LAWYERS, LAWSUITS, AND LEGAL RIGHTS "ss1.15"

ENACTMENT OF THE ADA

Weicker and Coelho introduced the bill mainly for symbolic reasons. There were hearings late in the fall, but no serious action was ever contemplated. Yet the draft did have an important effect: during the 1988 presidential campaign, George Bush endorsed the bill in concept. In his presidential nomination acceptance speech at the Republican national convention, Bush pledged that "I'm going to do whatever it takes to make sure the disabled are included in the mainstream." Since his experience with Reagan's Task Force on Regulatory Review, Bush had become a disability rights believer and had continued to use disability rights activist Evan Kemp as an advisor. Moreover, Bush was influenced

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by another group of Reagan appointees, the Commission on the Human Immunodeficiency Virus Epidemic. Bush said he was "very much persuaded" by the AIDS commission's conclusion that discrimination against people with HIV should be made illegal, and its endorsement of the ADA as a vehicle for this.^[75] Bush's stance was reinforced after the 1988 election. A pollster for Louis Harris and Associates estimated in a letter to the president that up to half of Bush's four-millionvote margin in the election had come from disabled voters who had switched from the Democratic party to Bush.^[76] This estimate was circulated in the White House and became a point of pride for C. Boyden Gray, who had pushed to make disability rights a priority in the Bush administration.^[77]

Bush's endorsement of the ADA before the election set the tone for the legislative struggle that ensued. When Bush took office, he was committed to passing the bill, and there was little or no public opposition within the White House. "Shut up and get on with it was the attitude," according to one top Administration official.^[78]

ADA in the Senate

Tom Harkin, chair of the Subcommittee on the Handicapped (later renamed the Subcommittee on Disability Policy), and Ted Kennedy, chair of the Education and Labor Committee, became the prime movers of the ADA in the Senate. They determined early on that the first version of the ADA, based largely on the National Council on the Handicapped proposal, would have to be extensively revised.^[79] The Reagan-appointed conservatives on the council had approved a surprisingly radical measure. Dubbed the "make the world flat" bill, the first version of the ADA would have required all buildings to be made accessible within five years unless doing so would fundamentally alter the nature of a program or threaten a company's existence.^[80] This "bankruptcy" provision, among others, would have to be modified, the senators decided, if the bill was to stand a chance in Congress.

In January of 1989 a core group of disability activists and Senate staff members began revising the bill.^[81] The group adopted a strategy that would become a primary theme in the debate over the ADA. The ADA's first version used language from the regulations and case law that had been developed in Section 504 enforcement. In employment cases, for example, employers were required to provide "reasonable accommodation," the same phrase used in 504 employment cases. But in many

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respects, such as the infamous "bankruptcy" provision, the first draft deviated significantly from 504. Robert Silverstein, staff director of the Senate Subcommittee on Disability Policy, argued that the ADA should as much as possible draw language and concepts from the enforcement of Section 504. As a result, the group changed the bankruptcy provision so that a company would have only to prove that a modification entailed an "undue hardship"—the same defense businesses used in Section 504 cases. Instead of mandating "flat earth" modifications to existing buildings, changes would be required only if "readily achievable," again language from case law over 504. The use of this language was meant to reassure anxious members of Congress that the ADA was simply an extension of Section 504 and that years of experience with the 504 language would guarantee the ADA's smooth implementation. As one participant said, "Every time we departed from 504, we had to have a damn good reason to do so, and one that was politically viable."^[82]

Proponents of the ADA enlisted many organizations to endorse the bill, but the most important allies for the disability lobbyists were civil rights groups. Pat Wright, the head of DREDF and the primary strategist among the disability activists, had nurtured the relationship between disability groups and civil rights groups for years. In 1981 DREDF had called a conference of civil rights leaders, ostensibly to have them share expertise on political action with disability rights lobbyists. Ralph Neas, executive director of the Leadership Conference on Civil Rights, suspected an ulterior motive: "What [DREDF was] doing was making all of us a captive audience and educating us with respect to disability rights."^[83] Shortly afterward the Leadership Conference, a lobbying coalition of all major civil rights groups, decided that disability was indeed a civil rights issue. Neas cannot remember any public debate within the Leadership Conference about whether disability rights was a civil rights issue.^[84]

The Leadership Conference first worked with the disability lobby on the 1984 Voting Accessibility Act.^[85] Civil rights and disability groups became true coalition partners, though, in the struggle over the Civil Rights Restoration Act. The act aimed to reverse the Supreme Court's 1984 decision in Grove City College v. Bell,^[86] which held that a university could violate Title IX antidiscrimination rules in one program but continue to receive federal funds for other programs. The same day the Court applied similar reasoning to Section 504.^[87] The logic of the two decisions also applied to several other antidiscrimination laws. As a result, a coalition of groups representing women, racial minorities, the

