BACKGROUND ON THE AMERICANS WITH DISABILITIES ACT

The Americans with Disabilities Act, which was designed to outlaw discrimination based on disability, is the most comprehensive civil rights legislation for people with disabilities in the United States. Its intellectual predecessors are the Civil Rights Act of 1964 and Section 504 of the Rehabilitation Act of 1973. The ADA ended up using Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating against people based on race, sex, national origin, or religion, as a model of enforcement.Footnote ¹ The Civil Rights Act of 1964 did not initially extend protections to people with disabilities.Footnote ²

The Rehabilitation Act of 1973 was the first major piece of legislation that addressed discrimination against people with disabilities in education, employment, and access to society.Footnote ³ Access to society refers to people with disabilities being able to use public facilities, transportation, and the services of private businesses. The Rehabilitation Act of 1973 was also responsible for putting disabilities within the legal context of civil rights.Footnote ⁴ Section 504 of the Rehabilitation Act banned discrimination based on disability only in cases where federal appropriations and grants were involved.Footnote ⁵ This meant that these protections did not extend to the private sector unless federal funds were involved in that company’s work.

Toward the end of the Reagan administration, Congress ordered the National Council on Disability to evaluate the situation of people with disabilities by reviewing “all laws, programs, and policies of the federal government that affected individuals with disabilities.”Footnote ⁶ An initial report was submitted to President Reagan in 1986.Footnote ⁷ The report’s recommendations for comprehensive legislation ended up becoming the basis for the Americans with Disabilities Act.Footnote ⁸ A first attempt at comprehensive legislation for civil rights with people with disabilities was introduced by Senator Lowell Weicker of Connecticut, but that version did not have enough support to become law and Senator Weicker was defeated for reelection in 1988.Footnote ⁹ Senator Tom Harkin of Iowa, the new chairman of the Senate Subcommittee on disability policy, worked with disability rights activists to revise Senator Weicker’s version of the bill to get more political support for the bill.Footnote ¹⁰

The Americans with Disabilities Act was able to move forward during the Bush Administration for political and personal reasons. According to President Bush’s General Counsel, C. Boyden Gray, Lee Atwater’s support for the ADA was critical in persuading the Bush White House to pursue it as a policy goal. Atwater, President Bush’s top political advisor, saw the ADA as a way to win votes in the 1992 election. Atwater also saw the ADA as passable legislation due to the support of the ADA from Congressional leaders of both parties.Footnote ¹¹ Democrats supported the ADA due to their party’s support for expanded civil rights protections.Footnote ¹² Attorney General Richard Thornburgh said that he was able to persuade Republicans in Congress to support the ADA by having it focus on antidiscrimination and empowerment instead of including civil rights provisions that were objectionable to Republicans such as quotas.Footnote ¹³ Disability rights activists were also unified in their support for comprehensive civil rights legislation instead of civil rights legislation that only addressed some forms of disability, such as legislation for blind people.Footnote ¹⁴

Gray also said that multiple members of the Bush Administration, including President Bush, were motivated by relatives’ challenges with disabilities. President Bush’s son, Neil, is dyslexic.Footnote ¹⁵ President Bush also credited his strong relationships with disability rights activists such as Justin Dart, the chairperson of the Congressional Task Force on the Rights and Empowerment of Americans with Disabilities, and Evan Kemp, who was appointed to the Equal Employment Opportunity Commission, as reasons that the ADA was able to move forward during his administration.Footnote ¹⁶ Members of Congress also had personal reasons to support the ADA. Senator Tom Harkin of Iowa, the new chairman of the Senate Subcommittee on Disability Policy, had a brother who was deaf.Footnote ¹⁷ Senator Ted Kennedy of Massachusetts had a son who lost a leg to cancer.Footnote ¹⁸ These personal experiences were important because many members of Congress were not aware or understanding of the challenges that people with disabilities faced.Footnote ¹⁹

BACKGROUND ON THE ADA’S OPPONENTS AND THE BASIS FOR THEIR OPPOSITION

Business interests were part of the Republican coalition in the realignment after World War II.Footnote ²⁰ Business interests got tax reductions and reduced regulations in exchange for political support of Republicans.Footnote ²¹ Business interests remained within the Republican coalition when conservative evangelicals were added to the Republican coalition. Business interests were willing to give conservative evangelicals their say on their policy priorities because business interests still received tax reductions and regulatory rollbacks.

