Major Progress on ADA Restoration: A Potential Deal with the Business Community

Note: The ADA Restoration Act is now known as the ADA Amendments Act.

• Information for NCIL Advocates
  
  
• Post-Mark Up Bill Language (new)
  
  
• Bill Summary
  
  
• Chart: How the Proposed Deal Fixes Courts’ Restrictive Intepretations of the ADA (Word Document)

ADA Amendments Act Passes the House, On to the Senate!

Congratulations, Advocates! On Wednesday, June 24, the US House of Representatives approved the ADA Amendments Act of 2008, HR 3195, formerly known as the ADA Restoration Act, by a vote of 402-17! View the House-passed bill (PDF). The bill will now go to the Senate for consideration and your senators need to hear from you. You can reach your senators online or through the Capitol Switchboard at 1-(800) 828-0498 or (202) 224-3121.

During House consideration of the ADA Amendments Act, Education and Labor Committee Chairman George Miller (D-CA) thanked Independent Living leaders Ed Roberts and Judy Heumann, among others who paved the way for passage of the Americans with Disabilities Act of 1990.

The chief sponsor of the bill, the House Majority Leader Steny H. Hoyer (D-MD) dedicated the bill to Justin Dart, Father of the ADA. Recounting the importance of restoring the ADA, Hoyer said the current situation is now bizarre. “An individual may be considered too disabled by an employer to get a job, but not disabled enough by the courts to be protected by the ADA from discrimination.”

Lawmakers said Wednesday that people with epilepsy, diabetes, cancer, cerebral palsy, multiple sclerosis and other disabilities had been improperly denied protection because their conditions could be controlled by medication or were in remission. In a Texas case, for example, a federal judge said a worker with epilepsy could not be considered disabled because he was taking medications that reduced the frequency of seizures.

In deciding whether a person is disabled, the bill says, courts should generally not consider the effects of “mitigating measures” like prescription drugs, hearing aids and artificial limbs. Moreover, it adds, “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” Read background information about the ADAAA.

Representative John Conyers (D-MI), Chairman of the House Judiciary Committee, reminded everyone that the ADA and the ADAAA are civil rights laws, which are meant to be interpreted broadly. He said that the Supreme Court’s ADA decisions were incorrect and an indication that the Court is off track on civil rights.

NCIL Members Take Action: Tell senators to pass the ADA Amendments Act, HR 3195, before July 4th!

1. Join the hundreds of national, state and local disability organizations that have signed on in support of ADA Restoration NOW!  Be part of history, do it NOW!

2. On Tuesday, June 24th, call or fax a letter to your Senators and tell them to vote for the ADA Amendments Act of 2008, HR 3195 as passed by the House. This bill, HR 3195 has been changed to reflect the deal the business and disability communities reached – Tell the Senate to Pass the Bill with no Changes, No Amendments!

For more information, contact NCIL Policy Analyst Deb Cotter by email deb@ncil.org with “ADA Amendments Act” in the subject line, by phone (202)207-0334, ext. 1008.

Dear Fellow Independent Living Advocates,

Over the past few months, I have had the opportunity to work with colleagues from over 100 disability organizations to help negotiate a deal to restore the Americans with Disabilities Act of 1990 (ADA). As outlined below, NCIL governance, working closely with our ADA/Civil Rights Subcommittee, has agreed to move ahead with the business community and Congressional leaders to reach agreement on legislative language that will restore anti-discrimination provisions of the Americans with Disabilities Act of 1990, reversing several Supreme Court rulings that had eroded these civil rights protections.

A handful of disability community and business community negotiators have reached a proposed “deal.” Both communities are now vetting this deal with their constituencies.

I urge NCIL Members to carefully consider the deal outlined below in the context of the current political environment and provide NCIL governance with your feedback before noon EST on Thursday, May 22nd.

The NCIL ADA/Civil Rights Subcommittee and Executive Committee studied and support the proposed negotiated deal language. At the end of this document you will see the draft deal language and I am also attaching a chart summarizing how the deal restores the ADA as currently interpreted by the courts.

Sincerely,

John A. Lancaster, Executive Director

Summary of Current Status on ADA Restoration

This is a key week for ADA Restoration. After thirteen weeks of negotiations with the business community, endless drafting and redrafting of legislative language, and numerous meetings and calls for internal vetting within our own community, we have potential deal language that can radically improve the legal outcomes of people with disabilities who try to bring employment discrimination cases but who have been turned away by the courts for almost ten years now.

