Nov 14, 2009
Ruth Colker
ADA Title I provides that: No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.
ADA Title II provides that: [N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.
ADA Title III provides that: No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.
The term disability is defined as: (a) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (b) a record of such an impairment; or (c) being regarded as having such an impairment.
The Americans with Disabilities Act (ADA) (P.L. 108-23), enacted by Congress in 1990, forbids discrimination against individuals with disabilities. The act consists of three major provisions, called "titles": Title I prohibits discrimination in public or private employment; Title II prohibits discrimination at public entities (like public universities or hospitals); and Title III prohibits discrimination at places of public accommodation (like hotels and restaurants). The ADA extended existing prohibitions against discrimination entities that receive federal financial assistance, like public parks, to private entities like privately owned recreational facilities.
In general, the statute prohibits discrimination against qualified individuals with disabilities. In order to be qualified, an individual must be able to engage in the activity in question with "reasonable accommodation." A reasonable accommodation might be a modification in a rule or procedure, or the provision of an auxiliary aid. Whether an accommodation is "reasonable" will rest, in part, on whether it is unduly expensive. Which accommodations are reasonable varies throughout the statute, depending on whether one is suing under Titles I, II, or III. Not all individuals with disabilities, however, require accommodations to engage in programs or activities. Often, they simply need an entity to provide nondiscriminatory treatment by, for example, ending their ban on participation by individuals with disabilities.
The statute also provides various "defenses," or grounds on which a person or entity can legally discriminate against an individual with a disability. One of the most important defenses is the "direct threat" defense. An employer can refrain from hiring an individual not merely because the individual might cause harm to others but because the individual may cause harm to him- or herself through the employment in question. For example, in 2002 the Supreme Court ruled in Chevron v. Echabazal that the employer could refrain from employing a person out of concern that working conditions would exacerbate his liver disease.
The constitutional basis for the ADA is the commerce clause authority given to Congress, as well as its authority under section 5 of the Fourteenth Amendment. Under section 5, Congress has the authority to enact legislation to enforce the Fourteenth Amendment's equal protection or due process clause. However, Supreme Court rulings in the years after ADA was enacted challenged the act's constitutionality under both the commerce clause and section 5. In 2001 the Supreme Court ruled in Board of Trustees v. Garrett that Congress could not constitutionally create a private right of action for monetary damages against the state involving employment discrimination under ADA Title I. In other words, a private individual could not bring an employment discrimination action in federal court for back pay or damages due to disability discrimination by the state. Numerous lower courts have extended that holding to ADA Title II, ruling more broadly that Congress does not have the authority to create a private right of action against the states to remedy disability discrimination in the nonemployment context. It is expected that the Supreme Court will ultimately resolve this issue.
Even if the Supreme Court eventually rules that Congress does not have the constitutional authority to create a private right of action against the states to remedy disability discrimination, the United States Department of Justice can still enforce the ADA against the states. Sovereign immunity principles protect the state from suit by private individuals. However, these principles do not apply when the federal government sues the state on behalf of an aggrieved individual (an individual with a claim of discrimination). Moreover, private rights of action may still be maintained against private defendants and against local governments.
The ADA grew out of different roots from those of the Civil Rights Act of 1964. The National Council on the Handicapped, a panel of thirteen people appointed by President Ronald Reagan, proposed the first version of the ADA in 1988. This version, which offered more protections for people with disabilities than the enacted version, was largely ignored when Senator Lowell Weicker, a Republican from Connecticut, introduced it in the closing days of the 100th Congress.
In the early days of the George H. W. Bush administration, the bill was cut back to make it more acceptable to the business community. Senator Tom Harkin, a Democrat from Iowa, and Representative Tony Coelho, a Democrat from California, were the chief sponsors of the new version of the ADA, which had been worked out through compromise between the act's supporters and detractors. Some disabilities rights advocates worried that proponents of the ADA gave away too much during compromise negotiations. The bill contained the following revisions:
The compromise bill eventually became law in the summer of 1990 in an overwhelming bipartisan vote in both the House and Senate.
One reason for the bill's strong support was that many members of Congress had personal or family reasons for being concerned about disability issues. Other key figures in passage of the act were Attorney General Richard Thornburgh; Senator Robert Dole, a Republican from Kansas; and Senator Ted Kennedy, a Democrat from Massachusetts. The major public interest advocates for the ADA were the Disability Rights Defense and Education Fund and the American Civil Liberties Union.
