Restoration of ADA

ADA Restoration & a Potential Deal with the Business Community

Summary of Current Status on ADA Restoration

This is a key week for ADA Restoration. After thirteen weeks of negotiations with the business community, endless drafting and redrafting of legislative language, and numerous meetings and calls for internal vetting within our own community, we have potential deal language. This language can radically improve the legal outcomes of people with disabilities who have tried to bring employment discrimination cases but who have been turned away by the courts for almost ten years now.

Time is of the essence. In order to have any chance of passing this legislation in this Congress given the full Congressional calendar and the upcoming focus on the elections, we must know where we stand as we enter this holiday weekend to enable us to put things into motion early next week. For that reason, both the disability and business communities have agreed to come to a decision on whether or not we will accept and support the proposed deal language by close of business this Thursday, May 22.

Why do we need ADA Restoration?

Almost eighteen years ago, Congress passed and President H.W. Bush signed the Americans with Disabilities Act (ADA), a civil rights law promising freedom and equality for people with disabilities in public transportation, businesses, public programs and services, and the workplace. Borrowing the definition of disability from Section 504 of the Rehabilitation Act, Congress intended the ADA to stop employers from making employment decisions based on a person's current, past, or perceived disability.

Under current law, the ADA defines an individual with a disability as an individual with a physical or mental impairment that substantially limits a major life activity, an individual with a history of such an impairment, or an individual who is regarded or perceived as having such an impairment.

Unfortunately, since 1999, the courts have dramatically scaled back the ADA definition to the point where it bears little resemblance to the robust civil rights law that Congress passed in 1990. In a series of Supreme Court cases, the Court decided that the use of medication, prosthetics, hearing aids, auxiliary devices, etc. must be considered when a court is determining if someone is protected under the law. That means that people with all kinds of disabilities who enjoy greater independence (including the ability to work) on account of medication, hearing aids, specific diets, prosthetics, etc., are often no longer protected under the ADA because the courts view their limitations as no longer substantial "enough." Courts have even denied ADA protection to those whose employers have freely admitted that they terminated the individuals because of their disabilities!

The ADA was meant to be just like other civil rights laws that address employment discrimination - when someone experiences discrimination because of disability, the sole focus of the legal case should be on whether the actions of the employer were unlawful. However, the Courts have created an extra hoop for people with disabilities to challenge an employer's actions. First, people with disabilities must "prove" their disability by providing highly personal and often wholly irrelevant information about their lives. Only if they have satisfied this difficult standard are they then permitted to present the facts of the discrimination they encountered. Increasingly, fewer and fewer people are able to get to this point.

Instead of following Congress's clear intention that the definition of "disability" in the ADA be interpreted broadly, the Supreme Court decided to ignore Congressional intent and directed that the definition of disability needed to be interpreted narrowly. As a result, there have been hundreds of court cases with bizarre and devastating outcomes -- with the courts siding with employers rather than individuals facing discrimination more than 90% of the time. People with epilepsy, muscular dystrophy, multiple sclerosis, diabetes, cancer, HIV, intellectual disabilities (formerly known as "mental retardation"), hearing loss, major depression, PTSD, bipolar disorder, and many other disabilities are consistently being told that they are not "disabled enough" and therefore not protected by the ADA.

By watering down civil rights protections for people with disabilities, the courts have created an unacceptable U-turn in the progress that people with disabilities have made to date. Courts have made it legal for an employer to say "You are not welcome here" to people with disabilities who have skills and who want to work.

We knew we needed to act.

What have we done to fix these problems?

In 2004, the National Council on Disability (NCD), the same independent federal agency that drafted the original ADA, published a report entitled "Righting the ADA", which harshly criticized the Supreme Court decisions referenced above. In its recommendations, NCD included proposed legislative language to remedy the problems created by the Courts' narrow interpretations of the definition of disability in the ADA.

While the devastation created by the courts was obvious to everyone, there was widespread concern within the community that "opening" the ADA up for legislative fixes would result in opponents of the law would attempting to water down other protections. For several years, internal discussions within the community revolved around when and how to best address the damage done by the courts.

