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

Fri Dec 21 13:35:06 CST 2007

Right now it's a moot point as most people stare blankly when the ADA is 
even mentioned. The current laws are not even enforced, so why worry about 
the new law? Bobbie
----- Original Message ----- 
From: "T. Joseph Carter" <tjcarter at bluecherry.net>
To: "NFBnet Blind Talk Mailing List" <blindtlk at nfbnet.org>
Sent: Thursday, December 20, 2007 11:48 PM
Subject: Re: [Blindtlk] FW: Congress Fast-Tracks Dramatic Expansion of ADA


>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.
>>
>>
>> _______________________________________________
>> blindtlk mailing list
>> blindtlk at nfbnet.org
>> http://www.nfbnet.org/mailman/listinfo/blindtlk
> _______________________________________________
> blindtlk mailing list
> blindtlk at nfbnet.org
> http://www.nfbnet.org/mailman/listinfo/blindtlk
>
>
> -- 
> No virus found in this incoming message.
> Checked by AVG Free Edition.
> Version: 7.5.516 / Virus Database: 269.17.5/1191 - Release Date: 
> 12/20/2007 2:14 PM
>
>