keenly devoted to representing the interests of grassroots people with disabilities, and held consumer forums in every part of the US to gather grassroots views to help frame their recommendations. Based upon such input, NCD reported that the number one problem of people with disabilities was discrimination, and accordingly called for 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 [disability]." At the suggestion of Council member Kent Waldrep, the report proposed that the law be named something “such as the Americans with Disabilities Act.”
(6) Initial opposition to the ADA proposal came from within the disability community, primarily from organizations with an established Washington presence.
Even before the Council published Toward Independence with its ADA recommendation, preliminary vetting of the ideas contained in the report precipitated some opposition to the ADA proposal. Unexpectedly, some initial, fierce resistance came from within the disability community. One Washington disability advocate circulated a memorandum titled “Why the NCH Proposal Must Be Opposed.” Several disability organizations that maintained a lobbying presence in Washington told Council staff that, while their organizations would not publicly oppose the ADA recommendation, they would not lend their support to it, and might even discourage members of Congress from embracing it.
A variety of reasons underlay the frosty reaction of such organizations to the ADA proposal. They and other disability rights advocates had just finished several years of bruising battles resisting attempts by the Reagan administration to roll back important elements of the Section 504 and EAHCA regulations; because NCD was comprised of Reagan appointees, some organization representatives were suspicious that this ADA proposal was a devious plot to reassert surreptitiously cutbacks on rights under the regulations. Others thought the ADA initiative was simply a waste of time because they deemed it had no chance of getting passed. And some may have resented the fact that this potentially game-changing proposal had come, not from their own organizations or agencies they had a history of working with, but from this new upstart National Council – perhaps a manifestation of what some innovators refer to as “Not Invented Here” resistance. The initial reaction to the ADA proposal by most of the Washington disability lobbying clique ranged from active, vocal opposition to it; to totally ignoring it; or to public silence or sometimes tepid endorsement (damning by faint praise?), frequently accompanied by private badmouthing of it. The tide of such resistance only began to turn when the Council took the bold step of publishing a proposed draft of an actual ADA bill in 1988, which allowed individuals with disabilities at the grassroots level to rally behind the proposal and push their organizations (and the Senators and Representatives who represented them) to endorse and support it.
(7) Prior to enacting the ADA, Congress had engaged in 25 years of methodical study of discrimination on the basis of disability and legal options for addressing it; during consideration of ADA bills, Congress subjected the legislation to intense congressional scrutiny in six different committees and in extensive floor debates.
A mere 27 months elapsed between the introduction in Congress in April 1988 of an ADA bill closely based on the National Council’s draft bill, and final passage of the final ADA bill on July 26, 1990. This relative swiftness for passage of such a momentous law does not mean, however, that ADA was a bolt from the blue, or that Congress acted precipitously or rashly in enacting it. In fact, the ADA was the culmination of 25 years of methodical congressional study, measured legislative steps, and finely tuned negotiation regarding the problem of discrimination on the basis of disability and appropriate remedies for addressing such discrimination. During that quarter century, Congress established a number of investigatory and advisory instrumentalities charged with studying various facets and manifestations of disability discrimination and proposing ways to address and eliminate it. These entities issued quite a number of informed and authoritative reports laying groundwork for understanding and eradicating such discrimination. Congress had also field-tested disability nondiscrimination measures in prior federal laws including the Architectural Barriers Act, the Air Carrier Access Act, and, in particular, Section 504, and the regulations implementing them.
Once Congress took up the ADA legislation, it was meticulous and thorough in its examination and scrutiny. The ADA bills were assigned to four different substantive committees in the House of Representatives plus one in the Senate (and to various subcommittees of these); in addition, the legislation had to pass through the House Rules Committee and two different Joint Senate-House Conference Committees. Congress held 18 hearings to consider the ADA. After surviving this legislative gauntlet, the legislation still had to face lengthy and sometimes heated debates on the House and Senate floors. Along the way, many amendments were offered and debated, all sorts of negotiations undertaken, and many compromises reached. It could never be said that Congress in any way let the ADA sail through without putting it through the full legislative wringer.