Then, in September of 2006, after much discussion with the community and using the NCD report language as a basis, then House Judiciary Committee Chairman Jim Sensenbrenner and House Minority Whip Steny Hoyer introduced H.R. 6258, the ADA Restoration Act of 2006. While the legislation did not receive any action, advocates used its introduction to strategize for the next Congress.

A short time later, on July 26, 2007, the 17th anniversary of the signing of the original ADA, Congressman Sensenbrenner and now Majority Leader Hoyer introduced H.R. 3195, the ADA Restoration Act of 2007 (the companion bill, S. 1881, was introduced in the Senate on the same day by Sens. Tom Harkin and Arlen Specter). Due to the tireless efforts of disability advocates, there were 143 original co-sponsors in the House on the day of the bill's introduction. That number has since risen to 245 co-sponsors.

Why did we even enter into negotiations with the business community in the first place?

At the same time that the disability community has been visiting the offices of Members of Congress to urge co-sponsorship and support of ADA Restoration, members of the business community were also hard at work, delivering a message to many of the same offices that the legislation goes "too far" and would hurt businesses.

Concerned that Members of Congress who are sympathetic to the business community's interests would attempt to alter or amend the legislation in damaging ways, including some of the bill's own co-sponsors, Congressional champions of the bill, including Majority Leader Steny Hoyer, encouraged the disability community to meet with the business community to discuss the legislation in the hope that mutually agreed-upon language would emerge. The understanding and goal of both sides was to attempt to craft language that could be mutually defended through the entire legislative process to increase the likelihood of successful passage of a "clean" bill - one free of amendments or other unforeseen changes - in the House and Senate during this year.

Since February 19, 2008, the disability community, with leadership from the American Association of People with Disabilities (AAPD), the National Council on Independent Living (NCIL), the Bazelon Center on Mental Health Law, the National Disability Rights Network (NDRN), and the Epilepsy Foundation, has been in negotiations with the business community around the legislative language. . These groups have met with the understan.ding that, if a deal is reached, both sides will defend the deal and that if any minor clarifications or amendments are put forward during the legislative process, both sides must agree to them.

How does the proposed deal change the ADA?

The proposed deal language:

a.. Requires that the definition of disability be interpreted broadly;

b.. Prohibits courts from considering the effects of medication, prosthetics, hearing aids, etc. when determining whether a person meets the ADA's definition of disability;

c.. Defines "disability" as any actual, past, or perceived physical or mental impairment that "substantially limits a major life activity" and then defines this phrase to mean "materially restricts a major life activity;"

d.. Includes a broad definitional section listing a wide range of major life activities that is intended to restore coverage for many of the groups who have been interpreted out of the ADA by the courts, and

e.. Includes a broad "regarded as" prong that will provide civil rights protection to anyone who is adversely treated based on a physical or mental impairment

The proposed deal provides examples of "major life activities" in its definition section which helps to set the record straight where the courts have wrongly interpreted the term narrowly in the past. The non-exhaustive list includes but is not limited to: "caring for oneself, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working." The language also includes a list of "major bodily functions" as part of the definition of "major life activities."

In addition, the proposed deal language expressly rejects the Supreme Court cases which have created the mess which we seek to remedy. It also makes clear that for someone whose disability is episodic (such as with epilepsy) or in remission (such as with cancer), for purposes of establishing their eligibility for the ADA's protections, they are to be considered when their disabilities are active, meaning they will not be shut out of protections if they are discriminated against because of their disabilities simply because they are not currently experiencing the symptoms associated with their disabilities in their active state.

Under the proposed deal, people with a wide range of conditions like epilepsy, diabetes, depression, cancer, and muscular dystrophy will be able to come into the scope of the law's protection through a number of avenues. They can come in under a much broader "regarded as" prong, they can come in under a reconfigured first prong that includes the operation of important bodily functions as part of the definition of major life activities. And, probably most importantly, they can come in under the clarification that their conditions are to be assessed in the absence of any mitigating measures for purposes of deciding if they are substantially limited in a major life activity. For people with episodic conditions, the deal language also makes it clear that their conditions are to be assessed when their conditions are manifesting themselves, not when they are dormant or in remission. In sum, the proposed deal gives people with a wide range of disabilities many more tools for asserting their civil rights protections than they have under current law.