Prior to the election of 1980, conservative evangelicals did not have as long of a history of being politically active or being a member of the Republican coalition. In 1980, the plurality of conservative evangelicals self-identified as Democrats.Footnote ²² By 1984, conservative evangelicals self-identified as Republicans due to their support of the Reagan administration and Reagan’s conservative social policies.Footnote ²³ The partisan shift for evangelicals was greater than that for the population as a whole, which suggests that evangelicals became politically activated during the Reagan administration.Footnote ²⁴ The 1986 midterm elections and sex scandals involving televangelists put into question whether evangelicals would remain a political force for the Republican Party in 1988, but conservative evangelicals turned out to elect then-Vice President George Bush.Footnote ²⁵

Conservative evangelical voters were influenced by organizations such as Pat Robertson’s Christian Coalition of America. The Christian Coalition of America worked to register voters who shared their beliefs on policy issues such as abortion, homosexuality, and HIV. The Christian Coalition of America also distributed voting guides to inform members of the stances of the candidates running.Footnote ²⁶ Although the Christian Coalition of America did not explicitly endorse candidates in order to maintain the organization’s nonprofit status, the organization’s activities helped conservative Republicans like Congressman William Dannemeyer of California get elected.Footnote ²⁷ Congressman Dannemeyer argued that people with HIV should be forcibly quarantined if they intentionally spread bodily fluids.Footnote ²⁸ Dannemeyer also called for mandatory testing for HIV before routine life events such as getting married and getting hired for certain jobs.Footnote ²⁹ Although Dannemeyer’s views were not shared by the Reagan administration, analysis of nationally representative polling data from the Los Angeles Times taken between 1985 and 1987 found substantial support among members of the general public for more restrictive policies to prevent the spread of HIV. For example, the polling in 1985 found that 51% of respondents supported forcibly quarantining people who had tested positive for HIV.Footnote ³⁰ People who believed misinformation about HIV were more likely to support more restrictive policies targeting people who had tested positive for HIV.Footnote ³¹

Although the Republican coalition of business interests, ideological conservatives, and conservative evangelicals that had supported Ronald Reagan put Vice President George H. W. Bush in the White House in the election of 1988, Democrats controlled both houses of Congress. During the first half of President Bush’s first term, the Democrats held 260 of the 435 seats in the House and 55 of the 100 seats in the U.S. Senate.Footnote ³² This meant that the Republican coalition did not have complete control over the drafting of the ADA or the legislative process. The ADA did have bipartisan support and had bipartisan cosponsors.Footnote ³³ Although the bill’s opponents were predominantly Republicans, a few opponents were southern Democrats who had political loyalties to business interests or conservative evangelicals. Although members of Congress were capable of holding political loyalties to both business interests and conservative evangelicals, they were forced to choose a legislative strategy to address the ADA that was consistent with either business interests (amending the bill to make it more acceptable) or conservative evangelicals (amending the bill to make it unacceptable).

Democratic control of Congress and bipartisan support for the bill did not mean that opponents had no influence over the ADA. Members of Congress who supported the bill, such as Senator Tom Harkin, a Democrat from Iowa, made it a deliberate strategy to work with the critics of the ADA to the greatest extent possible in order to ensure a smooth passage. At a hearing in 1988 on discrimination against people with disabilities, Senator Harkin told the disability advocates testifying that day that “if we stick together as a community and we work with groups representing employers and hotel, restaurant, communications, and transportation industries, I believe we can succeed.”Footnote ³⁴ Harkin expressed this confidence citing recent work with realtors and home builders on fair housing legislation.

OPPOSITION TO THE ADA FROM BUSINESS INTERESTS: COSTS AND PRACTICAL CONSIDERATIONS

Business interests opposed the ADA because they were concerned about the effects that it would have on their profits. For example, Greyhound was concerned about the costs of retrofitting buses.Footnote ³⁵ These were practical considerations because businesses exist to make profits. Small businesses were particularly concerned because they did not have larger sums of money to fall back on during times of financial hardship. Financial concerns for small businesses led the National Federation of Independent Business, a national coalition of small businesses that hires lobbyists to advocate for legislation that would help small businesses, to be a leading opponent of the ADA among business interests.