The historical roots of the ADA lie in section 504 of the Rehabilitation Act of 1973, which creates protection against disability discrimination in programs receiving "federal financial assistance." The ADA is modeled on the basic framework used in section 504, including its definition of an individual with a disability. Congress held extensive hearings before enacting the ADA, and key committees wrote extensive reports on the act before it was adopted. The Supreme Court has not relied on that background material in interpreting the act. However, it has sought to interpret the ADA consistently with previous cases argued under section 504.
Another important precursor of the ADA was the Fair Housing Act Amendments of 1988. These amendments extended some of section 504's protections to the private sector by prohibiting discrimination in housing on the basis of disability. It was not until the passage of the ADA in 1990, however, that the private sector began to be broadly covered under federal law by a requirement of nondiscrimination in housing as well as employment.
In the first decade of enforcement of the ADA, many legal cases focused on the definition of an "individual with a disability." The ADA is different from most other civil rights laws in that a person must belong to a protected category to receive legal protection from it. Under the Civil Rights Act of 1964, by contrast, both males and females can bring claims of sex discrimination, just as both whites and blacks can bring claims of race discrimination. Under the ADA, only individuals who qualify as "individuals with a disability" can bring claims of discrimination. An important defense strategy has been to argue that the plaintiff is not "disabled" according to the ADA's definition, and therefore does not have a cause of action. When that strategy is successful, the court does not even reach the question of whether unlawful discrimination occurred.
Sutton v. United Air Lines. In the 1999 case Sutton v. United Air Lines, the Supreme Court interpreted the definition of disability narrowly. The plaintiffs in Sutton sued under Title I, arguing that they had been the victims of unlawful employment discrimination when they failed the vision test required by United Air Lines to work as a commercial pilot. The Court did not come to the question of whether the discrimination they faced was unlawful (or permitted by one of the statute's defenses). Instead, it found that the plaintiffs could not bring an ADA lawsuit because they were not individuals with a disability as defined by the act.
The plaintiffs' uncorrected visual acuity (in other words, sharpness of vision without corrective lenses) was 20/200 or worse in one eye and 20/400 or worse in the other eye. With corrective lenses, their vision was 20/20 or better. The legal question in the case was whether a court should determine the disability status of individuals in their corrected or uncorrected state. The Supreme Court held that "disability under the Act is to be determined with reference to corrective measures." In simpler terms, when wearing glasses or contact lenses the individuals were not disabled. Therefore the plaintiffs had not stated a claim that they were disabled even though United Air Lines had required them to take the vision test without the use of corrective lenses. This interpretation of the ADA has prevented individuals from obtaining protection under the statute if they have an impairment that can be corrected, in part, through some means. Individuals with hearing impairments, diabetes, high blood pressure, and psychological impairments have been found not to be disabled under this narrow standard.
The Importance of Voluntary Compliance. In ADA litigation, particularly in employment discrimination cases, the winners have overwhelmingly been the defendants. Nonetheless, a glance at many public accommodations like hotels, restaurants, and recreational facilities suggests that the ADA has been effective in heightening public awareness of disability issues and encouraging voluntary compliance. Curb cuts, areas where sidewalks dip down to be level with the street to allow easy passage for wheelchairs, or other mechanisms that aid the disabled were virtually unheard of a decade ago and are now seen in most major cities. The most important factor in the act's success in its first decade seems to be voluntary compliance rather than litigation.
The ADA is not the only federal statute to prohibit disability discrimination. Until passage of the ADA, the strongest legislation to protect people with disabilities was probably the Individuals with Disabilities Education Act (IDEA) (formerly known as the Education of All Handicapped Children Act). This civil rights statute guarantees that each child with a disability can have an "individualized education plan" so that he or she can receive a "free appropriate public education."
Other statutes preceding the ADA include the Developmental Disabilities Bill of Rights Act of 1975, the Air Carrier Access Act of 1986, the Voting Accessibility for the Elderly and Handicapped Act of 1984, sections 501 and 503 of the Rehabilitation Act of 1973, and the Fair Housing Act Amendments of 1988.
See also: CIVIL RIGHTS ACT OF 1964; FAIR HOUSING ACT OF 1968; INDIVIDUALS WITH DISABILITIES EDUCATION ACT.
Colker, Ruth. "The Americans with Disabilities Act: A Windfall for Defendants." Harvard Civil Rights–Civil Liberties Law Review 99 (1999).
Colker, Ruth, and Bonnie Poitras Tucker. The Law of Disability Discrimination, 3d ed. Cincinnati, OH: Anderson Publishing, 2000.
O'Brien, Ruth. Crippled Justice: The History of Modern Disability Policy in the Workplace. Chicago: University of Chicago Press, 2001.
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