REVISITING THE ADA
Dear ABILITY Readers,
Recently, the ADA Amendments Act was signed into law, and I was proud to be its chief sponsor. When it is enacted in early 2009, the legislation will allow us to fulfill the original promise of the Americans with Disabilities Act.
As you may know, the ADA was one of the landmark civil rights laws of the 20th century, and helped us make enormous progress in advancing the four goals of the ADA: equality of opportunity, full participation, independent living and economic selfsufficiency.
Despite these strides, we have left some people with disabilities behind. The problem is a series of Supreme Court decisions, which have greatly narrowed the scope of who is protected by the ADA. First of all, these cases held that mitigating measures, such as medication, prosthetics, or other assistive devices, must be considered in determining whether a person has a disability under the ADA. Secondly, they asserted that there must be a demanding standard in assessing whether an individual has a “disability.”
As a result, people with conditions that common sense tells us are disabilities, are being told by courts that they are not disabled, and thus not eligible for protections under the law.
When I explain to people what the Supreme Court has done, they are shocked. Impairments that the Court says are not to be considered disabilities—at least in some cases—include amputation, intellectual disabilities, epilepsy, multiple sclerosis, diabetes, muscular dystrophy and cancer.
Together, these cases, as handled by the nation’s highest court, have created a supreme absurdity: The more successful a person is at coping with a disability, the more likely it is for a court to find that he or she is no longer sufficiently disabled to be protected by the ADA. If that is the ruling, then these individuals may find that their requests for reasonable accommodations at work can be denied. Or that they can be fired—without recourse.
This is the Catch 22 that confronts countless people with disabilities, and is clearly not what I intended, nor what Congress intended, when we passed the ADA in 1990.
It boggles the mind that any court would rule that, for instance, multiple sclerosis or muscular dystrophy, is not a disability covered by the ADA. But that is where we are today.
These Court decisions have restricted the coverage and diminished the Civil Rights protections of the ADA, especially in the workplace. As a result, lower court cases have too often turned solely on the question of whether the plaintiff is an individual with a disability, rather than the merits of the discrimination claim. They may not have considered whether an adverse employment decision was impermissibly made on the basis of disability, whether reasonable accommodations were inappropriately denied, or whether qualification standards were unlawfully discriminatory.
The ADA Amendments Act will restore the proper balance and application of the ADA by clarifying and broadening the definition of disability, while increasing eligibility for ADA protections. It is my expectation that under this legislation, people who may have been denied coverage under the earlier version of the ADA, will now be covered.
And this is important, particularly in an employment context because, according to recent data, more than 60 percent of individuals with disabilities are unemployed. Many want to work and, if they given the opportunity, prove exemplary employees. Sometimes, all they need is a chance—and a reasonable accommodation.
The ADA Amendments Act renews our promise to all Americans with disabilities by taking several specific and general steps, which direct courts toward a more generous meaning and application of coverage under the law.
—Overturns the basis for the reasoning in the Supreme Court decisions that have been so problematic for so many people with very real disabilities.
—Fixes the “mitigating measures” problem by clearly stating that mitigating measures are not to be considered in determining whether someone is entitled to the protections of the ADA.
—Makes it easier for people with disabilities to be covered by the ADA by expanding the definition of disability to include many more major life activities, as well as a new category of major bodily functions. This latter point is important for those with immune disorders, or cancer, or kidney disease, or liver disease.
—Rejects the current EEOC regulation that says “substantially limits” means “significantly restricted” as too high a standard, and directs that the regulation be rewritten in a less stringent way.
—Revives the “regarded as” prong of the definition of disability, and makes it easier for those with physical or mental impairments to be able to seek relief if they have been subjected to an adverse action because of their disability.
—Contains a broad construction provision, which instructs the courts and the agencies that the definition of disability is to be interpreted broadly, to the maximum extent permitted by the ADA.
People with disabilities deserve equality, opportunity, access and freedom. On January 1, 2009, when the ADA Amendments Act goes into effect, we will continue to work toward the day when this will become a reality for all Americans.
Senator Tom Harkin