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TESTIMONY OF MARCA BRISTO before the U.S. Commission on Civil Rights Chairperson Berry, Vice Chairperson Reynoso, and members of the Commission: Good Morning. Thank you for inviting me to appear before you this morning to discuss the history and scope of the Americans with Disabilities Act (ADA). As you know, the National Council on Disability (NCD), like the United States Commission on Civil Rights (the "Commission"), is charged by Congress with overseeing the implementation of ADA, along with other duties. As Chairperson of NCD, I appreciate this opportunity to share with the Commission some of NCD's perspectives on ADA. Likewise, as a person with a disability and a long-term advocate for the civil rights of all people with disabilities, I am happy to have a chance to kick off your two days of hearings. I am pleased to be joined today by my colleague, Professor Robert Burgdorf, who was a member of the NCD staff at the time ADA was conceived and enacted into law. It is worth noting that the original concept for ADA, announced in NCD's 1986 report Toward Independence, was developed under the leadership of 15 Reagan appointees to the Council. During the period preceding ADA's passage, I was a grass roots disability leader running a center for independent living in Chicago, which I still run. I also served as the President of the National Council on Independent Living and a member of the Task Force on the Rights and Empowerment of Americans with Disabilities in the years leading up to the law's passage. From my perspective, ADA was the result of unprecedented collaboration between leaders from different segments of the disability community, leaders in Congress on both sides of the aisle, and the Bush Administration. For a thorough discussion of the history of ADA, I recommend the NCD publication Equality of Opportunity: The Making of the Americans with Disabilities Act. I would like to make a few points in my opening statement, and look forward to your questions and comments. Let me begin by emphasizing that Congress and President Bush were moved to enact ADA as a result of the countless individual stories of disability discrimination that surfaced as the law was making its way through the legislature. The America that millions of people with disabilities faced before the enactment of ADA was often paternalistic, hostile, and/or ignorant about the needs and hopes of Americans with disabilities. Everyone with a disability had a story to tell about discrimination, and many of these stories were captured in "discrimination diaries" collected and submitted to the Congress under the leadership of Justin Dart. It is worth recalling a few stories to help paint a picture of the society that I and others with disabilities faced in the years prior to ADA:
I could go on and on. In my own case, a powerful lesson in discrimination occurred when I took my young son to see a brand new addition to the aquarium in Chicago in 1989. We came up to the penguin exhibit and discovered a flight of stairs that made it impossible for me to accompany my son up to the exhibit window. He ran on ahead to look at the penguins and blended into a crowd of people by the window. After a few minutes he began calling for me and I was unable to get to him. He got increasingly frightened and upset and finally was able to make his way back to me. I was angry with the aquarium for building an inaccessible new wing in violation of a local disability access law and I called the owner of the aquarium to complain. When I described what happened and pointed out the legal violation to the owner, he replied: "Miss Bristo, I hardly know what to say to you about your inability to care for your own child." The point of my story and the others I have recounted is that ADA would not have become law without a lot of individuals with disabilities making our voices heard and recognizing that our own experiences of exclusion, segregation and paternalism were shared by millions of other people with a wide variety of disabilities all around the country and throughout the world. In the Findings section of ADA, Congress noted:
This finding, enshrined in law by Congress and the President, amounted to a historic recognition that people with disabilities had not enjoyed the full benefits of American citizenship, and that it was time to do something about it. Rather than blame people with disabilities for their lot, and rather than offer excuses for why a civil rights law would be too expensive or impossible to enforce, Congress acted strongly and comprehensively to eradicate discrimination against the millions of Americans with disabilities in employment, state and local government services, public accommodations, transportation, and telecommunications. Congress also wrote the law to include a flexible definition of disability that included not only people with a physical or mental impairment that substantially limits at least one major life activity, but also people with a history of such impairments and people regarded by others or perceived as having such impairments. This definition, which came from the regulations interpreting section 504 of the Rehabilitation Act, was intentionally broad because Congress recognized that disability discrimination takes on lots of forms and Congress did not want to leave people inadvertently outside the law's protection. The broad definition was tempered by the requirement that the individual with a disability be "qualified" for the position or service he or she was seeking. The hallmark of ADA is that individuals be treated as individuals and not be forced to carry the burden of myths, fears and stereotypes others associate with their conditions. For people with disabilities, ADA is more than an anti-discrimination law. It is a symbolic statement that society will no longer look at us and see us as tragic cases to be fixed or warehoused. Senator Tom Harkin, one of the law's chief sponsors, has called it the "emancipation proclamation" for people with disabilities. The law is so groundbreaking that it has attracted the attention of people with disabilities and governments around the world. And yet, notwithstanding ADA's symbolic significance, people with disabilities recognize that ADA alone cannot transform the landscape of American public policy and magically remove every barrier that for decades has prevented too many people with disabilities from living the American dream-having a good job, owning a home, starting a family, sending our kids to college. ADA is a signpost, a turning point. The journey ahead continues to be uphill, but people with disabilities have rallied around ADA as the beacon that lights the path. At the time ADA was passed, the law's opponents complained that it would bankrupt businesses, hurt American competitiveness, produce an avalanche of lawsuits, and be a jobs program for lawyers. From NCD's perspective, these fears have not proven well-founded. The vast majority of employers, large and small, have chosen to comply with ADA not just because it is the law but also because it makes good business sense. Job applicants should be judged on their work experience and qualifications for the position, not on their diagnosis or medical history. When workplaces are made accessible, benefits accrue to all employees and all clients and customers, not just the employees with disabilities. As more and more employers recognize the value of flexible schedules, work-at-home policies, and other means of