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elderly, and people with disabilities came together to support the Restoration Act. The coalition stuck together even when conservatives specifically attacked the disability provisions.^[88] The groups bonded further during the fight over the Fair Housing Amendments Act, which included a provision protecting disabled people from discrimination. Thus civil rights groups had become an important resource for the disability rights lobby. During debate over the ADA, disability leaders relied on the Leadership Conference's extensive experience with Congress and its access to members.^[89]

The ADA began life in Congress with many advantages—chief among them, broad bipartisan support and an enthusiastic president. The one major obstacle was the opposition of business groups, but this turned out to be surprisingly limited. In some areas, principally public transportation and food service, major controversies erupted over the bill's requirements. But on the general issue of disability discrimination, most business groups adopted the premises of the ADA and acquiesced in it from the beginning. The National Association of Manufacturers, the Chamber of Commerce, the Labor Policy Association, and the American Society of Personnel Administrators—the big business groups most involved in the ADA—worked to smooth the bill's edges rather than oppose it fundamentally. Among large-scale general business groups, only the National Federation of Independent Businesses (NFIB) and National Small Business United, both representing small business owners, opposed the ADA outright, and only the NFIB developed any kind of a critique of the rights model of disability.^[90] As an NFIB official said, there was an "awfully meager alliance" of business groups against the ADA.^[91]

One reason for business acquiescence of the ADA was that many larger corporations had learned to live with disability rights requirements because they were federal contractors and subject to 504; they did not fear the bill's impact. Many companies were probably concerned about the bad publicity that would result from opposing a bill to help people with disabilities. Finally, business interests accepted the ADA's premise that disabled people were a minority group deserving civil rights protections.^[92]

The business community's approach was also tactical. As the Senate was revising the ADA, the Bush administration let it be known that it was committed to passing the bill. Although the administration would work with business groups to address their concerns, it would not support outright attempts to block the ADA.^[93] The Bush administration's position meant that attempts to defeat the bill faced long odds. Consequently the

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vast majority of groups tried to modify rather than defeat the bill. In a memo to other business lobbyists, a Chamber of Commerce official concluded that bipartisan support for the ADA, together with President Bush's endorsement, "adds up to almost certain passage in one form or another." The memo invited the business lobbyists to join a working group "whose goal would be to help fashion legislation so that it is acceptable to the business community while addressing the needs of the disabled."^[94] This was the posture of most business groups throughout congressional consideration of the ADA.

The business lobbyists’ top priority was to limit the awards that ADA plaintiffs could win in court. Under the Civil Rights Act of 1964, plaintiffs in employment discrimination cases were eligible to win an injunction giving them back their jobs, back pay, and attorney's fees. Racial minorities, however, were not limited to the remedies in the 1964 Civil Rights Act. They could also sue under Section 1981 of the 1866 Civil Rights Act, a law that had collected dust on the books until it was revitalized during the modern civil rights movement. Section 1981 allowed injunctive relief, back pay, and attorney's fees, but it also gave plaintiffs the right to collect pain-and-suffering and punitive damages. These extra provisions created the possibility of very large verdicts—and made it easier for prospective plaintiffs to find lawyers willing to represent them. Women and religious minorities, not covered under Section 1981, were limited to the rewards of the Civil Rights Act of 1964.

The revised version of the ADA gave disabled plaintiffs in employment cases the same remedies as those in Section 1981. In cases involving discrimination in public accommodations, the remedies were tied to those available through the 1988 Fair Housing Amendments Act, which also made plaintiffs eligible for a full range of damages. For the business groups this was anathema; they feared a litigation explosion. Business groups were particularly fearful because under Section 1981 juries would decide discrimination cases, and it was expected that in jury trials people with disabilities would make extremely sympathetic plaintiffs. The threat of punitive damages in such cases inspired misgivings. Business lobbyists also complained that language in the ADA—"reasonable accommodation," "undue hardship," and "readily achievable"—was so vague as make compliance with the bill a guessing game and the jury trials a lottery. The uncertainties created by a regime of adversarial legalism—fluid and unpredictable interpretations of legal language made through the decentralized decision making of jurors—loomed large in the fears of business groups.