The most consistent complaint from business interests was the costs that all businesses would incur from the ADA. During a debate on C-SPAN, Mary Reed, a lobbyist for the National Federation of Independent Business, frequently complained that the changes mandated by the ADA would be too costly for small business owners.Footnote ³⁶ Reed mentioned widening a doorway and remodeling a bathroom as expenses that could put small business owners out of business. Reed argued that businesses could be insulated from major costs by putting a maximum percentage requirement on the amount that businesses are required to spend for accommodations.Footnote ³⁷ Congressman Tom DeLay, a Republican from Texas, argued that the costs to provide accommodations to people with disabilities should have been offset with tax credits.Footnote ³⁸ No tax credit provision made it into the final version of the ADA. Congressman DeLay’s tax credit proposal was likely designed to try to kill the bill. Tax credits for implementing accommodations would have increased government expenses, which would have been an anathema to many conservatives.

Costs from litigation were another business-related concern. Ray Garland, a Republican who had served in the Virginia General Assembly, wrote in the Newport News Daily Press that the ADA “will create a possibly bottomless pit of new litigation.”Footnote ³⁹ Garland went on to argue, without citing any evidence, that it was a foregone conclusion “that much of it will be frivolous, malicious or unscrupulous.”Footnote ⁴⁰ Mary Reed said that frivolous litigation could put some small businesses out of business due to the legal costs regardless of whether the lawsuit had merit.Footnote ⁴¹ In a letter to Republican Senator William Armstrong of Colorado, Alexander Trowbridge, the President of the National Association of Manufacturers, claimed, without citing evidence, that the compensatory damages from ADA discrimination lawsuits “are in excess of those afforded to other protected classes.”Footnote ⁴² The emphasis on lawsuits without adding details from the bill showed that business interests and their allies intended to use the public’s understanding of lawsuits to limit remedies available for people with disabilities.

Business interests also argued that some of the terms within the ADA were not clearly defined. Ray Garland argued that the courts would be left to interpret the law.Footnote ⁴³ Mary Reed complained that the lack of clear guidelines for compliance was leaving businesses panicking.Footnote ⁴⁴ The National Federation of Independent Business claimed that the vague language would result in huge costs in an attempt to comply.Footnote ⁴⁵ Complaints about vague language were notably vague.

Congressman Tom DeLay argued on the House floor that the ADA should be subject to additional amendments to clarify the definitions and vague language. DeLay proclaimed that additional amendments were necessary because “business owners just want to know how to comply with the bill.”Footnote ⁴⁶ Congressman DeLay also put these arguments in a letter titled The ADA—Another Catastrophic Act? with Congressman Charles Douglas, a Republican from New Hampshire, and Congressman Bill McCollum, a Republican from Florida.Footnote ⁴⁷

Business interests also attempted to target specific protected groups within the ADA. Congressman Charles Douglas, a conservative Republican from New Hampshire, introduced an amendment to remove hiring protections for people with mental illnesses. Supporters of the Douglas amendment used derogatory stereotypes of people with mental illness to support their arguments. Congressman Robert S. Walker, a Republican from Pennsylvania, argued that the Douglas Amendment was needed to amend the section on psychological disorders to prevent it from becoming, according to Congressman Walker, “a necessity to hire psychopaths in police departments.”Footnote ⁴⁸ Congressman Walker did not provide evidence to support his claim. The Douglas amendment ultimately did not get much support and did not make it into the final bill.Footnote ⁴⁹

People with mental illness were not the only protected class of people with disabilities targeted by business interests. The Society for Human Resource Management, an interest group representing human resource professionals, refused to support the Americans with Disabilities Act because it thought that there were “apparent protections provided by this legislation to persons who violate the law and use illegal drugs.”Footnote ⁵⁰ Further examination of their concerns indicates that they were raising concerns about the protections for people who had experienced drug addiction.

Business interests criticized the bill based on exclusion. John R. Davis, then the head of the Illinois State Branch of the National Federation of Independent Business, wrote an editorial in the Chicago Tribune that was flagrantly discriminatory. Writing on the behalf of the National Federation of Independent Business, Davis wrote that they opposed the ADA because “the disabilities act carries altruism beyond the scope of reality. We don’t argue that the disabled deserve the right to participate in society.”Footnote ⁵¹ The arguments from Mr. Davis are exactly the type of discrimination that the ADA was seeking to address.

