Congress, Disability Law: It’s Only Just Begun : Disabled: The new law may seem ambiguous. But Congress purposely left complex issues for agency experts to work out.

Business critics of the new bill of rights for the disabled, the Americans with Disabilities law, complain that Congress has passed another ambiguous, costly measure. They fail to understand this about the legislative process: It does not end when Congress enacts a law, but only just begins.

More and more, Congress invites the Executive Branch to continue its work, not simply to administer its laws. The issues raised by the new law can still be addressed in ways that are sensitive to the business community and people with disabilities.

The law seeks to protect 43 million disabled people. It prohibits discrimination in the private sector and covers employment, public services, public accommodations, transportation and communication. An employer with more than 25 employees cannot refuse to hire a qualified disabled applicant if the person can do the work with “reasonable accommodations.”

Hotels, restaurants, stores and other private businesses must eliminate architectural barriers if the changes are “readily achievable.” Businesses must make “reasonable accommodations” to offer goods or services to the disabled unless the accommodations would cause “undue burdens.”

With respect to transportation, the law requires that all new buses be accessible, that supplemental paratransit service be “comparable” to the service for the general public, and provides that transit authorities be allowed to avoid “undue” financial burdens. The legislation mandates a nationwide “relay” system in which telephone operators will act as intermediaries between those who can and cannot hear.

If the law is sweeping in its scope, many questions still remain. What constitutes “reasonable accommodation”? What is an “undue burden”? When is something “readily achievable”? These terms cry out for definition. Congress struggled to provide meaning in committee reports, but the range of circumstances are so great that businesses are uncertain as to what constitutes compliance.

A variety of reasons account for these apparent gaps. In part, it is because Congress chose to leave some complex issues to agency experts. Some advocates argued that it would be easier to secure support for ambiguously worded sections of the statute that meant all things to all people. Fragmented congressional organization also contributed to the law’s ambiguities. Because disability issues are cross-cutting, several committees laid claim to them. The differing orientations of committees reflected, among other things, the diversity of policy domains. Legislative diversity enriched the legislative process, but it was not without costs. In the end, Congress produced landmark legislation containing signals that were not always clear.

Enter administrative agencies. A critical feature of the law is its requirement that regulatory agencies issue rules and regulations to fill in the blanks. The Department of Transportation, the Department of Justice, the Federal Communications Commission, the Architectural and Transportation Barriers Compliance Board, the National Council on Disability and the Equal Employment Opportunity Commission are among the agencies charged by Congress with clarifying ambiguities. They are to give practical effect to such terms as “undue burden” and “reasonable accommodation.” How they interpret those phrases will say much about what businesses will be required to do. Wisely, Congress has effectively made these agencies partners in the legislative process.

Critics of the law charge that it will be costly, that it will imposes unfair burdens on businesses. There is concern, for example, that many small firms will go under, that they cannot afford to be accessible. Estimates of realizing the law’s goals run into many millions of dollars annually. Cynics assert that the ambiguities in the legislation show that Congress is sloppy. Some maintain that Congress delegated problems to the Executive Branch to evade responsibility.

These doubts miss important points. Anyone familiar with the saga of the Disabilities Act cannot help being impressed by its supporters’ diligence and commitment. Those who would criticize Congress for leaving some questions unanswered should ask themselves: Would it have made sense for Congress to prescribe exact requirements on business in every context without full deliberation? Or does it make more sense to leave such technical questions to the methodical processes of expert agencies in consultation with business and disability groups?

Congress has provided an ambitious framework. It has responded to those who for too long have been shut out of society. It turns now to agencies and, then, inevitably to the courts. No doubt, Congress will carefully monitor all of this. The legislative process continues. Stay tuned.