(8) The public accommodations provisions of the ADA had a particularly interesting and significant path through the legislative process.
A key part of the ADA is its Title III that prohibits discrimination on the basis of disability in “public accommodations.” Public accommodations can be defined broadly as facilities or services in commercial use and open to the general public. In the ADA draft bill developed by NCD and introduced in Congress with only a few changes in 1988, the scope of coverage of public accommodations was not so broad; it would have applied only to those public accommodations that were covered by Title II of the Civil Rights Act of 1964. The 1964 Act applied to types of establishments that were sore spots of racial segregation and the focus of demonstrations and social unrest in the 1950s and early 1960s – inns, hotels, motels, and other lodging establishments; restaurants, cafeterias, lunchrooms, and other providers of food for consumption on the premises; motion picture houses, theaters, concert halls, sports arenas, stadiums and other places of exhibition or entertainment; and gasoline stations. The coverage of these businesses was very significant, but many other types of establishments, including grocery stores, pharmacies, shopping malls, swimming pools, bowling alleys, golf courses, bakeries, beauty salons, barber shops, laundromats, dry cleaners, banks, travel services, shoe repair services, funeral parlors, accountants’ or lawyers’ offices, hospitals and doctors’ offices, hardware stores, book stores, clothing stores, pet groomers, telephone stores, bus stations, libraries, museums, nursery schools, day care centers, food banks, health spas, and innumerable others, were not covered by the Civil Rights Act.
After the end of the 100th Congress, during which the first ADA bill was introduced, top-level staff members of Senators Tom Harkin and Edward Kennedy, two leading sponsors of the ADA and chairs of the Senate committee and subcommittee that would have jurisdiction over the legislation, convened a series of meetings with a group of disability rights leaders, mostly lawyers. The “Legal Team,” as they came to be called, represented the disability community in working with the staffers to revise the ADA bill for reintroduction in the 101st Congress. During these meetings, some on the Legal Team argued that people with disabilities experienced discrimination in many of the kinds of facilities not included in the Civil Rights Act, and a sentiment arose that the ADA ought to cover a broader swath of public accommodations. Initially, the Senate staffers and some members of the Legal Team insisted that people with disabilities should not receive broader protection than that accorded to those affected by racial discrimination. Upon further consideration, however, and with the tacit approval of the Leadership Conference on Civil Rights, a consensus emerged in favor of broadening the scope of public accommodations that would be subject to the ADA. By the time the ADA was introduced in the 101st Congress, the bill defined "public accommodation" to include all privately operated establishments whose operations affect commerce and were either "used by the general public as customers, clients, or visitors" or were "potential places of employment."
The staff director and chief counsel for the Senate Subcommittee on Disability Policy, chaired by Senator Harkin, advised the team that the success of the broader concept of public accommodations would probably depend on coming up with a pithy, compelling expression of the rationale for it. In testifying at an ADA Senate hearing, the author of this article came up with the following:
There is no sense to having certain facilities that are more needed by people with disabilities be closed off, when other facilities are open to them. For example, it makes no sense to bar discrimination against people with disabilities in theaters, but not in shops; or restaurants, and not in stores; or by places of entertainment, but not in regard to such important things as doctors' offices. It makes no sense that you can't be discriminated against on the basis of disability if you want to buy a pastrami sandwich at the local deli, but that you can be discriminated against next door at the pharmacy where you need to fill a prescription.
This testimony was quoted in ADA committee reports in the Senate and the House. ADA advocates and the members of news organizations shortened the reference to the irrationality of treating pharmacies differently from eating places to the phrase "pastrami sandwiches but not prescriptions," and this slogan became a battle cry for expansive coverage of public accommodations.