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The Bush administration took up the business groups’ demands in negotiations with Senate leaders. Attorney General Richard Thornburgh outlined the administration's view in testimony before the Senate Subcommittee on the Handicapped on June 22, 1989, a month after introduction of the revised ADA bill. Thornburgh pledged the administration's support for a comprehensive civil rights bill, but he urged that remedies and enforcement mechanisms in the bill should parallel those in the 1964 Civil Rights Act. Because "we are a litigious society," Thornburgh said, the administration was "merely making a plea for the tried and true remedies." The changes Thornburgh advocated eliminated the use of juries and the possibility of punitive or pain-and-suffering damages in ADA lawsuits. In addition, Thornburgh urged that the language of the bill parallel Section 504 as much as possible and that compromises be made to protect small businesses and transit systems.^[95]

Soon after Thornburgh's testimony, Harkin and Kennedy made a deal with the Bush administration. The essence of the deal was a trade on remedies. The senators agreed to cut back the scope of the remedies in exchange for a broader range of coverage than in previous civil rights laws. Remedies and enforcement procedures for employment discrimination in the ADA were tied to those in the Civil Rights Act, as the administration wanted. The only remedy available to those bringing public accommodations lawsuits was an injunction. This would make accommodations lawsuits much less attractive to plaintiff lawyers, who would not be able to collect a contingency fee based on monetary damages. The compromise included, however, a provision authorizing the attorney general to seek monetary damages on behalf of individuals harmed as a result of a "pattern or practice" of discrimination and to mete out fines of $50,000 for a first violation and $100,000 for additional violations.^[96] In exchange, the senators got broader coverage of businesses than in the Civil Rights Act. The 1964 act covered only restaurants, stores, gas stations, hotels, motels, theaters, and other places of entertainment. The revised bill expanded this to include a long list of businesses and institutions. Pharmacies, a major interest for people with disabilities, were included, along with such venues as lawyers’ offices, zoos, homeless shelters, and golf courses.^[97]

Bolstered by the administration's endorsement, the ADA reached the Senate floor three months later, on September 7, 1989. Harkin introduced the bill as a "landmark statement of basic human rights" that would also "help strengthen our economy and enhance our international

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competitiveness."^[98] These two themes—rights and economic productivity—dominated the debate. Concerns about the cost to business were expressed by a few Democrats, but the only outright opposition to the bill came from a handful of conservative Republicans. The ADA passed the Senate on a vote of 76 to 8.

The Remedies Fight in the House

Steny Hoyer, a Maryland Democrat, was assigned by the House leadership to refine the details of the ADA with Steve Bartlett, a Texas Republican. Bartlett, an ADA supporter, attempted to find a way to rectify the myriad complaints of business groups. These groups were particularly critical of what they considered vague language in the bill. Bartlett was sympathetic to business complaints but also frustrated by the inability of some business groups to offer constructive alternatives.^[99] Some of the proposals offered by NFIB were deemed politically infeasible. For instance, NFIB suggested that a "reasonable accommodation" in employment should cost no more than a certain percentage of an employee's wages. Bartlett opposed a ceiling on the cost of accommodations, however, because it could easily become a floor—employers, he feared, would spend up to the ceiling in order to put to rest fears of litigation. Moreover, such a ceiling was unacceptable to House Democrats and disability groups.^[100] Similarly, NFIB's suggestion that businesses with fewer than fifteen employees be exempted from the public accommodations section of the ADA was rejected out of hand.

After several months of negotiations, Bartlett and Hoyer produced a draft that made several concessions to business groups, including a longer phase-in for small businesses, deference to employers’ job descriptions in defining the "essential functions" of a job, and coordination of complaints filed under both the ADA and Section 504. The compromise also included language requiring courts to consider "site-specific factors" in determining whether an accommodation would create an "undue hardship" for an employer or whether it was "readily achievable." This meant that a court would decide whether an accommodation in a chain restaurant was an undue burden based on the financial condition of the particular location rather than the chain as a whole. Though slowed, the bill seemed to be moving ahead steadily.

Then an old issue resurfaced: remedies. In February of 1990 Senator Edward (Ted) Kennedy and Representative Augustus Hawkins introduced a bill amending the 1964 Civil Rights Act. The bill was designed to reverse six Supreme Court decisions on civil rights issues but also included a provision

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expanding the remedies available to plaintiffs under the Civil Rights Act. The Kennedy-Hawkins bill would have allowed plaintiffs in Civil Rights Act cases to collect compensatory and punitive damages. In addition, the bill allowed both defendants and plaintiffs to demand jury trials.^[101] As part of their deal with the White House, Kennedy and Harkin had tied to the ADA the same remedies and procedures as in the Civil Rights Act. Thus, if the amendments to the Civil Rights Act proposed by Kennedy and Hawkins were adopted, ADA plaintiffs would also be eligible for expanded remedies and jury trials. For the Bush administration, this changed the rules of the game. The limitations on remedies the administration thought it had negotiated earlier would be stripped away by the Kennedy-Hawkins measure. Accordingly, Thornburgh sought to delete from the ADA the reference to the Civil Rights Act of 1964, pleading that his original deal included only limited remedies.^[102]

Not surprisingly, those who had worked on the Senate side of the deal saw things differently. The point of the deal, they argued, was that ADA plaintiffs should be governed by the same set of remedies given other minority groups. If Congress chose to grant expanded remedies to women, religious minorities, and racial minorities, logic dictated that people with disabilities should get them too.^[103] Democrats in Congress, along with disability and civil rights groups, insisted on retaining the reference to the Civil Rights Act.