In summary, under the deal language, if a person is discriminated against because of an actual, past, or perceived physical or mental impairment, regardless of severity (except for transitory and minor impairments like the common cold or flu), s/he is eligible for protection under the ADA but not for a reasonable accommodation. However, if a person requests a reasonable accommodation and is materially restricted in a major life activity, s/he would be eligible for a reasonable accommodation.

How does the proposed deal help the disability community?

Right now, all across America, a multitude of people with a wide range of disabilities are denied their civil rights protections on account of the Supreme Court's narrow interpretation of what was intended to be our great civil rights law. As referenced earlier, more than 90% of the time, courts throw out the legal cases of people with disabilities before they even have a chance to prove the facts of discrimination because the courts decide that they are not "disabled enough" to warrant the law's protections in the first place. If we don't pass ADA Restoration legislation, it is not clear how much further the courts will go in narrowing the scope of the ADA's protected class. Any person with a disability who is able to work and live independently is at risk of being found not disabled "enough" for civil rights protections in the workplace given the decisions that we have seen in the federal courts.

In fact, just days after one of the Supreme Court's devastating ADA decisions, cases of disability employment discrimination- some of which involved employers who openly admitted to discriminating on the basis of disability - were thrown out of court because of the Supreme Court's decision. Disability advocates around the country have for years reported the "chilling effect" of the Supreme Court's decisions on efforts to bring disability employment discrimination cases, with lawyers often telling them that there is little hope in winning such cases.

Given the current political climate, the proposed deal language gives us our best shot at fixing the definition of "disability" under the ADA in this Congress and restoring the civil rights of people from across our community who have been told they don't have any rights. Advocates at NCIL, AAPD and others who have worked on this legislation are not convinced that we will do better in the next Congress, in part because the business community's views will be taken seriously by many Democrats and Republicans in any Congress.

The deal language is in line with the goal of ADA Restoration, which is to restore Congress' intent under the ADA by shifting the focus from whether a person is "truly" disabled, to whether the person was treated unfairly on the basis of disability - whether actual, past, or perceived.

What happens if we accept the deal?

If the disability community agrees to this deal language, we will work closely with our Congressional champions to move quickly to pass the revised legislation in the House of Representatives and the Senate. Our goal is to have the legislation passed by this Congress and signed by President Bush before October.

Please direct any questions, comments, or concerns to Anne Sommers at AAPDanne@earthlink.net .

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I am one of many people who employers and VocRehab consider "too disabled to work", but the courts consider "not bad enough to qualify as 'disabled'."  People who fall into the cracks are denied the help they need -- Social Services acknowledges that I clearly need assistance, but the law says they can't give it to me because I'm not officially "disabled"; you have to be either "disabled" or over 65 to qualify for In Home Support Services, and it looks like I'll get it by virtue of turning 65 long before any judge agrees with VocRehab that I'm not employable due to disability.

On the one side, a judge ruling on ADA-required accommodations said that a CFS patient who required "work when able" was too disabled to work.  On the other side, judges ruling on Disability applications have repeatedly stated that a CFS patient who can "work when able" is not disabled because they can occasionally work.

My SSDI judge has repeatedly said that "with your qualifications and experience, anyone should be happy to hire you and make any necessary accommodations."  Yet, when I talked to an attorney with ADA expertise about getting the accommodations I needed in order to be able to work, he gave me a list of cases to read that make it clear that the accommodations I need are far beyond what employers are required to give me.  In the current "bottom line first and foremost" business climate, it's not likely I'll find an employer willing to go above and beyond what the law mandates, so I remain too disabled to use ADA to get a job, but apparently not disabled enough to get SSDI benefits.