Subsequently, as the George H.W. Bush Administration was weighing whether to declare its support for the ADA while the legislation was pending in Congress, administration representatives expressed some concern over the generic coverage of places "used by the general public as customers, clients, or visitors”; they were unsure exactly what would be included, and suggested that they wanted a list instead. The Legal Team decided that if they wanted a list, it would give them a list – but a list that would be comprehensive enough to cover everything that had been included in the formulation it replaced. Following the model of Title II of the Civil Rights Act, the definition of public accommodations in the ADA was redrafted as a list of a few examples of specific types of establishments in each category, followed by a catch-all phrase “and other ____.” The 12 categories that were designated cover, with only a few exceptions, almost every facet of American life in which a business establishment or other nongovernmental entity serves or otherwise interacts with members of the general public. It covers all of the types of establishments that are subject to Title II of the Civil Rights Act, plus many others that are not covered by Title II.
(9) After having successfully made it through the congressional maze, and being passed by the Senate and House by overwhelming margins, the ADA was very nearly undone in conference committee.
The ADA bill passed by the Senate on September 7, 1989, by a vote of 76 to 8, and that passed by the House on May 22, 1990, by a vote of 403 to 20 had substantial differences from one other, so the congressional leaders sent the bill to a conference committee to reconcile the differences. This is a normal part of the legislative process and, while negotiations may be difficult and contentious, it often produces a compromise bill that both houses of Congress agree to live with. In the case of the ADA, however, the joint conference committee almost became the burial site of the legislation.
Two major sticking points prevented easy reconciliation of the differences between the Senate and House versions. The first was that the Senate bill made the ADA applicable to the Congress in the same way, with the same rights and remedies, as it applied to other entities covered by the Act, while some House leaders believed that applying ADA remedies to House personnel would violate constitutional separation of powers. An impasse over this issue was eventually skirted by the Senate and the House agreeing to use their rulemaking power to subject themselves to ADA nondiscrimination requirements but with differing internal mechanisms for enforcing them.
The second disagreement, which nearly proved fatal to the legislation, centered on what became known as the “food handlers' amendment” that had been adopted by the House during floor consideration of the bill. This provision would have allowed employers to transfer employees with HIV infection from food-handling positions so long as the transfer entailed no loss of pay or benefits. Many ADA advocates passionately opposed the amendment, believing that, as Senator Harkin put it, the provision would “codify ignorance” striking at the heart of the ADA by sanctioning discrimination based on “unfounded fear, prejudice, ignorance, and mythologies,” since medical evidence indicated that HIV could not be spread by handling food The Senate bill had no comparable provision, but the Senate approved a motion by Senator Jesse Helms directing the Senate conferees to accept the food handlers' amendment. The Senate conferees chose to treat Helms’s motion as purely advisory, refused to abide by its instruction, and convinced the House conferees to have the food handlers' amendment deleted.
When the conference report without the food handlers’ amendment was filed with the Senate, strong opposition arose to its adoption. Senators debated the issue heatedly into the evening on July 10, 1990. When two more hours of additional debate and discussion the next day produced no agreement, Senator Wendell Ford filed a motion to recommit the bill for a second conference, which seemed likely to be approved, and perhaps to spell doom for the legislation since both sides of the food handler’s issue were entrenched in their positions. At the eleventh hour, during debate on the motion to recommit, conservative Senator Orrin Hatch stepped forward to become the surprise hero of ADA passage. Buying into the notion that a piece of legislation as critical as the ADA should not founder over a provision based on prejudice and ignorance, Hatch offered an amendment to the ADA under which the application of the food-handling provision would be limited to conditions appearing upon a list, to be published by the Department of Health and Human Services, of diseases that can be transmitted by handling food. Despite the fact that the Secretary of HHS had sent Senator Hatch a letter indicating that HIV would not appear on such a list, Hatch’s proposal was hailed as a breakthrough compromise and adopted by a vote of 99 to 1 in the Senate. In the next two days, a second conference report containing the Hatch amendment was adopted in the House and then the Senate, and, less than two weeks later, the ADA was signed into law by President George H.W. Bush.
(10) The enactment of the ADA was an exceptionally bipartisan accomplishment, with many heroes on both sides of the congressional aisle.
