Americans with Disabilities Act Becomes Law

Gay and lesbian community-based civil rights and HIV-AIDS organizations joined in a broad coalition that demanded sweeping civil rights legislation protecting individuals with disabilities, including persons with HIV and AIDS. The Americans with Disabilities Act, signed into law in 1990, includes as protected those persons who are HIV-positive or who have AIDS.

Date July 26, 1990

Locale Washington, D.C.

Key Figures

• Dan Burton Republican US representative, Indiana
• Jim Chapman Democratic US representative, Texas
• Chai Feldblum attorney with the American Civil Liberties Union AIDS Project
• Jean McGuire executive director, AIDS Action Council
• Jesse Helms Republican U.S. senator, North Carolina
• Tim McFeely executive director of the Human Rights Campaign Fund

Summary of Event

Enacted on July 26, 1990, the Americans with Disabilities Act (ADA) provides legal protection against discrimination for individuals with disabilities in a wide range of settings, including employment and public accommodations. It also includes provisions for access to services.

Passage of the ADA was the result of a broad coalition, including Patrisha Wright of the Disability Rights Education & Defense Fund and Ralph Neas of the Leadership Council on Civil Rights. Chai Feldblum, a lawyer with the American Civil Liberties Union (ACLU), was a key architect of the legislation, while Tim McFeely of the Human Rights Campaign Fund (later called the Human Rights Campaign), a gay lobbying organization, and Jean McGuire and Tom Sheridan of the AIDS Action Council were the leading representatives for those with HIV-AIDS. Senator Ted Kennedy’s chief staff member on HIV-AIDS issues, Michael Iskowitz, also had a prominent role in the ADA’s passage.

Although intended to provide broad protection to all persons with disabilities, the ADA also was a response to the HIV-AIDS epidemic, in its eighth year when the ADA was introduced in Congress in 1989. Widespread discrimination against people with HIV-AIDS resulted in recommendations, such as that of the Presidential Commission on the Human Immunodeficiency Virus Epidemic (1988), for strong legal protection. A bill that would have protected from discrimination only individuals with HIV, but not other disabilities, was introduced in 1987 but did not have adequate support. Instead, HIV-AIDS advocates joined with other disability rights advocates to pass the ADA.

The ADA received significant bipartisan support in Congress as well as support from the administration of President George H. W. Bush. Some conservative legislators, however, attacked the ADA because it included protection for persons who had what many conservatives considered disabilities that were morally objectionable. Ultraconservative Republican senator Jesse Helms, a leading opponent of gay and lesbian rights, objected to the ADA’s inclusion of, in his words, “people who are HIV-positive, most of whom are drug addicts or homosexuals or bisexuals.” Representative Dan Burton opposed the ADA because it was, according to him, “a last ditch attempt of the remorseless sodomy lobby to achieve its national agenda before the impending decimation of AIDS destroys its political clout.”

Despite these objections, Congress rejected amendments to the bill that would have excluded homosexual or bisexual people with HIV-AIDS. Congress did agree, however, to amendments that excluded “transvestism,” transsexualism, and gender-identity disorder from protection. While the US Senate initially included homosexuality and bisexuality in this same list, the House of Representatives concluded that homosexuality and bisexuality are not impairments and therefore are not disabilities. These amendments were necessary for passage of the ADA. While the provision regarding homosexuality and bisexuality was legally insignificant because such identities are not covered as disabilities under the ADA, the provisions excluding “transvestism,” transsexualism, and gender-identity disorder were legally significant.

During final consideration of the ADA, Representative Jim Chapman introduced an amendment that allowed individuals with “an infectious or communicable disease of public health significance” to be excluded from jobs involving food handling. This was intended to allow employers to exclude employees with HIV. Because there is no risk of HIV transmission in food preparation, this provision would have perpetuated the unfair prejudice that the ADA was intended to end. At a White House meeting in which Tim McFeely, McGuire, and Sheridan represented the AIDS community, ADA supporters agreed that if the food handler provision were included, they would withdraw their support, thus killing the ADA. This dispute was resolved, however, when Senator Orrin Hatch introduced a compromise amendment drafted by ACLU lawyer Feldblum. The compromise required the secretary of Health and Human Services to issue a list of infectious diseases that can be transmitted by food handling. (HIV has never appeared on that list.) The Hatch amendment was accepted, the ADA passed Congress, and President Bush signed it into law on July 26, 1990.

