Poor federal enforcement weakens ADA, disability group asserts.

As the federal government marked the 10th anniversary of the Americans with Disabilities Act (ADA) this summer, a group concerned with the civil rights of people with disabilities released findings that the federal agencies charged with enforcing and developing policy on the act have been "underfunded, overly cautious, reactive, and lacking [in] any coherent and unifying ... strategy." The National Council on Disability (NCD) concluded that the overall impact of the ADA has been seriously diminished as a result.

The findings, as well as possible remedies, are reported in Promises to Keep: A Decade of Federal Enforcement of the Americans with Disabilities Act. Researchers studied ADA enforcement activities from 1990 to 1999 of four federal agencies: the Department of Justice (DOJ), the Equal Employment Opportunity Commission (EEOC), the Department of Transportation (DOT), and the Federal Communications Commission (FCC).

The agencies are responsible for interpreting and enforcing the law as it applies to private employers, state and local governments, all facilities and programs open to the public, and providers of telecommunications equipment and services. They also offer policy guidance and participate in the development of precedent-setting court decisions.

The report said that chronic underfunding and understaffing of the agencies have resulted in "problematic federal court interpretations" of the ADA that have "unjustly narrowed the scope of the law's protections." The NCD noted that agencies that did receive increased funding, like the EEOC, received it too late. The commission's caseload increased measurably when the Americans with Disabilities Act was first implemented in the early 1990s, but it did not receive increased funding until nine years later.

The report also faulted the agencies for being too cautious in their approach to enforcement. The agencies have "recurrently entered important cases late in their progression via amicus participation ... [and] have not demonstrated a proactive strategy for acting quickly to limit the impact of court decisions that have eroded important protections of [the] ADA," the disabilities council said.

The report chided the agencies for their fear of taking positions on new or controversial issues and for being too concerned about potential backlash if a strong position is taken: "When an agency forsakes a leadership role, takes an equivocal and muddled position, and plays only a minor and somewhat negative role in the resolution of an issue--as [the] EEOC did in its confined, technical approach to the definition of `disability'--it may contribute to an adverse climate such as that which eventually culminated in the Supreme Court decisions restrictively construing the definition."

The council also claimed the federal agencies have failed to react to misleading negative media portrayals of the ADA that have undermined public support for the act. The inaccurate portrayals have caused a backlash against the expansion of the civil rights of people with disabilities and fostered a perception that noncompliance is a reasonable response to an "excessive" mandate, it said.

Lack of leadership

Finally, the NCD said that because of the federal agencies' lack of leadership and strategy, courts have dismantled the law's protections and disregarded the agencies' positions on critical issues, such as the definition of the protected class and the appropriate analysis to employ for determining the reasonableness of a particular accommodation.

Marca Bristo, chair of the disabilities council, said that although the agencies were well intentioned and supportive of the disabilities act, their shortcomings have undermined its enforcement.

"We believe that with sufficient resources and a uniform plan to implement and enforce the ADA, the nation will benefit substantially," she said.

Promises to Keep: A Decade of Federal Enforcement of the Americans with Disabilities Act is available on the Internet at http://www.ncd.gov/newsroom/publications/ promises_1.html.