Disability has traditionally been a cross-party political matter, but the introduction and enactment of the ADA was extraordinarily bipartisan. The ADA originated, as Senator Robert Dole, the Senate minority leader emphasized, "with an initiative of the National Council on Disability, an independent federal body composed of 15 members appointed by President Reagan and charged with reviewing all laws, programs, and policies of the Federal Government affecting individuals with disabilities." Proposed by Reagan appointees, initially sponsored by a Republican in the Senate (Senator Lowell Weicker) and a Democrat in the House of Representatives (Representative Tony Coelho), passed by a Democrat-controlled Senate and House of Representatives, and supported and signed by President George H.W. Bush, the ADA was a model of bipartisanship. As a result of such across-the-aisle support, the votes in Congress to pass the ADA were overwhelmingly in favor of passage; none of the formal up-or-down committee votes on reporting out the ADA, nor any of the floor votes on passage of the legislation, had less than a 90 percent majority in favor of the ADA bills. And the negotiations over the content of the ADA were a model of give-and-take deal-making. Members of both political parties participated in cooperative meetings to craft compromise provisions and revise problematic language in the bills. Republican Representative Steve Bartlett described meetings with the leading House advocate for the ADA, Democrat Steny Hoyer, as "the most productive and satisfying legislative negotiations that I had ever been involved with."
Scores of members of Congress were heroes in the process of getting the ADA passed. Critical leading roles were played by Senators Lowell Weicker (Rep.), Tom Harkin (Dem.), Edward Kennedy (Dem.), Robert Dole (Rep.), Paul Simon (Dem.), James Jeffords (Rep. at the time), David Durenberger (Rep.), and Orrin Hatch (Rep.); and Representatives Steny Hoyer (Dem.), Major Owens (Dem.), Hamilton Fish Jr. (Rep.), and Silvio Conte (Rep.). Representative Tony Coelho (Dem.) was an early supporter and original sponsor of the ADA; his strong commitment to the ADA might have led to greater contributions to its enactment had he not resigned from Congress because of accusations of financial ethics violations.
In today’s polarized political climate, it is enlightening to contemplate that the ADA was an exemplary fruit of bipartisan congressional cooperation. And since its passage, the ADA has been supported by each successive U.S. President, whether Democrat or Republican.
(11) After the enactment of the ADA, the courts went off on a wrong path restricting the protection provided under the Act, a detrimental deviation from the language and spirit of the law that had to be fixed by remedial legislation.
NCD’s original draft ADA bill would have granted the right to pursue an ADA complaint to any person who alleged that she or he had suffered negative treatment because of a physical or mental impairment. During negotiations for readying the legislation for reintroduction in the 101st Congress, heated debates focused on whether to replace that approach with the more intricate and complicated definition of disability in Section 504. Ultimately the congressional sponsors and most of the members of the Legal Team came down in favor of the Section 504 approach, primarily on the rationale that the Section 504 definition was already known and familiar, and the courts had interpreted it in a relaxed, inclusive manner. For quite some time after the enactment of the ADA, it appeared that the broad application of the definition of disability would continue to prevail, and the flaws and potential problems in the Section 504 formulation would remain dormant. In 1996, a federal district court declared that “it is the rare case when the matter of whether an individual has a disability is even disputed.”
In the years that followed, however, some lower courts began to take restrictive views of the concept of disability under the ADA, defendants took note, and disability began to be contested in more and more cases. Beginning with its decision in Sutton v. United Airlines in 1999, the U.S. Supreme Court started to turn its back on the broad, relaxed interpretation of disability. By the time of the Toyota Motor Manufacturing, Kentucky, Inc. v. Williams decision in 2002, the Court was espousing the view that the definition should be “interpreted strictly to create a demanding standard for qualifying as disabled” – a view that was directly contrary to congressional intent and even the statutory language of the ADA. The result of the Court’s harsh and restrictive approach to defining disability was to place difficult, technical, and sometimes insurmountable evidentiary burdens on people who have experienced discrimination. As a result numerous people who encountered discrimination because of disability had their cases thrown out of court without ever getting a chance to prove that they had been subjected to illegal discrimination.
