Testimony of John L. Wodatch Before the Foreign Relations Committee Of the United States Senate

I. The Disabilities Convention and U.S. Disability Rights Law

The Disabilities Convention is modeled on the disability rights laws of the United States and adopts the successful and balanced approach of U.S. federal disability rights law dating back to 1977. It embodies the traditional American ideals that form the basis of the Americans with Disabilities Act and other U.S. disability rights laws. These include the core principles of nondiscrimination and equality of opportunity. The treaty seeks to empower persons with disabilities to be independent, to claim personal responsibility for their own lives, and to be able to make their own choices.

The Americans with Disabilities Act, or ADA, is a comprehensive civil rights law protecting the rights of persons with disabilities in the United States. Since it was signed into law in 1990 by President George H. W. Bush, it has literally changed the landscape of this country, opening up everyday American life to persons with disabilities.

The ADA is, however, just one part of a rich and varied series of federal protections of the rights of person with disabilities. The Architectural Barriers Act of 1968 ensures that Federal buildings will be accessible according to strict Federal design standards. The Individuals with Disabilities Education Act ensures that children with disabilities will receive a free, appropriate education. The Fair Housing Act ensures that people with disabilities will have accessible housing. The Air Carrier Access Act opens air travel to persons with disabilities. The Help America Vote Act, as well as the Voting Accessibility for the Elderly and Handicapped Act of 1984, provide for an accessible electoral process, including accessible polling places. The ADA and title V of the Rehabilitation Act provide a comprehensive framework, covering employment, transportation, public accommodations, telephone service, and all the activities of State and local governments to persons with disabilities.

These laws have proven to be a success because they are grounded in nondiscrimination principles, and they provide a balanced approach to accessibility. Each requirement is tempered by limitations that reflect the difficulty and costs of achieving accessibility. Thus the obligation to make reasonable accommodation to employees is limited by undue hardship. Businesses do not have to make changes to their programs and services if they are too costly or would fundamentally change the nature of the program or service. Small employers (under 15 employees) are exempted from all requirements as are churches, other religious entities, and purely private clubs.

I was fortunate to be a member of the U.S. delegation to the UN Ad Hoc Committee that was considering the formulation of a disabilities convention. The Committee deliberated from 2001 to 2006, when the treaty was adopted by the UN. The Bush Administration charged us with two main tasks -- to provide assistance in the development of the new treaty and to ensure that the treaty reflect the core concepts of American disability law. We successfully followed President Bush’s directions: the Disabilities Convention follows our U.S. principles. Its focus is nondiscrimination, ensuring that persons with disabilities enjoy the same rights as other citizens. Like the ADA, its rights are tempered by limitations. Reasonable accommodation is required but only if the modification is necessary and appropriate and only if it does not impose a disproportionate or undue burden. While the treaty does not itself contain a definition of disability, its guidelines for what constitutes a person with a disability conform closely to the definitions found in U.S law. In fact, the revised ADA definition of a person with a disability, adopted in 2008 in the Americans with Disabilities Act Amendments Act, and signed into law by President Bush, fully comply with the concepts of the treaty.

And the comprehensive nature of the treaty mirrors the U.S. approach to disability rights. Both recognize that persons with disabilities will not be able to enjoy equal opportunity unless there is broad coverage. Having an education loses its meaning if jobs are foreclosed to students with disabilities. Nondiscrimination in employment will not be meaningful unless persons can get to work on accessible transportation. Having a job will lose its meaning if persons are unable to enjoy the fruits of their labor, from dining at a restaurant, going to a movie, or traveling across the country. Thus, then, like U.S. law, the Disabilities Convention is comprehensive in its approach. It addresses access to facilities, political participation, access to justice, access to education, employment, health care, participation in public and cultural life, recreation, leisure activities, and sports. It upholds freedom of expression, access to information, the ability to live independently in one’s own community, and freedom from torture and other cruel, inhuman, or degrading treatment.

In sum, the Disabilities Convention is an embodiment of the nondiscrimination principles developed in the United States. Its principles and, indeed, its language, come directly from U.S. law.