Sharing the Dream: Is the ADA Accommodating All?


The U.S. Commission on Civil Rights (Commission) held a public hearing on the Americans with Disabilities Act (ADA) on November 12–13, 1998, in Washington, D.C.[1] The Commission originally analyzed disability discrimination in its 1983 report, Accommodating the Spectrum of Individual Abilities.[2] This report recognized that “there are spectrums of physical and mental abilities that range from superlative to minimal or nonfunctional.”[3] Accommodating the Spectrum was instrumental in bringing the “spectrum of abilities” concept into the mainstream of disability rights analysis.[4] The Commission’s report noted that the “handicapped-normal dichotomy”[5]—meaning there are “normal” people who can participate fully in society and there are people with physical and mental disabilities who cannot¾“is the wellspring of handicap discrimination.”[6] The 1983 report made the following official finding:

Historically, society has tended to isolate and segregate handicapped people. Despite some improvements, particularly in the last two decades, discrimination against handicapped persons continues to be a serious and pervasive social problem. It persists in such critical areas as education, employment, institutionalization, medical treatment, involuntary sterilization, architectural barriers, and transportation.[7]

When the ADA was enacted in 1990, it was considered a landmark statute. It marked the first comprehensive equal opportunity law for individuals with disabilities. Its intent is “to ensure that people with disabilities are given the basic guarantees for which they have worked so long and so hard: independence, freedom of choice, control of their lives, the opportunity to blend fully and equally into the rich mosaic of the American mainstream.”[8] Specifically, the ADA ensures (1) employers covered by the act cannot discriminate against qualified individuals with disabilities; (2) access to public accommodations and government services; (3) expanded access to transportation services; and (4) equivalent telephone services for people with speech or hearing impairments.[9]

The purpose of the Commission’s 1998 hearing was to investigate how the ADA was accomplishing its objective. The hearing was timely because there was significant discord among the federal Courts of Appeals regarding the impact of the ADA. There were also developing controversies as to the impact of an application for disability benefits on a person’s right to pursue an ADA claim, including whether blanket employment policies discriminating against whole classes of individuals with disabilities could be justified under the ADA; whether ADA’s nondiscrimination requirement mandated community versus institutionalized treatment for some individuals with disabilities; and whether the definition of disability included consideration of mitigating measures. The ADA was being heavily litigated, which, in effect, created more questions about the act’s intent and scope.

The Commission agreed to hear testimony on disability issues that were current and to some extent controversial, so that the Commission could meaningfully contribute to the national discourse on the ADA. The hearing topics were neither exhaustive nor demonstrative of the many ADA-related issues that warrant national attention. As the chairperson of the Commission, Mary Frances Berry, emphasized, “the resulting topics in no way reflect a diminishing of our interest in or commitment to equal rights for the disability community in all facets of American life.”[10] Because some of the issues are not as heavily disputed as they were at the time of the hearing, they are not included in this report.

Shortly following the hearing, the Supreme Court rendered several decisions interpreting the ADA, some directly addressing issues discussed by panelists. In the interest of producing a current and useful report, Commission staff has provided a summary of these decisions. In addition, as the hearing was being planned, a central issue was whether an asymptomatic HIV positive person was entitled to protection under the ADA. There was substantial litigation surrounding this issue because a person infected with HIV has not developed the most serious symptoms related to HIV infection. Indeed, an entire hearing panel was dedicated to the issue of AIDS/HIV and the ADA. Prior to the hearing, the Supreme Court in Bragdon v. Abbott[11] determined that HIV infection was a covered disability under the ADA.[12] In light of the Supreme Court’s unequivocal ruling, and despite the fact that this issue was the substance of testimony before the Commission, the topic of AIDS/HIV and the ADA is not addressed in this report.

The panelists testifying at the hearing provided valuable insight on their topics. The Commission appreciates the time and effort expended by all the panelists in helping produce an informative hearing and this report.

In the chapter that follows is a summary of the history of disability policy and the events leading to the ADA. Since the act’s provisions became effective, there has been ongoing disagreement over the success of the ADA and whether it has accomplished its mandate. Chapter 2 highlights the practical effects of the ADA on individuals with disabilities and businesses. The recent Supreme Court decisions and the flood of ADA cases in the lower courts warrant a discussion on the judicial trends in ADA enforcement, discussed in chapter 3. Substance abuse and the ADA is a critical issue as some companies have implemented hiring policies that discriminate against former substance abusers, who are typically covered under the ADA. Chapter 4 addresses issues surrounding these types of policies and the ADA coverage of substance abusers. Chapter 5 discusses psychiatric disabilities, a topic that has received much attention because of the increasing prevalence of these disabilities and the recent Supreme Court decision banning unjustified segregation of persons with psychiatric and mental disabilities. The final chapter sets forth the Commission’s findings and recommendations.

[1] Pub. L. No. 101-336, 104 Stat. 327 (codified at 42 U.S.C. §§ 12101–12213 (1994)).

[2] U.S. Commission on Civil Rights, Accommodating the Spectrum of Individual Abilities, 1983 (hereafter cited as Commission, Accommodating the Spectrum).

[3] Ibid., p. 87.

[4] Robert L. Burgdorf Jr., Disability Discrimination in Employment Law (Washington, D.C.: Bureau of National Affairs, 1995) p. 2.

[5] The term “handicapped” is used here because that was the term used in the Commission’s 1983 report.

[6] Commission, Accommodating the Spectrum, pp. 93–94.

[7] Ibid., p. 159.

[8] President George Bush’s Remarks on Signing the Americans with Disabilities Act of 1990, Public Papers of the Presidents of the United States, George Bush (Washington D.C.: National Archives and Records Administration, 1990), book 2, p. 1068.

[9] 42 U.S.C. §§ 12101–12213.

[10] Opening Remarks of Mary Frances Berry, chairperson, U.S. Commission on Civil Rights, Americans with Disabilities Hearing, Washington, D.C., Nov. 12–13, 1998, p. 2.

[11] Bragdon v. Abbott, 118 S. Ct. 2196 (1998).

[12] Id. at 2201.