The ADA Amendments Act of 2008 expanded the law's protections to

Significance

The Americans with Disabilities Act has been widely hailed as the “Bill of Rights” for people with disabilities. Before the ADA, federal protection against disability-based discrimination was limited to federal agencies, federal contractors, or recipients of federal financial assistance. After the ADA, protection extended far more widely, taking within its sweep private-sector employers, businesses such as restaurants and hotels, professional offices such as those of physicians and attorneys, and transportation and communication services.

The ADA’s definition of “disability” is not specific to any medical condition but is instead generic. Under the ADA, a person has a disability if they have a physical or mental impairment that results in a substantial limitation on a major life activity. The ADA not only protects persons with actual disabilities; it also covers persons perceived to have a disability or who have a record of having a disability but in fact are not disabled. For example, a man fired from his job because his employer believes he has acquired immunodeficiency syndrome (AIDS), when in fact he does not, is nevertheless able to sue his employer for discrimination under the ADA.

Much to the disappointment of its proponents, however, the ADA often has been interpreted narrowly by the courts. Still, in other cases it has been expanded. In 1998, for example, the US Supreme Court ruled in Bragdon v. Abbott that asymptomatic HIV infection is a disability based on the plaintiff’s inability to bear children because of her HIV infection. The ruling confirmed the ADA as a vital tool in fighting discrimination, and especially HIV-related discrimination, even beyond cases of visible disability. In 2008 the ADA Amendments Act was signed into law, further expanding the 1990 act's protections to a broader range of disabilities. In 2019 the Supreme Court provided support to interpretations of the ADA extending to websites. In 2022 a judge for the US Fourth Circuit Court of Appeals also ruled that the ADA covered gender dysphoria, characterizing that condition as distinct from "gender identity disorder," which remained explicitly excluded from the ADA.

Most historians agree that the ADA has had a profoundly positive impact on the lives of individuals with HIV-AIDS and others with disabilities. However, some controversy has surrounded the issue of so-called professional plaintiffs, or individuals who bring a large number of lawsuits against businesses under the ADA and, depending on state law, potentially earn monetary compensation. Some experts consider such activity abuse of the system, while others suggest that it is a form of advocacy that pushes for more widespread compliance with ADA regulations, which continue to be ignored by many establishments.

Bibliography

Colker, Ruth. “The ADA’s Journey Through Congress.” Wake Forest Law Review 39, no. 1 (2004).

Feldblum, Chai. “The Art of Legislative Lawyering and the Six Circles Theory of Advocacy.” McGeorge Law Review 34, no. 785 (2003).

Johnson, Chris. "Court Rules Transgender People Have Legal Protections Under ADA." Washington Blade, 16 Aug. 2022, www.washingtonblade.com/2022/08/16/court-rules-transgender-people-have-legal-protections-under-ada/. Accessed 16 Sept. 2022.

Markham, Lauren. "The Man Who Filed More Than 180 Disability Lawsuits." The New York Times, 29 Aug. 2021, www.nytimes.com/2021/07/21/magazine/americans-with-disabilities-act.html. Accessed 16 Sept. 2022.

National Council on Disability. “Equality of Opportunity: The Making of the Americans with Disabilities Act.” July 26, 1997. http://www.ncd .gov/newsroom/publications/1997/equality.htm.

Webber, David W. “Legislative History in Regard to HIV.” In AIDS and the Law, edited by David W. Webber. New ed. New York: Aspen, 2005.

Wright, Patrisha. “When to Hold ’Em and When to Fold ’Em: Lessons Learned from Enacting the Americans with Disabilities Act.” Disability Rights Education and Defense Fund. http://www .dredf.org/international/paper‗w-w.html.