The opposition of business interests created a conundrum for many Republicans because business interests were a major political coalition partner for Republicans. Supporting the ADA without business-friendly changes would alienate business interests right before the midterm elections. Republicans could not back away from the ADA because of President Bush’s support for it, so Republicans had to compromise with congressional Democrats to make changes to the ADA in order to appease business interests.Footnote ⁵²

ADDRESSING THE OPPOSITION OF BUSINESS INTERESTS

The main way that the supporters of the ADA addressed questions of cost was by arguing that costs were the wrong thing to focus on. Supporters argued that the ADA was a bill to help people with disabilities live independently and have access to society. For example, President Bush said it was “past time for people with disabilities to be included in the mainstream of American life.”Footnote ⁵³ An internal White House policy memo said that the goal of President Bush’s disability policy was to “increase the economic and personal independence of disabled Americans.”Footnote ⁵⁴ This was in line with conservative ideological thought that promoted independence from government assistance.

Judith Heumann, the vice president of the World Institute on Disability who was debating Mary Reed on C-SPAN, used some of the stories from C-SPAN’s callers to demonstrate that the ADA needed to be passed to protect people with disabilities from discrimination by noting that their stories were about discrimination, not costs.Footnote ⁵⁵ The stories that callers told were of people being denied access to businesses because of their disability. Heumann herself recounted a story where she was kicked out of an auction house in Oakland because she was in a wheelchair.Footnote ⁵⁶ Heumann’s story was about discrimination and the lack of options she had for addressing the discrimination.

Advocates for the ADA also argued that the ADA would create long-term benefits by reducing the number of people on welfare by helping people with disabilities get jobs. These arguments were pushed by ADA advocates to address concerns about the costs of the ADA. Heumann’s opening argument on the C-SPAN debate mentioned that many people with disabilities have “faced extensive job discrimination and been forced on to welfare benefits.”Footnote ⁵⁷ The use of racially coded language regarding welfare benefits to argue for the ADA created tensions with Black civil rights activists.Footnote ⁵⁸

Proponents of the legislation also directly questioned the claims of business interests regarding costs. Greyhound buses claimed that installing a wheelchair lift on a bus would cost $35,000 per bus and forcing them to be installed would reduce services to thousands of small towns.Footnote ⁵⁹ An examination of that claim in the St. Louis Post-Dispatch demonstrated that Greyhound exaggerated that figure by over twice the price.Footnote ⁶⁰ Greyhound was also not required to implement wheelchair lifts on all buses immediately after the bill passed.Footnote ⁶¹

In response to concerns about litigation, proponents argued that it was the only viable enforcement mechanism. Clint Bollock, the director of the conservative Landmark Legal Center for Civil Rights, told the New York Times, “I think discrimination is an outrageous scourge and monetary damages is the only one type of remedy that truly can hurt a persistently discriminatory employer. Quotas do not hurt. Injunctions against discrimination do not hurt. If you want to truly harm businesses that engage in this practice, the only way to do so is money.”Footnote ⁶² Regarding businesses’ concerns about frivolous litigation from the ADA, Judith Heumann pointed out that disability discrimination cases were not a way for a lawyer to get rich.Footnote ⁶³ Heumann also argued that disabled people’s “goal in life is not to pursue litigation.”Footnote ⁶⁴ This addressed concerns from ideological conservatives about creating additional dependency on the government.

In response to concerns about vague language, Congressman Steny Hoyer of Maryland responded by saying the language has been drafted in a way to try to address the concerns about unanticipated accommodations.Footnote ⁶⁵ Congressman Hoyer’s response implied that vague language was necessary due to the comprehensive nature of the legislation. What Congressman Hoyer did not point out was that previous government disability programs that had more specified definitions of disability allowed many cases of people with disabilities to go unaddressed.Footnote ⁶⁶

In response to concerns about vague language in the letter from Congressman DeLay, Congressman Douglas, and Congressman McCollum, Michael Lechner, the executive director of the Kansas Commission on Disability Concerns, wrote a response to Congressman Delay’s The ADA—Another Catastrophic Act? Lechner wrote that their complaints about vague and undefined terms were “nothing more than bad quality hogwash” because the terms cited by the members of Congress were defined in the case law related to the Civil Rights Act of 1964 and the Rehabilitation Act of 1973, except for one term, “readily achievable,” which was included at the request of small businesses.Footnote ⁶⁷ Mr. Lechner proceeded to tear down all of the other points in the letter, which were related to lack of specificity on protected disabilities, interpretation of the law, and specific provisions within the bill. Lechner closed by saying “I must say that the only discernable catastrophe in this matter is the prevalence of fraudulent hyperbole such as that propagated in your 3-29 letter. I am thankful that none of you is my representative.”Footnote ⁶⁸