When the ADA reached the House floor, one of the last remaining issues was an amendment to restrict its remedies. In introducing the amendment, Wisconsin Republican F. James Sensenbrenner urged his colleagues to respect the terms of the deal and argued that, because the ADA was a new type of legislation, it should be treated differently from the Civil Rights Act. Most businesses had little experience with disability discrimination laws, Sensenbrenner argued, so the possibility of compensatory and punitive damages awards and jury trials "raises the stakes much higher without any corresponding increasing benefit to the disabled." Moreover, expanded remedies should be provided only after a thorough examination of the effects; Congress had not considered expanded remedies in the committee process on the ADA and was not likely to give them much thought during debate over the Kennedy-Hawkins bill.^[104]

Democrats who opposed the Sensenbrenner amendment had a simple response: people with disabilities should be treated the same as other oppressed groups. California Democrat Don Edwards charged that the amendment "provides for a two-tier system, where women and minorities get a better break than persons with disabilities."^[105] Colorado

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Democrat Pat Schroeder summed up the logic of this view when she argued that "there are no rights without remedies"; thus "you have lesser rights if you have lesser remedies."^[106]

Kansas Democrat Dan Glickman, in contrast, de-emphasized the importance of remedies, arguing that "rights and remedies are not the same thing" and that "a court of law should be the place of last resort, not first resort, to enforce civil rights." Glickman had added an amendment to the ADA urging that parties use arbitration instead of litigation to settle disability rights claims. Yet Glickman also argued that people with disabilities should not be locked into a weaker set of remedies. The argument over remedies, Glickman said, should be dealt with later, during consideration of the Kennedy-Hawkins bill.^[107] Glickman's view prevailed: the Sensenbrenner amendment was defeated 192 to 227. The vote split mostly along party and ideological lines, with Republicans supporting the amendment 146 to 24 and Democrats opposing it 46 to 203; conservative southern Democrats provided 36 of the 46 Democratic votes in favor. Aside from these conservative southerners, the Bush administration was unable to attract enough Democratic party defectors to limit remedies.

The House vote on the full bill was not nearly so close, 403 to 20. A conference committee of House and Senate representatives charged with reconciling differences between the two chambers’ versions of the bill became locked in struggle over the Chapman amendment, a provision enabling employers to remove persons with contagious diseases, including AIDS, from food-handling positions. In the end, however, the Chapman amendment was narrowly defeated, and both House and Senate passed the reconciled bill. With Evan Kemp and Justin Dart at his side, President Bush proudly signed the bill into law on July 26, 1990.

Remedies and the Civil Rights Act of 1991

The enactment of the ADA left the issue of remedies unresolved. Democrats in Congress had beaten back attempts to detach people with disabilities from remedies available through the 1964 Civil Rights Act. The pending Kennedy-Hawkins bill proposed to expand those remedies to allow plaintiffs in discrimination lawsuits to collect both pain-and-suffering and punitive damages. Remedies, however, became a secondary issue in the debate over the bill. Republicans, led by President Bush, focused on a provision that would have reversed a Supreme Court decision and reimposed a requirement that defendants in civil rights cases prove that employment practices that resulted in racially "disparate impacts" were a "business necessity." Bush and the Republicans claimed that businesses

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would sidestep this requirement by developing quotas to ward off discrimination lawsuits. Calling Kennedy-Hawkins a "quota bill," Bush vetoed the 1990 Civil Rights Act. An effort to override Bush's veto failed in the Senate by one vote.

The following year congressional Democrats reintroduced the bill. After a complex series of negotiations and some softening among Republicans in Congress on the bill, President Bush signed a compromise measure. The Civil Rights Act of 1991 for the first time allowed both pain-and-suffering and punitive damages but capped them in proportion to the size of the business involved. For employers of between 14 and 101 workers these damages could not exceed $50,000. The upper limit, for employers of more than 500, was $300,000. A special provision in the bill barred damages in "reasonable accommodation" cases under the ADA or the 1973 Rehabilitation Act if the defendant demonstrated a good-faith effort to comply. Nonetheless, the bill's passage meant that plaintiffs in ADA employment cases were eligible both for a jury trial and an expanded range of remedies, just as Republicans and business groups who supported the Sensenbrenner amendment had feared. The only major attempt to curb the litigious design of the ADA had largely failed.