Advocates Make Presence Felt at ADA Hearing as House Judiciary Committee.

The National Council on Independent Living

Subcommittee on the Constitution Considers Case for ADA Restoration For the first time in a number of years, on Wednesday, September 13, the House Judiciary Committee held an oversight hearing to assess the Americans with Disabilities Act (ADA) and its implementation. The setting was the Subcommittee on the Constitution, chaired by Steve Chabot (R-OH) and the subject was "The Americans with Disabilities Act: Sixteen Years Later." To the Committee's credit, House staff made the hearing an exemplary model of accessibility, by removing many chairs from the Judiciary Committee Hearing Room to make room for wheelchair-users, providing copies of testimony in large print and disk formats, offering real time captioning AND two sign-language interpreters, as well as providing assistive listening devices. Knowing that there was a great deal of interest in this hearing the Committee also provided a large overflow room with a closed circuit TV. NCIL had urged the disability community to be a strong presence at the ADA hearing.and you answered the call! Disability advocates showed up in force to send a clear message to our representatives that the "ADA is vital for the civil rights of people with disabilities!" Between NCIL members, Gallaudet students, DC staff of many disability rights organizations and ADAPT activists, the turnout was so impressive that we even filled the overflow room!

Though fewer Subcommittee members attended the hearing than we had hoped, observers on hand were impressed with the strong bipartisan acclaim for the ADA voiced by leadership on both sides of the aisle. In his statement, House Judiciary Chairman James Sensenbrenner (R-WI) declared that the ADA was a landmark civil rights law of similar importance to the transformative civil rights acts of the 1960's and added that the law means a great deal to him personally as his wife of 30 years has a disability. Congressman Bobby Scott (D-VA) expressed pride that Virginia had advanced the cause of the ADA by passing its own state disability rights legislation five years before Congress adopted the ADA. Trent Franks (R-AZ) shared that a quadriplegic who maintains his computer systems and handles social security casework is one of his most capable staffers. And Jerrold Nadler (D-NY) spoke passionately about the need to restore the ADA to its original intent so that persons with disabilities can realize similar gains in the employment sector to what we have achieved elsewhere.

The oversight hearing on the ADA examined both the successes it has brought about in achieving a more inclusive society, as well as the problem areas where the courts or other factors have undermined the law's original intent. Witnesses for the disability community included Tony Coehlo of the Epilepsy Foundation, as well as University of the District of Columbia Law Professor Robert Burgdorf, who was one of the drafters of the Americans with Disabilities Act and a chief contributor to the National Council on Disability's "Righting the ADA" report. Both Coehlo and Burgdorf celebrated how the ADA had advanced full participation of persons with disabilities in the mainstream of American society. However, they also decried a series of restrictive decisions by the federal courts on issues around definition of disability, "mitigating measures," and episodic disabilities beginning with Sutton vs. United Airlines, which had collectively undermined the coverage and effectiveness of Title I of the ADA - the part of the ADA that deals with employment discrimination.

Another witness was restaurateur Harry Horner of Julian California, who was introduced by ADA-Notification Act supporter Darrell Issa. Horner described a series of "drive-by lawsuits" filed against businesses in his town and stressed the need for small businesses to get more precise information as to what they need to do to comply with the law. Under close questioning by Nadler, it came out that the suits were probably filed under California law, as Title III of the ADA does not provide for compensatory damages. Though there was some mention of ADA Notification, a couple of members suggested Congress should make Title III stronger by providing for compensatory damages. Rounding out the panel new EEOC Chair Naomi Earp chronicled the work and accomplishments of the EEOC in educating businesses about the ADA's requirements and in enforcing Title I of the ADA. She also spoke briefly about the EEOC's new initiative, led by Commissioner Christine Griffin, to increase the employment of workers with disabilities in the federal government.

After the four witnesses gave their opening statements, the panel faced two rounds of questions from two Republican and two Democratic members.

The Judiciary Committee members' enthusiasm about the ADA was heartening and Professor Burgdorf was right on the mark when he said that the courts had never given the employment portion of the ADA - Title I - a chance to work. However, some of the questions asked by the committee went pretty far off topic. Furthermore, although the disability community witnesses had excellent prepared testimony and made some important points, the message in favor of ADA Restoration was not as clear, concise and compelling as it needs to be if we are to realize the promise of the ADA in the employment sector.

At its core, the fundamental injustice that Americans with Disabilities face is that we are the ONLY group that must prove we are entitled to protection under anti-discrimination laws BEFORE we can have our day in court to obtain redress for employment discrimination. Since federal courts require persons with disabilities to prove that we have a sufficiently disabling condition to satisfy the court before we are afforded the opportunity to enforce our rights to non-discrimination under the ADA, many persons with disabilities who should be covered have been turned away. No wonder that federal courts have summarily ruled against roughly 97% of plaintiffs in Title I ADA cases! If ADA Restoration is to succeed, the advocacy community needs to find a compelling message that motivates both legislators and the general public to see this as a wrong that must be righted.