Mcle Self-study: a Look Back: Title Vii, the Rehabilitation Act, and the Ada

• Publication year: 2015
• Author: by Jinny Kim

MCLE Self-study: A Look Back: Title VII, the Rehabilitation Act, and the ADA

by Jinny Kim

Jinny Kim is a Senior Staff Attorney in the Disability Rights Program at LAS-ELC. She joined LAS-ELC in 1999 as the Felix Velarde-Munoz Fellow. Thereafter, she was a Georgetown Women's Law and Public Policy Fellow where she served as Labor Counsel to Senator Edward Kennedy on the Committee for Health, Education, Labor and Pensions. Prior to returning to LAS-ELC in 2008, Ms. Kim held positions at the Asian Pacific Islander Legal Outreach, as well as Schneider, Wallace, Cottrell, Brayton and Konecky, and Goldstein, Demchak, Baller, Borgen & Dardarian.

Introduction

July 26, 2015 marked twenty-five years since the passage of the Americans with Disabilities Act (ADA). This landmark law prohibits discrimination against, and provides civil rights protections to, tens of millions of people with disabilities in employment and other areas such as public services, public accommodations, and telecommunication services. This article examines the influence of earlier civil rights laws on the origins and development of the ADA's employment provisions, including the ADA's hallmark that employers have an affirmative duty to provide "reasonable accommodation."

Disability Civil Rights Model

Following the civil rights movement in the 1960s, Title VII of the Civil Rights Act of 1964 (Title VII) was enacted, which made it unlawful for an employer to discriminate against any individual with respect to compensation and terms, conditions, or privileges of employment, because of the individual's race, color, religion, sex, or national origin.¹ Disability was not included as a protected category in Title VII, and in the 1970s, disability rights activists made several unsuccessful attempts to amend Title VII to include disability.

When the Rehabilitation Act of 1973 was enacted, it included section 504,² which, for the first time in history, protected the civil rights of people with disabilities and recognized disability as its own protected category. Section 504, which covers employment, prohibits discrimination in federal programs and services and by recipients of federal financial assistance: "[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."

After Congress enacted section 504, the Department of Health, Education and Welfare (HEW) was tasked with promulgating regulations, which were to become guidelines for all other federal agencies, including the Department of Transportation and the Department of Housing and Urban Development. However, for years, HEW did nothing. In response, disability rights activists mobilized various strategies such as letter writing campaigns, sit-ins (including a 28-day San Francisco sit-in), lawsuits, and hearings before Congress. Finally, on May 4, 1977, HEW issued regulations implementing section 504, which would later form the basis for the ADA.

In the 1980s, disability rights activists began to lobby for one broad civil rights statute to protect people with disabilities. Although section 504 was—and remains— landmark legislation, it has limited application, applicable only to federal agencies, federal employers, programs receiving federal financial assistance, and to the employment practices of federal contractors. The private sector remained largely unaffected.

Following extensive congressional hearings and broad bipartisan support, the ADA was signed into law on July 26, 1990. Its provisions apply to employment, state accommodations, public accommodations, and telecommunications.³ The groundbreaking law recognizes discrimination against people with disabilities in the non-governmental arena. Title I of the ADA addresses employment and provides that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions and privileges of employment."⁴

Structurally, Title I of the ADA parallels Title VII of the Civil Rights Act of 1964 and contains many of the same titles. Substantively, many terms in the ADA are derived directly from section 504 and its hard-fought regulations.

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Definition of Disability

The ADA's definition of disability⁵ borrows almost verbatim from the definition of "individual with a disability" in section 504.⁶ In the 1980s, courts' decisions interpreting the definition of "disability" under the Rehabilitation Act had been broad and inclusive, consistent with the remedial purposes of the legislation.⁷ Additionally, the "regarded as disabled" prong of the Rehabilitation Act had been broadly interpreted by the U.S. Supreme Court in School Board of Nassau County v. Arline to protect persons who were limited and discriminated against because of the "prejudice, stereotype, or unfounded fear" of others.⁸ By incorporating into the ADA virtually the same definition of disability contained in section 504, Congress intended a broad interpretation of disability.⁹

In terms of coverage, there are key and significant differences between the two historic laws. Title VII's protections against discrimination based on race, color, religion, national origin and sex do not define these protected categories and apply to employees...