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**Sharingthe Dream: Is the ADA Accommodating All?**

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**ExecutiveSummary**

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TheU.S. Commission on Civil Right�s (Commission) report S*haring the Dream: Isthe ADA Accommodating All?* is timely and significant because it comes duringthe nation�s designated month for recognizing individuals with disabilitiesand as we celebrate the 10-year anniversary of the Americans with DisabilitiesAct. This report is the product of a two-day hearing conducted by the Commissionon November 12�13, 1998, in Washington, D.C.

Afterproviding a historical context for its passage, this report analyzes the goalsintended for the ADA and discusses the law�s practical impact on those it wasintended to protect, the agencies responsible for enforcing the law, and thebusinesses it affects. Sadly, the report demonstrates how the Supreme Court�srecent narrow construction of the ADA�s coverage obscures its vision, whichwas to provide a clear and comprehensive national mandate for the elimination ofdiscrimination against individuals with disabilities. The report also addressesseveral areas that have generated debate and disagreement as to the propercoverage of the ADA�issues of substance abuse and the coverage of psychiatricdisabilities. 

Mostimportantly, the report provides concrete recommendations aimed at ensuring theADA�s vision is reached, while recognizing the legitimate concerns ofbusinesses in how the vision is achieved. These recommendations include:

-  restoring    the intended vision of the ADA;providing    adequate resources to those agencies charged with enforcing its provisions;enhancing    education for individuals and businesses as to rights and responsibilities    created by the ADA;providing    further incentives through the Social Security Administration for    individuals with disabilities to return to the work force; and                                    providing    economic incentives for businesses that make facilities accessible or    accommodate individuals with disabilities. 
TheCommission 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 toaddress some of the significant issues raised by the ADA. 

Atthe time the Commission heard testimony on the ADA, the Supreme Court had givenlimited direction on the ADA. Indeed, in the eight years since the ADA�spassage until the time the Commission requested testimony on the ADA, theSupreme Court only decided two cases. Since that time, the Supreme Court issuedsix decisions, some directly addressing issues discussed by the panelists. Thisreport is limited by what was presented at the hearing, but the Commission wouldbe remiss if it did not address the impact of these Supreme Court decisions onthe issues discussed at the hearing.

**Chapter1: The Road to the ADA**

Thisreport first chronicles the move from a medical/charity model for society�streatment of individuals with disabilities to a civil rights model.Historically, our nation�s disability policies were premised on amedical/charity model where a person�s disability was to be addressed bydoctors and other professionals who were to �fix� or �cure� theindividual. If they could not be cured, then the individual may be entitled tosome type of �charitable� benefit. With the passage of the ADA, our nationmoved from this medical/charity model to a civil rights model that attempts toprovide a level playing field for individuals with disabilities by securing theright of access to, and independence in, all aspects of society. The ADA, whichwas signed into law on July 26, 1990, is a comprehensive civil rights lawseeking to ban discrimination against individuals with disabilities by ensuringequality of opportunity, full participation in government services and publicaccommodations, independent living, and economic self-sufficiency.

**Chapter2: The Effects of the ADA**

Thetestimony heard at the ADA hearing showed that individuals with disabilitiesbelieve that the ADA has made a great difference in their lives. This isreflected by their increased level of participation in mainstream Americansociety, including better access to buildings, fuller inclusion in thecommunity, and greater access to transportation. Since the passage of the ADA,the public is more sensitive to and aware of people with disabilities. Despitethis progress, individuals with disabilities still continue to facediscrimination and difficulty in overcoming barriers that prevent them fromfully participating in mainstream American society, particularly in the areas ofemployment, access to medical benefits, and access to public transportation.

*AccommodatingAll?* Acknowledges that the ADA is similar to other laws, including civilrights laws aimed at remedying discrimination based upon unjustifiedstereotypical beliefs, and has costs associated with protecting the civil rightsof those it is intended to protect. Contrary to the misconceptions some had atthe time of its enactment, there are not significant costs in complying with thereasonable accommodation provisions of the ADA. While there was testimony aboutconcerns of costly litigation created by the ADA, there was no empiricalevidence presented substantiating these concerns. Nor was it shown that therehave been a significant number of frivolous cases filed under the ADA. Indeedthere was no credible evidence presented that it was any more expensive tocomply with the ADA�s nondiscrimination provisions than it is to comply withother civil rights laws aimed at protecting individual civil rights.

Onearea in which there was substantial testimony at the ADA hearing was theinteraction between the ADA and the receipt of Social Security disabilitybenefits. The report concludes that the Social Security Administration (SSA)does not take into consideration the ADA�s requirement of reasonableaccommodation in determining continuing eligibility for disability benefits,which can discourage individuals with disabilities from re-entering the workforce. Further, many federal disability beneficiaries are not made aware of theSocial Security work incentives, which are intended to encourage them to returnto work. The Commission�s recommendations in this area are intended to provideadditional incentives to individuals who desire to move from reliance on SocialSecurity benefits to be self-sufficient. 

**Chapter3: Judicial Trends in ADA Enforcement**

Ina series of decisions rendered after the Commission�s hearing, the SupremeCourt both obscured the nation�s vision for the ADA as expressed by Congressand refused to give deference to the extensive guidance issued by the federalagencies charged by Congress with enforcing the ADA. These decisionssignificantly curtailed the coverage of the ADA. These decisions will not onlycause unnecessary litigation, but most importantly will also leave manyindividuals with disabilities intended to be covered by the ADA without legalrecourse. For example, based upon the Supreme Court majority�s myopic view ofthe ADA, individuals who were clearly intended to be covered by theADA�individuals with conditions like epilepsy, diabetes, and cancer�arebeing denied their day in court. The Commission sees no other recourse but forCongress to reaffirm the meaning and intent of the ADA and to clarify theintended coverage of the law.

