The Americans with Disabilities Act and the Language of ‘Potential’

The funeral of former President George H.W. Bush has prompted journalists to assess the legacy of one of his most important legislative achievements, the Americans with Disabilities Act (ADA). A milestone for the more than 50 million Americans who have a disability, the ADA was the first comprehensive civil rights bill to address physical and mental difference. Symbolically, the bill functioned as a declaration of equality for a group of Americans whom the law had systematically excluded from mainstream life. Practically, the bill mandated that private businesses make their facilities accessible to people of differing ability levels; it also guaranteed that people with disabilities would have legal recourse when they suffered discrimination in the workplace. As one wheelchair-using veteran lamented about life before the ADA, “handicap parking was very rare.” Following the law’s adoption, people with disabilities encountered fewer barriers to daily life—an enormous victory for those who had been struggling in the shadows for centuries.

Like Bush himself, the bill has been regarded as a curiosity from a lost era in politics. Namely, it evokes a seemingly bygone time where a Republican president would sign into law a bipartisan civil rights reform with regulatory consequences for businesses. Indeed, as US News observes in an article written on the 25th anniversary of the ADA, the law represented “the ability of Democrats and Republicans in Congress to come together on the matter, working out some serious differences in service of the greater good.”

The story of the ADA is more complicated than the bipartisan histories make it out to be. As a scholar of rhetoric, I have waded through scores of boxes containing letters, notes, speeches, and research materials at the George Bush Presidential Library and Archives to learn more about the behind-the-scenes process that led to Bush’s support for the legislation.

What I discovered is much bigger than Bush and bipartisanship: a cultural struggle over the meaning of “disability.” Sent by a wide array of organizations and businesses, many letters from the Bush Archive seldom addressed the civil rights of the disability community, and those that did often assumed that employers would “do the right thing” by accommodating their employees by their own volition. At the same time, many letters argued that measures to equalize the potential of disabled bodies would bring undue discomfort, or worse, to people without disabilities. While the bill passed despite these objections, many of the bill’s political supporters accepted these letters’ premises, affirming them in their public defenses of the legislation. Their language still has consequences. For a quarter century, the ADA has played a major role in shaping the language Americans use to discuss disability. Certain aspects of that language have sustained unwarranted cultural fears about physical difference.

The Changing Meanings of “Disability”

Over the past two centuries, disability law and cultural practices have continuously evolved. Originally considered matters of local concern, city ordinances were charged with preventing “any person who [was] diseased, maimed, mutilated, or in any way deformed” from sitting or standing on public street corners. This 1881 Chicago ordinance, now referred to as an “Ugly Law,” allowed officials to forcibly remove a person with a disability from public view and charge them a hefty fine for the offense. This practice reflected broader cultural expectations about the invisibility of people with disabilities in American life. Cities throughout the country sequestered disabled bodies, shutting them up in alms houses or vocational rehabilitation centers where the public wouldn’t be subjected to their “unsightliness.”

Alongside other civil rights gains in the 20th century, cultural attitudes about disability began to change. By the 1950s, people no longer took for granted the notion that loved ones ought to be segregated and institutionalized based solely on the presence of physical difference. Decisions like Brown v Board of Education, for example, provided the legal basis for future court decisions mandating equitable treatment in public schools for children with disabilities. In the years following Brown, people with disabilities began to organize, demanding further reforms to building accessibility, job restructuring, unpaid leave, and workplace flexibility, each with the intent of helping the disability community move into the mainstream of American daily life. In 1973, organizers reached a milestone with the authorization of the Rehabilitation Act, which officially prohibited discrimination on the basis of physical ability by any entity receiving federal funds. This victory helped to establish the next decisive goal for the movement: a comprehensive civil rights bill that would define civil liberties in both public and private spaces.

By the time the ADA made its way to the House floor in 1989, a battle was brewing between Democratic supporters of the legislation and its Republican opponents. The disagreements came down to two major issues. First, the Democrats wanted the ADA to enable those who faced discrimination to be able to sue for damages. Second, members of both parties vehemently opposed any law that would require businesses, especially restaurants, to employ people suffering with HIV. The disability community, however, remained steadfast in its observation that no scientific evidence supported the need for such a provision in the law. Eventually, organizers persuaded the bill sponsors that people with AIDS should be protected under the ADA. While this represented a huge victory for the community, the debates also revealed latent fears about the nature of “disability” itself and the ways we talk about it in public.

