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

[David Andrews]

>
>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.