In response to the arguments from Congressman Walker concerning hiring protections for people with mental illnesses, Congressman Hoyer said that he spoke to a county police department in his district regarding that concern. Congressman Hoyer said that they already screen people psychologically before they are hired. Congressman Hoyer said that the ADA would not change that and would not result in any hiring that would jeopardize public safety.Footnote ⁶⁹

In response to the concerns expressed by the Society for Human Resource Management, a provision in the public accommodations title of the bill explicitly stated that no one using illegal drugs could claim protections from the ADA.Footnote ⁷⁰ Alexander Trowbridge’s letter to Senator Armstrong says that various statutes and regulations are “in some instances, in conflict with other requirements, e.g., for drug-free workplaces.”Footnote ⁷¹ This indicates that the illegal drugs provision was in the bill at the time that Trowbridge wrote his letter. Trowbridge’s letter was written more than two months before the letter from the Society for Human Resource Management.Footnote ⁷² This indicates that the concerns from the Society of Human Resource Management did not accurately reflect the bill as it was at the time the letter was written.

ACCOMMODATING BUSINESS OPPOSITION

Business interests were easier to accommodate because their objections were related to their bottom lines. Because the issues raised by business interests were mostly practical concerns, this gave congressional advocates of the ADA, such as Senator Harkin and Senate Minority Leader Bob Dole, enough room to make a compromise. Compromises were acceptable to business interests when they reduced the cost burdens on businesses. These compromises were more acceptable to ideological conservatives because the compromises did not put the financial burden on the government and they allowed Republicans to maintain their political coalition.

One approach to accommodating businesses was to phase in ADA requirements instead of demanding full compliance upon the passage of the bill. To accommodate Greyhound and other transportation companies, the ADA was written to allow these companies to gradually phase in new buses or other transport vehicles. Greyhound replaced about 10% of their buses every year, so Congress required them to expand the number of buses with wheelchair lifts by 10% each year.Footnote ⁷³ This meant that all Greyhound had to do to comply with the ADA was buy buses that had wheelchair lifts for the buses that they intended to replace.

Another way that business groups were accommodated was allowing full delays in implementing the ADA’s requirements. Judith Heumann mentioned an amendment from Congressman Campbell that expanded the delay for complying with the accommodations provision to thirty months for businesses with less than fifteen employees.Footnote ⁷⁴ Heumann said that disability advocates compromised on the Campbell Amendment.Footnote ⁷⁵

Attorney General Richard Thornburgh persuaded Republicans in Congress to support the bill by pointing out that the Justice Department would be writing the regulations. Thornburgh, who was motivated to pass the bill because of his son’s disability, promised to have the Justice Department help businesses find cost-effective ways to comply with the ADA rather than actively look for violations.Footnote ⁷⁶ The Justice Department maintained that this approach to the ADA continued after the Bush administration was no longer in office. A 1995 memo written by Assistant Attorney General for the Civil Rights Division Deval Patrick, an appointee of President Clinton, said that businesses and local governments had to “make their programs, not their buildings, accessible to people with disabilities.” Footnote ⁷⁷ An example that Patrick provided was that a library that had bookshelves on the second floor but no elevator could be in compliance if a library staff member went to get a requested book for someone in a wheelchair.Footnote ⁷⁸ Patrick’s memo stated that major costs for compliance could be avoided due to the “undue burden” provision within the bill.Footnote ⁷⁹

The compromises on bus replacement, the Campbell Amendment, and the undue burden provision were ways that reduced financial costs for businesses to comply with the ADA while still protecting the civil rights of people with disabilities. The willingness of advocates and business interests to compromise was vital for the ADA’s passage. However, not all of the ADA’s opponents provided grounds to compromise on.

IDEOLOGICAL OPPOSITION FROM CONSERVATIVE EVANGELICALS

Conservative evangelicals’ opposition to the ADA was rooted in moral and ideological opposition to homosexuality. The ADA’s protections for people who are infected with HIV were the specific part of the bill on which their objections centered. Many conservative evangelicals noticed that HIV was a disease that disproportionately affected homosexual and bisexual men, so many conservative evangelicals deemed HIV to be “God’s judgment against homosexuals.”Footnote ⁸⁰ This attitude toward HIV patients caused the gay community to, in the words of one AIDS counselor, look “at evangelicals as idiots and bigots.”Footnote ⁸¹ In an effort to avoid reinforcing these perceptions and improve their chances of changing votes, conservative evangelicals’ ideological objections were constructed using public safety themes to raise their objections. This strategy did not completely prevent explicit bigotry from being espoused by opponents of the ADA.