The Potential of Disability — and the Discomfort of those Without Disabilities

Members of the business constituency, especially the National Federation of Independent Businesses, reached out to the president with their concerns about the ADA. Small business owners especially feared that the costs associated with the law would cause them to close their doors. These letter writers viewed the Bush Administration as a strong ally of business who would protect their interests. While these material, financial concerns were clearly articulated in many of the writings, another fear, one far more pernicious, lurked in the letters. The letters belied fears of the possibility that disability could cause harm, even in the absence of actual prior behavior to support such a conclusion. In turn, the fear of imagined potential harms supported the construction of institutions, habits of mind, and biases designed to segregate the people with disabilities from the rest of society.

A letter written by the National Restaurant Association to the Bush Administration exhibited how this fear of disability was invoked by ADA opponents. The letter writer, Bob Harrington, argued that “a disabled employee medically required to use portable oxygen devices would constitute an extreme safety hazard in a kitchen with open-flame cooking equipment.”* He expressed concern that an employee who used crutches would be “at an increased risk of slip and fall accidents on wet or soiled floors,” which may in turn cause other employees to trip over the first one, unleashing kitchen chaos. Chemical bottles, too, posed a special hazard to the blind employee, for she may be unable to obtain an audio translation of the ingredients, causing misuse or mismanagement of dangerous substances. Food shields (or sneeze guards) covering buffet lines, too, were under threat from wheelchair-bound bodies because those guards were designed to protect against germs emanating from standing persons.

Each of these assertions pointed to a latent anxiety about the potential of disability in the workplace. When Harrington asserted that a person in a wheelchair would disregard a sneeze guard, he implied that the very presence of disability in the workplace constituted a danger to the public. (Never mind that persons in wheelchairs are just as capable of controlling their sneezes as standing persons.) Harrington’s argument about employees using crutches similarly invoked an imagined potential harm. Workers on crutches are certainly liable to falling in a slippery, wet kitchen setting. So are all workers. The fear that the worker on crutches was somehow less able to manage her slipping ability overrode Harrington’s willingness to employ her. The anxieties of those without disabilities usurped protections for people with disabilities.

Just as the imposition of Ugly Laws sequestered people with disabilities from open view by physically removing them from street corners, so do Harrington’s arguments about the ramifications of passing the ADA imply a need to quarantine people with disabilities. This language was reaffirmed in letters throughout the Bush Archive, and then by Bush himself. The result is a rhetorical legacy that has run counter to the ADA’s practical and legal benefits.

The ADA and its Rhetorical Legacy

While objections like those raised in the National Restaurant Association letter failed to persuade Bush or Congress to oppose the law, their concerns still influenced the contents of the bill and broader public discussions about disability. Specifically, these challenges shaped Bush’s justification for supporting the ADA. In his speech given at the bill’s signing ceremony, Bush reframed language about potential harms to stress, instead, the potential benefits that could be brought to the workplace. As he put it in the speech,

This act does something important for American business, though—and remember this: You’ve called for new sources of workers. Well, many of our fellow citizens with disabilities are unemployed. They want to work, and they can work, and this is a tremendous pool of people. And remember, this is a tremendous pool of people who will bring to jobs diversity, loyalty, proven low turnover rate, and only one request: the chance to prove themselves.

Bush’s appeal played an important part in assuaging the fears of the business constituency and garnering acceptance for the new law. Yet Bush’s reframing of the logic of disability’s “potential” maintained a basic assumption that these bodies’ value depended on the feelings, perceptions, and evaluations of people without disabilities. The right to belong of a person with a disability was not dictated by the individual’s common humanity or dignity, but by the untapped value they might bring to the workplace. In this way, Bush helped place “potential” at the center of future cultural conversations about disability. Even as the ADA improved conditions for the disability community, public discourse continued to place the onus on them to prove their own worth as diligent, dedicated employees.

The language of “potential” now threatens to erode the legal protections provided by the ADA. In April of 2018, the House of Representatives voted to pass the ADA Education and Reform Act (HR 620). According to its supporters, the bill was necessary to stop “rip-off artists” from enacting frivolous accessibility lawsuits. In turn, the law would have allowed businesses to resist public accommodations until served explicit notice by a person with a disability. Treating the presence of disabled bodies as an ever-present threat to businesses’ bottom line, the law would have required those with disabilities to speak the language of “potential” to have their own civil rights fulfilled. Though the bill was thwarted in the Senate, it relied on a set of persistent cultural assumptions that solidified during the debate over the ADA.

Julia M. Medhurst is a writing center administrator and a doctoral student in the Department of Communication at Texas A&M University.

* Letter from Bob Harrington, On behalf of the National Restaurant Association, to Dick Crawford, July 19, 1989, George H.W. Bush Presidential Records, White House Office of Policy Development, Johannes Kuttner Files, Americans with Disabilities Act: Business and Industry OA/ID 03138-010, George Bush Presidential Library, College Station, Texas.