making the workplace more responsive to the needs of the people who work there, these advances make workplaces more accessible for people with disabilities as well. The Equal Employment Opportunity Commission's (EEOC's) enforcement statistics with regard to ADA are telling. The vast majority of charges are resolved without having to go to court. Moreover, ADA charges result in more "merit resolutions", whereby the charging party receives some benefit for having filed the charge, than the charges filed under any other statute enforced by the Commission. Many of ADA's terms are flexible and the federal courts are not in agreement about every issue under ADA. That is to be expected. Similarly, some people file frivolous claims and frivolous lawsuits under ADA, just as they do under other workplace laws. The justice system has ways of disposing of frivolous lawsuits, and these tools are being used effectively to dismiss ADA cases that lack merit. Unfortunately, many cases that have merit are also being dismissed inappropriately because some courts have taken the view that you cannot be qualified for a job and also apply for disability benefits. I know you are going to have a panel on judicial estoppel later today, but I want to take this opportunity to let you know that NCD is hopeful that the Cleveland case before the Supreme Court this term will resolve the issue in a manner consistent with the combined positions of the EEOC, Department of Justice, and Social Security Administration (SSA). As the D.C. Circuit found in the Swanks case, an application for disability benefits should not be construed as an admission that the applicant is not qualified to perform the essential functions of a particular position, with or without reasonable accommodation. SSA does not consider accommodations when evaluating an applicant's ability to engage in substantial gainful activity, and SSA's analysis is necessarily based on general assessments of job skills. Other courts have so narrowly construed the definition of disability in ADA that people with HIV disease, breast cancer, diabetes, epilepsy, and mental retardation have been found to fall outside the law's protection. Thankfully, the U.S. Supreme Court issued a ruling in Bragdon v. Abbott last term that found that a woman with "asymptomatic" HIV disease was protected against discrimination when a dentist refused to fill her cavity in his office. NCD is hopeful that the Bragdon decision will prompt the lower courts to analyze the definition of disability in a manner more in keeping with ADA's statutory language and the intent of Congress. NCD is currently conducting a study of the effectiveness of federal enforcement of ADA and three other civil rights laws for people with disabilities. Although our study has not been completed, I feel comfortable saying that NCD believes that EEOC, the Department of Justice, and the Department of Transportation, have all worked to interpret ADA in a common sense manner that is consistent with the statute and in the best interests of the broader society. NCD is concerned, however, that the resources for enforcement are inadequate to meet the demand for timely investigations and administrative relief. In addition, from the public hearings we have conducted, we are concerned that people with disabilities living in rural areas and racial and ethnic minorities with disabilities have not received sufficient outreach informing them of the law's protections and how to use those protections. NCD is excited about the budget increase recently received by EEOC, and we are hopeful that enforcement resources will continue to increase to meet the increased workload ADA has produced for federal civil rights enforcement agencies. In 1995, as the fifth anniversary of ADA approached, NCD traveled the country and asked people with disabilities whether the law was making a difference in the lives of real people with disabilities. The answer was a resounding YES. We captured the testimony we heard in a report called Voices of Freedom: America Speaks Out on the ADA. As one Wisconsin mom put it, "Before the ADA, I couldn't even shop with my daughter for her first prom dress. But things have changed, and I recently did shop with my daughter to buy clothes: for her job interview!" Notwithstanding NCD's perception of ADA's successes, we are painfully aware that ADA continues to have outspoken critics. These critics typically string together isolated and misleading anecdotes about how the law has been abused and draw general conclusions about the impact the law is having. One common theme is that the "wrong" people are benefitting from the law, which is usually a shorthand for referring to anyone other than people in wheelchairs, blind people and deaf people. Another common theme is that businesses and state and local governments have been forced to pay extraordinary costs to accommodate one unworthy employee or customer. To the extent that arguments like these surface over the course of the next two days, I would encourage the Commissioners to ask probing questions to ascertain all of the facts and the scope of the problem being identified. From my perspective, people with disabilities are experiencing a backlash not unlike the backlash experienced by women and ethnic and racial minorities. Susan Faludi, a feminist author, refers to the subtle disguises of the backlash. If we do not recognize them, they will divide and conquer us, breaking us up, pitting us against each other, isolating one disability group only to attack the next. We see that happening today: people with HIV, people with substance abuse issues, people with psychiatric disabilities are singled out for scrutiny. Old myths are remarketed as if they were new truths, and we return again and again to face the very attitudes we have been working so hard to dispel. I think the best explanation for the backlash against ADA is that society is adjusting to the new paradigm of disability rights. Once the adjustment is complete, the critics will be smaller in number and much less visible. We in the disability rights movement have learned from our heroes in the broader civil rights movement that our goal must be not only to end segregation but to create and foster integration within a truly supportive community. Martin Luther King reminded us of this when he said:
Let me close by returning to the Findings section of ADA, where Congress stated:
Although these goals were articulated in ADA, the statutory requirements of ADA alone are not enough to achieve these goals. The work disincentives in our Social Security, Medicaid, Medicare, and publicly-funded housing assistance programs, combined with inaccessible technological, architectural and transportation infrastructures, compounded by deficiencies in the education levels and work experience levels of too many Americans with disabilities, call attention to the need for a multi-pronged approach to increasing the employment and independence of people with disabilities. President Clinton recognized this when he signed an Executive Order last March creating the Presidential Task Force on Employment of Adults with Disabilities. I am honored to serve on that Task Force and look forward to working with my colleagues in the government to transform public policy in a manner which achieves ADA's lofty goals. Thanks again for inviting me and for devoting attention to ADA. As my good friend and mentor Justin Dart has said, "the world is watching." HOME | FAQs | NEWSROOM | SITE MAP | FEDERAL AGENCIES | RESOURCES |