In 2004, NCD issued a report, Righting the ADA, in which it catalogued the destructive court decisions and proposed an ADA Restoration Act bill for getting the ADA back on track; this draft bill provided the basis for ADA Restoration Act bills introduced in the 109th and 110th Congresses, and helped lead to enactment of the ADA Amendments Act of 2008. In 2013, NCD published a report, A Promising Start, which analyzed the initial court decisions under the ADA Amendments Act, and concluded that the early decisions to date were generally looking pretty good, though some potential problem areas merited ongoing monitoring.
(12) The ADA has had a profound, albeit imperfect, impact in ameliorating discrimination against people with disabilities and furthering their integration into society in America and elsewhere in the world.
In a variety of ways, the ADA has lived up to the high hopes that accompanied its passage. Among various areas of particular impact are the following:
Buildings, Facilities, and Thoroughfares: The accessibility provisions of the ADA have changed the face of American society in numerous concrete ways. A vast number of buildings and other structures have been affected by provisions of the ADA that require newly designed or constructed places of public accommodation or other commercial facilities to be readily accessible to and usable by people with disabilities. Flat or ramped entrances into buildings are becoming the rule rather than the exception, and curb cuts/curb ramps on sidewalks are now commonplace. As a result of ADA mandates, designated disability parking spaces have become a standard feature of parking lots and garages. Due to all these improvements, today it is common to encounter people using electric and manual wheelchairs, or crutches, or white canes or service animals, or with prosthetic devices, on sidewalks and in parking lots, at malls and shopping centers, in airports and train stations, in stadiums and theaters, in parks and playgrounds, and at most other public places.
Mass Transportation: The ADA’s mass transit provisions ended decades of disagreements and controversy regarding exactly what is required of public transportation systems to avoid discriminating on the basis of disability. The ADA imposed detailed provisions describing requirements for operators of bus, rail, and other public transportation systems, and intercity and commuter rail systems. Although implementation has been far from perfect and ADA provisions do not answer all the questions, considerable progress in transportation accessibility has been made.
Telecommunications: The ADA’s telecommunications provisions have resulted in the establishment of a nationwide system of relay services, which permit the use of telephone services by those with hearing or speech impairments, and a closed captioning requirement for the verbal content of all federally funded television public service announcements.
State and Local Government Services and Public Accommodations: The provisions of Title II of the ADA (covering state and local governments) and Title III (covering public accommodations) have eliminated many discriminatory practices by private businesses and government agencies. The U.S. Supreme Court’s interpretation of the ADA in the Olmstead v. L.C. case has had a profound impact in promoting the development of community residential, treatment, and care services in lieu of unnecessarily segregated large state institutions and nursing homes, and spawned strong presidential initiatives declaring and implementing the commitment of the United States to community-based alternatives for people with disabilities.
Hiring Practices: The ADA’s employment provisions have dramatically affected hiring practices by barring invasive pre-employment questionnaires and disability inquiries, and the misuse of information garnered in pre-employment physicals. The employment provisions also have made job accommodations for workers with disabilities more common than they were before the ADA was enacted.
HIV Discrimination: The ADA has proven to be the principal civil rights law protecting people with HIV from the sometimes egregious discriminatory actions directed at them, and has been so applied by the Supreme Court.
International Effect: The ADA has spurred numerous other countries to seek legislation in their own jurisdictions to prohibit discrimination on the basis of disability. These countries have looked to the ADA as an inspiration, a touchstone, and a model in crafting their own legislative proposals.
None of the foregoing is meant to suggest that the ADA is a panacea for people with disabilities, nor to ignore the fact that there are huge gaps in enforcement of the law’s requirements and that some covered entities have taken an I-won’t-do-anything-until-I’m-sued attitude toward the obligations imposed on them. But, in 25 years since its enactment, the ADA has, as NCD observed in one of its reports, “begun to transform the social fabric of our nation.”
Robert L. Burgdorf Jr., recognized by the U.S. Supreme Court as the author of the original version of the Americans with Disabilities Act (ADA), has been a disability rights scholar and legal advocate for over 40 years. He is Professor Emeritus at the David A. Clarke School of Law and is currently writing a book about the enactment of the ADA and the disability rights movement that made it possible.