TheSupreme Court decision in another significant ADA case recognized the conflictin purposes between the ADA and the Social Security Act and held thatindividuals are not automatically barred from suing under the ADA simply becausethey claimed an inability to work in an application for Social Securitydisability benefits. Despite recognizing the difference in purpose between theADA and the Social Security Act, the courtstill allows employers to demand an explanation from individuals for thebasis of their claim for disability benefits. This, unfortunately, invitescontinued litigation over this issue.

**Chapter4: Substance Abuse Under the ADA**

TheCommission also heard testimony on the issue of substance abuse and the ADA. Thesocial and economic costs of substance abuse in America are staggering. It isestimated that the cost of alcohol and drug abuse for 1995 was $276.4billion�$166.5 billion for alcohol abuse and $109.8 billion for drug abuse.The ADA, however, currently does not mandate that private industry offerprograms, such as employee assistance programs (EAPs), to assist workers withsubstance abuse problems. In an effort to curtail these wasted costs and balancethe legitimate interests of employers, the Commission recommends thatinformation be made available to employers by EEOC and DOJ on the economicbenefits that are derived from establishing EAPs or similar programs. Asimportant as education, the Commission also believes Congress should provideappropriate tax incentives for the establishment of EAPs and similar programswithin private industry.

Testimonyat the ADA hearing also showed that employers and courts struggle with theADA�s definition of �current� drug user. This is an important issuebecause �current� users are expressly excluded from ADA protection. TheEEOC�s interpretive guidance and discussion in its technical assistancemanual, which requires a case-by-case analysis of �current� use, whilehelpful, does not set forth any definitive standards under which an employer canmake this interpretation. Here the Commissionrecommends that EEOC, after consulting with stakeholders, offer specific and detailedguidance in defining what is a �current� drug user.

**Chapter5: Psychiatric Disabilities and the ADA**

Afinal area examined at the ADA hearing was the ADA�s coverage of psychiatricdisabilities. Those testifying explained that the ADA initially focused onaccommodating individuals with physical disabilities, with individuals withpsychiatric disabilities largely ignored until discrimination charges based onmental impairments became the largest source of ADA charges filed with the EEOC.At the time of the Commission�s ADA hearing, the EEOC�s psychiatricenforcement guidance had just been issued. The issuance of these guidelinessparked a national media firestorm highlighted by editorials paintingnightmarish 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 20/20and these concerns were unfounded. In fact, as the Commission report discusses,employers were subject to almost similar disability requirements under the 1973Rehabilitation Act. Instead of Freddy Kruger wreaking havoc on employers,EEOC�s psychiatric enforcement guidance provides useful guidance and examplesof how the ADA should work for employers confronting employment-related issuesinvolving individuals with psychiatric disabilities. Equally important, theseguidelines are being relied upon by employers and the courts.

TheSupreme Court in another ADA case recognized that �unjustified isolation� ofindividuals with disabilities in institutions is unlawful discrimination. TheCommission report explains that this goal of the ADA with respect to individualswith mental disabilities is best summarized by the Department of Justice (DOJ)regulations mandating that public entities administer services, programs, andactivities that place individuals with mental disabilities in the mostintegrated settings appropriate for their needs.These regulations were validated by the Supreme Court, which establishedstandards by which public entities must provide for the integration ofindividuals with mental disabilities into community-based settings. While stateand local agencies now**express an intent to work toward the integrationof individuals with mental disabilities into society, the Commission reportconcludes that state and local governments generally have not committed thepersonnel resources or the funds necessary to integrate individuals with mentaldisabilities or multiple disabilities, which include mental disabilities, intosociety in a manner that is truly meaningful and productive.

Toaccomplish this goal of integration into the community, the Commission urgesDOJ, SSA, and other federal agencies to promulgate regulations that complementeach other and in turn force public entities to establish written policies thathave clear, objective, and fair standards by which individuals with mentaldisabilities may be integrated into community-based settings that are mostappropriate for their needs.

TheCommission report also recognizes that law enforcement departments across thenation have taken strides toward improving the services provided to individualswith disabilities who are both the victims and suspects of crime.Even with this work, problems remain in the interactions between police andindividuals with mental disabilities. Somelaw enforcement departments have worked toward complying with the ADAwith respect to individuals with mental disabilities by providing trainingclasses and training videotapes. To fully succeed in this area, the Commissionrecommends that Congress provide additional funding to DOJ to allow it toincrease its technical assistance tools, including offering nationwide trainingof officers in how to interact with individuals with mental disabilities. Thistraining should include how to recognize, approach, and interact withindividuals with mental disabilities and should include videos and simulationsdeveloped in conjunction with disability advocacy groups. 

**Findingsand Recommendations**

Thefinal chapter of this report provides a series of recommendations aimed ataddressing issues interfering with accomplishing the ADA vision and preventingindividuals with disabilities from truly becoming part of the fabric of thissociety. These recommendations are balanced and run the gamut from increasededucation, to more focused enforcement of the ADA by the federal agenciescharged with enforcing the ADA, to tax breaks for businesses that proactivelyembrace the ADA, to congressional action needed to reconfirm the statute�sintent and vision.

Whenthe ADA was signed into law, it was proclaimed, �Together, we must remove thephysical 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 allcontinue this effort. This report is but one step in the direction of sharingthe 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.