Congress Fast-Tracks Dramatic Expansion of ADA
By Allen Smith / SHRM

The Americans with Disabilities Act (ADA) Restoration Act is “moving at warp speed” through Congress, Larry Lorber, an attorney with Proskauer Rose in Washington, D.C., said in a Dec. 10, 2007, interview.

The legislation (H.R. 3195 and S. 1881) would strike the concept of “substantial limitation of a major life activity” from the ADA’s definition of “disability” and extend the law’s coverage to anyone with a physical or mental impairment.

The ADA Restoration Act also would prohibit employers from considering the effect of mitigating measures, such as glasses or medication, when determining whether someone requesting accommodation has a disability, overturning the Supreme Court’s ruling on this issue in Sutton v. United Airlines Inc. (527 U.S. 471 (1991)).

The ADA Restoration Act has substantial bipartisan support, according to Lorber. The House version already has 241 co-sponsors, which is enough to pass that chamber. Lorber said that former President George H. W. Bush, who signed the original ADA into law, is in favor of amending it.

Shades of California Law
The ADA Restoration Act goes well beyond restoration and, if enacted, would make the ADA similar to California’s prohibition on disability discrimination, Lorber predicted.

He explained that under the California Fair Employment and Housing Act, it is “difficult if not impossible for employers to successfully deal with claims” of disability discrimination.

David Fram, director of ADA and EEO services with the National Employment Law Institute, said in an interview that the ADA Restoration Act would create an even more expansive definition of “disability” than the California law. The California law at least requires that impairments limit major life activities before there is coverage.

Camille Olson, an attorney with Seyfarth Shaw in Chicago, told SHRM Online that when she talks with anyone in HR about the ADA Restoration Act, “they can’t believe what is being contemplated and say that it’s unworkable.”

Courts Criticized
When the Senate held hearings on the proposed amendment on Nov. 15, 2007, Olson was the only person who testified about the significant problems the expansion would pose for employers. “The entire discussion was that ‘we meant for this to be inclusive,’ ” she recalled.

At the Senate hearing, Chai Feldblum, professor of law at the Georgetown University Law Center, said that “in recent years, the Supreme Court has restricted the reach of the ADA’s protections by narrowly construing the definition of ‘disability’ contrary to congressional intent. As a result, people with a wide range of impairments whom Congress intended to protect, including people with cancer, epilepsy, diabetes, hearing loss, multiple sclerosis, HIV infection, intellectual disabilities, post-traumatic stress disorder and many other impairments, are routinely found not to be ‘disabled’ and therefore not covered by the ADA.”

Feldblum said that the result has been that plaintiffs lose most ADA employment discrimination claims. “Many of us believe the ADA today is not doing the job it was intended to do. We believe the technical words of the ADA have been misused and misapplied by the courts to exclude people who deserve coverage under the law,” she stated.

‘Double Whammy’
Most disability rights groups support the legislation.

In her testimony before the House of Representatives on Oct. 4, 2007, Cheryl Sensenbrenner, chairman of the board for the American Association of People with Disabilities, said that “despite all the progress since the passage of the ADA, sadly, we still have a long way to go before the ADA’s inclusive vision becomes a reality in America. For instance, I am amazed at how routinely kind and well-educated individuals with whom I interact assume that I acquired my disability after marrying my husband, Congressman F. James Sensenbrenner, by remarking how good it was of him to ‘stick by me’ through that. The fact of the matter is Jim and I fell in love and got married during a time in which I was already disabled. You see he ‘got me’ in a wheelchair or at best on Canadian crutches.”

She went on to say that courts have set up a “double whammy” for ADA plaintiffs. “First they must prove their disabilities through a series of invasive and often highly irrelevant inquiries into the most intimate aspects of their lives. Once they have satisfied this increasingly difficult standard, only then are they given the opportunity to present the facts of discrimination.”

‘Americans Act’
Fram is surprised that so many disability rights advocates support the bill.

“By putting toothaches on the same level as breast cancer or diabetes, it winds up diminishing the importance of someone with a more serious condition,” he remarked. Fram thought the legislation would make life more difficult for employers when workers with toothaches, earaches and the flu request reasonable accommodations, but he thought the simplified definition of who is covered “arguably would make it easier for an employer.”

However, Olson is troubled by the seemingly limitless coverage advocated by proponents of the ADA Restoration Act, saying that the legislation would transform the law into the “Americans Act.” Olson asked, “who among us does not have an impairment? Who is perfect?”

And if everyone is covered, employers may face such daunting new realities as “unlimited sick leave,” she added.
Olson anticipates that Congress will hold more hearings on the legislation and recommended that employers “voice their concerns about why this isn’t workable.”

Allen Smith, J.D., is SHRM’s manager of workplace law content.

This entry was posted on Monday, December 31st, 2007 at 8:30 am and is filed under Hiring, Human Resources, Legal, Termination. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.