Time is of the essence. In order to have any chance of passing this legislation in this Congress given the full Congressional calendar and the growing focus on the upcoming Presidential and Congressional elections, we must know where we stand as we enter this holiday weekend to enable us to put things into motion early next week. For that reason, both the disability and business communities have agreed to come to decision on this language – whether or not we will accept and support the proposed deal – by close of business this Thursday, May 22.

Why do we need ADA Restoration?

Almost eighteen years ago, Congress passed and President H.W. Bush signed the Americans with Disabilities Act (ADA), a civil rights law promising freedom and equality for people with disabilities in public transportation, businesses, public programs and services, and the workplace. Borrowing the definition of disability from Section 504 of the Rehabilitation Act of 1973, as amended, Congress intended the ADA to stop employers from making employment decisions based on a person’s current, past, or perceived disability. 

Under current law, the ADA defines an individual with a disability as an individual with a physical or mental impairment that substantially limits a major life activity, an individual with a history of such impairment, or an individual who is regarded or perceived as having such impairment.

Unfortunately, since 1999, the courts have dramatically scaled back the ADA definition to the point where it bears little resemblance to the robust civil rights law that Congress passed in 1990. In a series of Supreme Court cases, the Court decided that the use of medication, prosthetics, hearing aids, auxiliary devices, etc. must be considered when a court is determining if someone is covered under the law. That means that people with all kinds of disabilities who enjoy greater independence (including the ability to work) on account of medication, hearing aids, specific diets, prosthetics, etc., are often no longer covered under the ADA because the courts view their limitations as no longer substantial “enough.” Courts have even denied ADA protection to those whose employers have freely admitted that they terminated the individuals because of their disabilities!

The ADA was meant to be just like other civil rights laws that address employment discrimination – when someone experiences discrimination because of disability, the sole focus of the legal case should be on whether the actions of the employer were unlawful. However, the Courts have created an extra hoop for people with disabilities to challenge an employer’s actions. First, people with disabilities must “prove” their disability by providing highly personal and often wholly irrelevant information about their lives. Only if they have satisfied this difficult standard are they then permitted to present the facts of discrimination they encountered and increasingly, fewer and fewer people are able to get to that point.

Instead of following Congress’s clear intention that the definition of “disability” in the ADA be interpreted broadly, the Supreme Court decided to ignore Congressional intent and directed that the definition of disability needed to be interpreted narrowly. As a result, there have been hundreds of court cases with bizarre and devastating outcomes with the courts siding with the employer rather than individuals who faced discrimination more than 90% of the time. People with epilepsy, muscular dystrophy, multiple sclerosis, diabetes, cancer, HIV, intellectual disabilities (formerly known as “mental retardation”), hearing loss, major depression, PTSD, bipolar disorder, and many other disabilities are consistently being told they are not “disabled enough” and therefore not covered by the ADA.

By watering down civil rights protections for people with disabilities, the courts have created an unacceptable U-turn in the progress people with disabilities have made to date and have made it legal for an employer to say “You are not welcome here” to people with disabilities who have skills and who want to work.

We knew we needed to act.

What have we done to fix these problems?

In 2004, the National Council on Disability (NCD), the same independent federal agency that drafted the original ADA, published a report entitled “Righting the ADA”, which harshly criticized the Supreme Court decisions referenced above. Among its recommendations on how to remedy problems created by the Supreme Court was proposed legislative language to fix the definition of disability in the ADA from the damage done by the interpretations it had received by the courts.

While the devastation created by the courts was obvious to everyone, there was widespread concern within the community of “opening” the ADA up for legislative fixes due to fears that the opponents of the law would attempt to water down other protections. For several years, internal discussions within the community revolved around when and how best to address the damage done by the courts.

Then in September of 2006, after much discussion with the community and with the NCD report language as a basis, then House Judiciary Committee Chairman Jim Sensenbrenner and then House Minority Whip Steny Hoyer introduced H.R. 6258, the ADA Restoration Act of 2006. While the legislation did not receive any action, advocates used its introduction to strategize for the next Congress.

