Sharing the Dream: Is the ADA Accommodating All?

Executive Summary

The U.S. Commission on Civil Right's (Commission) report Sharing the Dream: Is the ADA Accommodating All? is timely and significant because it comes during the nation's designated month for recognizing individuals with disabilities and as we celebrate the 10-year anniversary of the Americans with Disabilities Act. This report is the product of a two-day hearing conducted by the Commission on November 12 13, 1998, in Washington, D.C.

After providing a historical context for its passage, this report analyzes the goals intended for the ADA and discusses the law's practical impact on those it was intended to protect, the agencies responsible for enforcing the law, and the businesses it affects. Sadly, the report demonstrates how the Supreme Court s recent narrow construction of the ADA's coverage obscures its vision, which was to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities. The report also addresses several areas that have generated debate and disagreement as to the proper coverage of the ADA issues of substance abuse and the coverage of psychiatric disabilities.

Most importantly, the report provides concrete recommendations aimed at ensuring the ADA's vision is reached, while recognizing the legitimate concerns of businesses in how the vision is achieved. These recommendations include:

The Commission hearing was not intended to offer an exhaustive analysis of the ADA, nor is this report. Instead the hearing was, and this report is, intended to address some of the significant issues raised by the ADA.

At the time the Commission heard testimony on the ADA, the Supreme Court had given limited direction on the ADA. Indeed, in the eight years since the ADA s passage until the time the Commission requested testimony on the ADA, the Supreme Court only decided two cases. Since that time, the Supreme Court issued six decisions, some directly addressing issues discussed by the panelists. This report is limited by what was presented at the hearing, but the Commission would be remiss if it did not address the impact of these Supreme Court decisions on the issues discussed at the hearing.

Chapter 1: The Road to the ADA

This report first chronicles the move from a medical/charity model for society s treatment of individuals with disabilities to a civil rights model. Historically, our nation's disability policies were premised on a medical/charity model where a person's disability was to be addressed by doctors and other professionals who were to fix or cure the individual. If they could not be cured, then the individual may be entitled to some type of charitable benefit. With the passage of the ADA, our nation moved from this medical/charity model to a civil rights model that attempts to provide a level playing field for individuals with disabilities by securing the right of access to, and independence in, all aspects of society. The ADA, which was signed into law on July 26, 1990, is a comprehensive civil rights law seeking to ban discrimination against individuals with disabilities by ensuring equality of opportunity, full participation in government services and public accommodations, independent living, and economic self-sufficiency.

Chapter 2: The Effects of the ADA

The testimony heard at the ADA hearing showed that individuals with disabilities believe that the ADA has made a great difference in their lives. This is reflected by their increased level of participation in mainstream American society, including better access to buildings, fuller inclusion in the community, and greater access to transportation. Since the passage of the ADA, the public is more sensitive to and aware of people with disabilities. Despite this progress, individuals with disabilities still continue to face discrimination and difficulty in overcoming barriers that prevent them from fully participating in mainstream American society, particularly in the areas of employment, access to medical benefits, and access to public transportation.

Accommodating All? Acknowledges that the ADA is similar to other laws, including civil rights laws aimed at remedying discrimination based upon unjustified stereotypical beliefs, and has costs associated with protecting the civil rights of those it is intended to protect. Contrary to the misconceptions some had at the time of its enactment, there are not significant costs in complying with the reasonable accommodation provisions of the ADA. While there was testimony about concerns of costly litigation created by the ADA, there was no empirical evidence presented substantiating these concerns. Nor was it shown that there have been a significant number of frivolous cases filed under the ADA. Indeed there was no credible evidence presented that it was any more expensive to comply with the ADA's nondiscrimination provisions than it is to comply with other civil rights laws aimed at protecting individual civil rights.

One area in which there was substantial testimony at the ADA hearing was the interaction between the ADA and the receipt of Social Security disability benefits. The report concludes that the Social Security Administration (SSA) does not take into consideration the ADA's requirement of reasonable accommodation in determining continuing eligibility for disability benefits, which can discourage individuals with disabilities from re-entering the work force. Further, many federal disability beneficiaries are not made aware of the Social Security work incentives, which are intended to encourage them to return to work. The Commission's recommendations in this area are intended to provide additional incentives to individuals who desire to move from reliance on Social Security benefits to be self-sufficient.

Chapter 3: Judicial Trends in ADA Enforcement

In a series of decisions rendered after the Commission's hearing, the Supreme Court both obscured the nation's vision for the ADA as expressed by Congress and refused to give deference to the extensive guidance issued by the federal agencies charged by Congress with enforcing the ADA. These decisions significantly curtailed the coverage of the ADA. These decisions will not only cause unnecessary litigation, but most importantly will also leave many individuals with disabilities intended to be covered by the ADA without legal recourse. For example, based upon the Supreme Court majority's myopic view of the ADA, individuals who were clearly intended to be covered by the ADA individuals with conditions like epilepsy, diabetes, and cancer are being denied their day in court. The Commission sees no other recourse but for Congress to reaffirm the meaning and intent of the ADA and to clarify the intended coverage of the law.