It is important to note that not all religious groups opposed the Americans with Disabilities Act. Many religious groups supported the bill and urged members of Congress to pass it. Some religious supporters of the ADA were the General Secretary of American Baptist Churches, the presiding bishop of the Episcopal Church, the General Secretary for the Council of Churches, and the President of the Union of American Hebrew Congregations.Footnote ⁸² This is not an exhaustive list of religious supporters of the ADA. The religious opponents of the ADA were highly politicized and generally aligned with the Republican Party.

The religious groups that opposed the ADA were mainly conservative evangelicals that argued that the inclusion of protections for individuals with HIV made the ADA a “gay rights” bill.Footnote ⁸³ Opponents of extending the ADA’s protections to people with HIV also argued that the disease was not understood well enough, which meant that people with HIV could be a public health threat if the protections were extended to them.Footnote ⁸⁴

Congressman William Dannemeyer, a Republican from California, claimed, without citing evidence, during debate on the House floor that “70% of HIV carriers are male homosexuals” and that if the ADA passed, “it will be identified by the homosexual community as their bill of rights.”Footnote ⁸⁵ Congressman Dannemeyer said that protections for people with HIV were unacceptable because it would allow people with HIV to file a lawsuit.Footnote ⁸⁶ Congressman Dannemeyer also suggested that not revising the protections on communicable diseases could result in people with “tuberculosis, meningitis, hepatitis,” and other dangerous diseases could be hired by an employer with bad judgment.Footnote ⁸⁷

Congressman Dan Burton, a Republican from Indiana, complained that the bill should be amended because “there has been litigation involving health care workers with HIV and other communicable diseases who have won [lawsuits] because they lost their job or were removed from their jobs because they might infect somebody else.”Footnote ⁸⁸ Congressman Burton found this to be unacceptable because he thought that “you will have a litany of lawsuits in the case of health care and food handling that you are not going to believe because we are not adequately addressing them with amendments in this bill.”Footnote ⁸⁹ Congressman Burton said that an amendment was necessary to prevent “someone with HIV or tuberculosis from working on you after you have had a major surgery.”Footnote ⁹⁰

Congressman Tom DeLay complained in his speech on the House floor that “on one hand we exempt private country clubs, and then we won’t accept an amendment to exempt churches.”Footnote ⁹¹ DeLay’s time expired before he got the opportunity to expand on his complaint, but his letter titled The ADA—Another Catastrophic Act? provides a little more insight regarding his complaint.

In his letter, Congressman Delay wrote “The ADA will give the federal government disproportionate impact in the hiring practices of churches and synagogues since they are not excluded as employers.”Footnote ⁹² His argument is that the law should not apply to religious institutions, but he never explained why it should not apply in his letter.

RESPONDING TO RELIGIOUS OPPOSITION

The response to conservative evangelicals largely focused on the practical harm that their proposals would do. The responses from the ADA’s supporters addressed things from a practical and public safety standpoint, but they never addressed the underlying moral or ideological objections that prompted the opposition. As a result, the religious opponents of the ADA and the proponents of the ADA simply talked past each other.

After the speeches on the House floor by Congressman William Dannemeyer and Congressman Dan Burton, Congressman Bill Richardson, a Democrat from New Mexico, began his speech by saying “Mr. Speaker, this should not be a debate about homosexuals or AIDS, or HIV drug users. This is a debate about the civil rights for the disabled.”Footnote ⁹³ Congressman Richardson proceeded with his speech as though the speeches from Congressman Dannemeyer and Congressman Burton never happened.

The response from Congressman Richardson is similar to a talking points memo for conservatives that supported the ADA. The memo was designed to respond to criticisms of the HIV protections within the ADA. The memo states, “This bill is not a ‘gay rights’ bill. It provides protection to those people who have, or are believed to have, HIV disease. It provides no protection to people who experience discrimination solely on the basis of their sexual orientation.”Footnote ⁹⁴ The memo appears to be designed to win over skeptical conservatives by noting the legality of discrimination based on sexual orientation and defending their moral and ideological position.

