[Blindtlk] FW: Congress Fast-Tracks Dramatic Expansion of ADA

[T. Joseph Carter]

I don't know that I support this completely.

While it's true the ADA is easily circumvented and the courts have applied
the narrowest of interpretations to the law, consider this:  A person has
bi-polar disorder that is adequately controlled by medication.  The meds
flatten the peaks and fill in the valleys, but the cycle remains and you
do have manic and depressed days.  Not as much either way, though.  When
depressed, they may stop taking their medication, thinking it'll get them
back to a manic stage.  When manic, they may stop so they can benefit from
the biological high.

The manic state can be a little annoying for co-workers, but it's mostly
harmless.  The depressed state can really impact the workplace, clients or
customers, co-workers, and basically anybody who walks in the door.  Now,
a person with bi-polar disorder has every right to choose whether or not
to take their medication.  However, I believe that I as an employer also
have the right to say that if their choice interferes with their work, I
have a right to replace them with someone who will make better choices.

In California, that person could claim that I'm discriminating against
them on the basis of their disability by not providing them a reasonable
accommodation for their mental illness.  In California, they'd win that
argument as far as the legal system is concerned because I am not legally
allowed to consider the pill bottle in their desk drawer that they've
decided to stop taking.

The ADA, with precedent set by the supreme court, does not grant them the
right to choose not to take their medication and demand that I make some
accommodation or allowance for the outcome.

As these bills are presently written, that would change.  It shouldn't.


I support the expansion of disability to properly cover medical and
recognized psychological conditions, though I would like to some real
consideration of what precisely does "reasonable" mean.

Actually, I would like some real analysis of what's reasonable anyway.  A
number of people believe the ADA does a great job of requiring physical
access to public places for people in wheelchairs, but presently I can
find places in my region that claim they are not required because they
provide reasonable accommodations otherwise.  I disagree that it is
reasonable, for example, to say that a restaurant need not install a ramp
because a couple of waiters can bodily lift a person and their chair up
the steps.

The ADA does require revision, in my opinion, to prevent abuse.  That
abuse cuts both ways, though.  On one hand you have people claiming
anything is a disability and that you must give them exactly what they
want as an accommodation.  That's not acceptable.  On the other, you have
people refusing to provide reasonable accommodation because they claim a
clearly unreasonable accommodation is sufficient.  That's not acceptable
either.

The issue seems to be how to properly, objectively define disability and
reasonableness.


On Thu, Dec 20, 2007 at 04:02:12PM -0600, David Andrews wrote:
> 
> >
> >Congress Fast-Tracks Dramatic Expansion of ADA
> >
> >By Allen Smith
> >
> >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
> ><http://thomas.loc.gov/home/gpoxmlc110/h3195_ih.xml>  and S. 1881
> ><http://thomas.loc.gov/cgi-bin/query/D?c110:1:./temp/~c110yuvsAf::>
> >)
> >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.
> >
> >__________________________________
> >Elaine E. Katz
> >Vice President of Grant Programs and Special Initiatives
> >The Henry H. Kessler Foundation
> >300 Executive Drive, Suite 300
> >West Orange, NJ 07052
> >973.324.8367 Telephone
> >973.324-8373. Fax
> >Email: ekatz at hhkfdn.org
> >Website: www.hhkfdn.org
> 
> David Andrews and white cane Harry.
> 
> 
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