The Supreme Court decision in another significant ADA case recognized the conflict in purposes between the ADA and the Social Security Act and held that individuals are not automatically barred from suing under the ADA simply because they claimed an inability to work in an application for Social Security disability benefits. Despite recognizing the difference in purpose between the ADA and the Social Security Act, the court still allows employers to demand an explanation from individuals for the basis of their claim for disability benefits. This, unfortunately, invites continued litigation over this issue.

Chapter 4: Substance Abuse Under the ADA

The Commission also heard testimony on the issue of substance abuse and the ADA. The social and economic costs of substance abuse in America are staggering. It is estimated that the cost of alcohol and drug abuse for 1995 was $276.4 billion $166.5 billion for alcohol abuse and $109.8 billion for drug abuse. The ADA, however, currently does not mandate that private industry offer programs, such as employee assistance programs (EAPs), to assist workers with substance abuse problems. In an effort to curtail these wasted costs and balance the legitimate interests of employers, the Commission recommends that information be made available to employers by EEOC and DOJ on the economic benefits that are derived from establishing EAPs or similar programs. As important as education, the Commission also believes Congress should provide appropriate tax incentives for the establishment of EAPs and similar programs within private industry.

Testimony at the ADA hearing also showed that employers and courts struggle with the ADA s definition of current drug user. This is an important issue because current users are expressly excluded from ADA protection. The EEOC's interpretive guidance and discussion in its technical assistance manual, which requires a case-by-case analysis of current use, while helpful, does not set forth any definitive standards under which an employer can make this interpretation. Here the Commission recommends that EEOC, after consulting with stakeholders, offer specific and detailed guidance in defining what is a current drug user.

Chapter 5: Psychiatric Disabilities and the ADA

A final area examined at the ADA hearing was the ADA's coverage of psychiatric disabilities. Those testifying explained that the ADA initially focused on accommodating individuals with physical disabilities, with individuals with psychiatric disabilities largely ignored until discrimination charges based on mental impairments became the largest source of ADA charges filed with the EEOC. At the time of the Commission's ADA hearing, the EEOC's psychiatric enforcement guidance had just been issued. The issuance of these guidelines sparked a national media firestorm highlighted by editorials painting nightmarish scenarios of manipulative substandard employees, headlines such as employers are terrified, and cartoons of a nightmare on elm street type character, as applicants protected by the ADA. As usual, hindsight is 20/20 and these concerns were unfounded. In fact, as the Commission report discusses, employers were subject to almost similar disability requirements under the 1973 Rehabilitation Act. Instead of Freddy Kruger wreaking havoc on employers, EEOC s psychiatric enforcement guidance provides useful guidance and examples of how the ADA should work for employers confronting employment-related issues involving individuals with psychiatric disabilities. Equally important, these guidelines are being relied upon by employers and the courts.

The Supreme Court in another ADA case recognized that unjustified isolation of individuals with disabilities in institutions is unlawful discrimination. The Commission report explains that this goal of the ADA with respect to individuals with mental disabilities is best summarized by the Department of Justice (DOJ) regulations mandating that public entities administer services, programs, and activities that place individuals with mental disabilities in the most integrated settings appropriate for their needs. These regulations were validated by the Supreme Court, which established standards by which public entities must provide for the integration of individuals with mental disabilities into community-based settings. While state and local agencies now express an intent to work toward the integration of individuals with mental disabilities into society, the Commission report concludes that state and local governments generally have not committed the personnel resources or the funds necessary to integrate individuals with mental disabilities or multiple disabilities, which include mental disabilities, into society in a manner that is truly meaningful and productive.

To accomplish this goal of integration into the community, the Commission urges DOJ, SSA, and other federal agencies to promulgate regulations that complement each other and in turn force public entities to establish written policies that have clear, objective, and fair standards by which individuals with mental disabilities may be integrated into community-based settings that are most appropriate for their needs.

The Commission report also recognizes that law enforcement departments across the nation have taken strides toward improving the services provided to individuals with disabilities who are both the victims and suspects of crime. Even with this work, problems remain in the interactions between police and individuals with mental disabilities. Some law enforcement departments have worked toward complying with the ADA with respect to individuals with mental disabilities by providing training classes and training videotapes. To fully succeed in this area, the Commission recommends that Congress provide additional funding to DOJ to allow it to increase its technical assistance tools, including offering nationwide training of officers in how to interact with individuals with mental disabilities. This training should include how to recognize, approach, and interact with individuals with mental disabilities and should include videos and simulations developed in conjunction with disability advocacy groups.

Findings and Recommendations

The final chapter of this report provides a series of recommendations aimed at addressing issues interfering with accomplishing the ADA vision and preventing individuals with disabilities from truly becoming part of the fabric of this society. These recommendations are balanced and run the gamut from increased education, to more focused enforcement of the ADA by the federal agencies charged with enforcing the ADA, to tax breaks for businesses that proactively embrace the ADA, to congressional action needed to reconfirm the statute s intent and vision.

When the ADA was signed into law, it was proclaimed, Together, we must remove the physical barriers we have created and the social barriers that we have accepted. For ours will never be a truly prosperous nation until all within it prosper. [1] Ten years after its enactment, those words remain true. Together we must all continue this effort. This report is but one step in the direction of sharing the dream and accommodating all!

[1] 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. 1071.