People who supported protections for HIV patients also highlighted the general benefits to society for protecting them. In a letter to Senator Ted Kennedy, former Surgeon General C. Everett Koop, an evangelical Christian who served in the Reagan administration, wrote that “discrimination against people with AIDS is the most serious obstacle to an effective public health response to this deadly epidemic.”Footnote ⁹⁵ In his letter, Dr. Koop also reminded Senator Kennedy that the disease can’t be contracted through food.Footnote ⁹⁶ A letter from the Association of State and Territorial Health Officials said that “Section 103 [of the ADA] does not preempt our existing state public health laws in regard to individuals who ‘pose a direct threat to the health and safety of others.’”Footnote ⁹⁷

THE CHAPMAN AMENDMENT

Congressman Jim Chapman, a Democrat from Texas, introduced an amendment to address evangelical conservatives’ criticisms regarding parts of the bill that addressed communicable diseases. The amendment was described as the “food handler” amendment because it barred people with communicable diseases, including AIDS, from handling food.Footnote ⁹⁸ The Chapman Amendment did not allow employers to fire employees with HIV, but it required them to “make reasonable accommodation that would offer an alternative employment opportunity for which the employee is qualified and for which the employee would sustain no economic damage.”Footnote ⁹⁹ The Chapman Amendment initially passed in the House by a vote of 199-187.Footnote ¹⁰⁰

Congressman Charles Douglas, a Republican from New Hampshire, defended supporting the amendment to ban people with AIDS from holding food-handling jobs by saying, “We run election campaigns on perceptions. It’s reality to our voters.”Footnote ¹⁰¹ The National Restaurant Association and the National Federation of Independent Business also supported the Chapman Amendment.Footnote ¹⁰² A similar amendment that was sponsored by Senator Jesse Helms, a Republican from North Carolina, was added to the Senate version of the bill.Footnote ¹⁰³ The Helms Amendment passed by a vote of 53 to 40.Footnote ¹⁰⁴ The White House’s inaction allowed the Chapman Amendment to initially pass.Footnote ¹⁰⁵

RESPONSE TO THE CHAPMAN AMENDMENT AND THE CONFERENCE COMMITTEE

Pat Wright, the director of government affairs at the Disability Rights Education and Defense Fund, and other disability rights activists informed their contacts at the White House that the Chapman Amendment was unacceptable and must be removed due to its promotion of discrimination against people with HIV.Footnote ¹⁰⁶ Wright told the press after talking to Bush administration officials that the ADA should not be passed with the Chapman Amendment.Footnote ¹⁰⁷ Disability rights activists argued that the Chapman Amendment was discriminatory because it was not based on medical evidence. Democrats in Congress, such as Senator Tom Harkin of Iowa and Senator Edward Kennedy of Massachusetts, also supported the removal of the Chapman Amendment.Footnote ¹⁰⁸ Congressman Steny Hoyer, a Democrat from Maryland, called the Chapman Amendment “the Jim Crow Amendment of 1990.”Footnote ¹⁰⁹ Because there were differences between the versions of the ADA passed in the House and the Senate, the bill went to a conference committee to form a uniform bill. The conference committee removed the Chapman Amendment from the finalized version of the ADA.

The Chapman Amendment was not the only problem to deal with in the conference committee. President Bush sent White House Chief of Staff John Sununu to represent the administration at the conference committee. Sununu had been removed from previous ADA negotiations at the request of Senator Tom Harkin because Sununu had been advocating for positions that were different from the White House’s position.Footnote ¹¹⁰ At the conference committee meeting, Sununu began to come up with examples of why he thought the ADA should be modified to help businesses in New Hampshire, where he was previously the Governor. Bobby Silverstein, a member of Senator Harkin’s staff, read passages from the legislation to show Sununu why he was wrong. After being corrected three times, Sununu started yelling at Silverstein. Senator Ted Kennedy of Massachusetts admonished Sununu for yelling at a congressional staffer, and Sununu remained quiet for the rest of the meeting.Footnote ¹¹¹

The removal of the Chapman Amendment from the version of the ADA that came out of the conference committee did not end the dispute over the amendment. Members of Congress who identified with conservative evangelicals made it known that they intended to try to reinsert the Chapman Amendment into the ADA. A letter written on June 27, 1990, by Sharon Daly, the director of the office of domestic social development within the United States Catholic Conference, asked an unnamed Senator “to oppose any attempt to reinsert the Chapman amendment” in the ADA.Footnote ¹¹² This letter shows that supporters of the ADA were preemptively advocating stopping any attempt to revive the Chapman Amendment.

The Bush administration understood that the Chapman Amendment was a threat to the passage of the ADA. However, most of the pushback came from other Bush administration officials rather than President Bush. Department of Health and Human Services Secretary Louis Sullivan “wrote to Congress that the [Chapman] Amendment ‘is not needed or justified… . We need to defeat discrimination rather than submit to it.’”Footnote ¹¹³ According to a question and answer sheet on the Chapman Amendment, President Bush said, “There is only one way to deal with an individual who is sick. With dignity, compassion, and without discrimination.”Footnote ¹¹⁴ This quote may have been taken out of context by the anonymous author of the question-and-answer sheet to get Republicans to support the ADA without the Chapman Amendment. The White House did not produce a document requested by Senator Ted Kennedy to show that the President himself supported the ADA without the Chapman Amendment.Footnote ¹¹⁵ The reluctance to produce the document indicates that the White House saw the Chapman Amendment as a contentious issue within the Republican Party and did not want to exacerbate factional tensions months before the midterm elections. The opposition of Bush administration officials was also a primary factor in keeping the Chapman Amendment out of the final version of the bill.

FINAL DEFEAT FOR THE CHAPMAN AMENDMENT

During the final votes on the ADA in the House of Representatives, Congressman William Dannemeyer of California tried to get the Chapman Amendment reinserted into the bill.Footnote ¹¹⁶ The tactic used to try to reinsert the Chapman Amendment was a motion to recommit. A motion to recommit is an attempt to amend a bill before final passage.Footnote ¹¹⁷ They are often used by the minority party and presented just before the final vote.Footnote ¹¹⁸

Congressman Steny Hoyer, a Democrat from Maryland, was given the time to speak against the motion to recommit. In responding to concerns about public health and public safety that were used to try to justify the Chapman Amendment, Congressman Hoyer said that “the United States Senate recognized that concern and adopted an amendment offered by Senator Dole and Senator Hatch, and that amendment was adopted [by a vote of] ninety-nine to one.”Footnote ¹¹⁹ The amendment that Congressman Hoyer referred to was an amendment that required the Department of Health and Human Services to write up a list of diseases that could be spread by food handlers. The amendment also said that antidiscrimination laws cannot override public health laws.Footnote ¹²⁰ The adoption of the amendment from Senator Dole and Senator Hatch was a way of accommodating concerns about public health and public safety without addressing the moral and ideological objections of the Chapman Amendment.

After defending the entirety of the bill, Congressman Hoyer called for the House to “reject this [Chapman] amendment, which is unnecessary, unwise, discriminatory, arbitrary, and capricious!”Footnote ¹²¹ Congressman Hoyer also noted that the amendment was not supported by medical evidence, the Secretary of Health and Human Services, or President Bush.Footnote ¹²² Time for debate expired after Congressman Hoyer finished speaking. The motion to recommit did not pass and the House approved of the bill by a vote of 377-28.Footnote ¹²³ Supporters of the Chapman Amendment, such as Congressman William Dannemeyer, Congressman Dan Burton, and Congressman Jim Chapman, voted against the ADA. Congressman Tom DeLay, who criticized the bill for business interests and religious conservatives, also voted against the ADA.Footnote ¹²⁴

SIGNING THE ADA INTO LAW

On July 26, 1990, President Bush signed the Americans with Disabilities Act into law during a ceremony in the White House rose garden.Footnote ¹²⁵ President Bush thanked the many people and organizations that had put their weight behind passing the Americans with Disabilities Act. President Bush told the business community that “You have in your hands the key to the success of this act. For you can unlock a splendid resource of untapped human potential that, when freed, will enrich us all.”Footnote ¹²⁶

President Bush made one final attempt to reassure the business community in his remarks. President Bush said, “I know there are concerns that the ADA may be vague or costly, or may lead endlessly to litigation. But I want to reassure you right now that my administration and the United States Congress carefully crafted this Act. We’ve all been determined to ensure that it gives flexibility, particularly in terms of the timetable of implementation, and we’ve been committed to containing the costs that may be incurred.”Footnote ¹²⁷ President Bush proceeded to remind the business community that people with disabilities can become the workers that they were asking for. President Bush never mentioned any of the religious opponents of the legislation or the protections for individuals with HIV in his remarks. This marginalized the objections of conservative evangelicals. Conservative evangelicals only had enough support in Congress to be a nuisance in the policy-making process in 1990, so it made sense for the rest of the Republican Party to try to marginalize them instead of giving in to their demands.