In 2007, on the 17th anniversary of the signing of the original ADA, Congressman Sensenbrenner and now Majority Leader Hoyer introduced H.R. 3195, the ADA Restoration Act of 2007 (the companion bill, S. 1881, was introduced in the Senate on the same day by Sens. Tom Harkin and Arlen Specter). On the day of its introduction, due to the tireless efforts of disability advocates, there were 143 original co-sponsors in the House. That number has since risen to 245 co-sponsors. 

Why did we even enter into negotiations with the business community in the first place?

Despite the high number of House co-sponsors of the legislation, at the same time that the disability community was visiting the offices of Members of Congress to urge co-sponsorship and support of ADA Restoration, members of the business community were also hard at work, delivering a message to many of the same offices that the legislation goes “too far” and will hurt businesses.

Concerned that Members of Congress sympathetic to the business community’s interests would attempt to alter or amend the legislation in damaging ways, Congressional champions of the bill, including Majority Leader Steny Hoyer, encouraged the disability community to meet with the business community to discuss the legislation in the hope that mutually agreed-upon language would emerge. The understanding and goal of both sides was to attempt to craft language that could be mutually defended through the entire legislative process to increase the likelihood of successful passage of a “clean” bill in the House and Senate during this year – one free of amendments or other unforeseen changes.

Since February 19, 2008, the disability community, with leadership from the American Association of People with Disabilities (AAPD), the National Council on Independent Living (NCIL), the Bazelon Center on Mental Health Law, the National Disability Rights Network (NDRN), and the Epilepsy Foundation, and business community have been in negotiations around the legislative language with the understanding that if a deal is reached, both sides will defend the deal and that if any minor clarifications or amendments are put forward during the legislative process, both sides must agree to them.

How does the proposed deal change the ADA?

The proposed deal language:

• Requires that the definition of disability be interpreted broadly;
  
  
• Prohibits courts from considering the effects of medication, prosthetics, hearing aids, etc. when determining whether a person meets the ADA’s definition of disability;
  
  
• Defines “disability” as any actual, past, or perceived physical or mental impairment that “substantially limits a major life activity” and then defines this phrase to mean “materially restricts a major life activity;”

• Includes a broad definitional section listing a wide range of major life activities that is intended to restore coverage for many of the groups who have been interpreted out of the ADA by the courts, and

• Includes a broad “regarded as” prong that will provide civil rights protection to anyone who is adversely treated based on a physical or mental impairment.

The proposed deal provides examples of “major life activities” in its definition section which helps to set the record straight where the courts have wrongly interpreted the term narrowly in the past. The non-exhaustive list includes but is not limited to: “caring for oneself, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” The language also includes a list of “major bodily functions” as part of the definition of “major life activities.”

In addition, the proposed deal language expressly rejects the Supreme Court cases which have created the mess which we seek to remedy. It also makes clear that for someone whose disability is episodic (such as with epilepsy) or in remission (such as with cancer), for purposes of establishing their eligibility for the ADA’s protections, they are to be considered when their disabilities are active, meaning they will not be shut out of protections if they are discriminated against because of their disabilities simply because they are not currently experiencing the symptoms associated with their disabilities in their active state.

In summary, under the deal language, if a person is discriminated against because of an actual, past, or perceived physical or mental impairment, regardless of severity (except for transitory and minor impairments like the common cold or flu), s/he is eligible for protection under the ADA but not for a reasonable accommodation. However, if a person requests a reasonable accommodation and is materially restricted in a major life activity, s/he would be eligible for a reasonable accommodation.


How does the proposed deal help the disability community?

Right now, all across America, a multitude of people with a wide range of disabilities are shut out of their civil rights protections on account of the Supreme Court’s narrow interpretation of what was intended to be our great civil rights law. As referenced earlier, more than 90% of the time, courts throw out the legal cases of people with disabilities before they even have a chance to prove the facts of discrimination because they decide that they are not “disabled enough” to warrant the law’s protections in the first place.  If we don’t pass ADA Restoration legislation, it is not clear how much further the courts will go in narrowing the scope of the ADA’s protected class.  Any person with a disability who is able to work and live independently is at risk of being found not disabled “enough” for civil rights protections in the workplace given the decisions that we have seen in the federal courts.

In fact, just days after one of the Supreme Court decisions, cases of disability employment discrimination that were being considered – some of which involved employers who openly admitted to discriminating on the basis of disability – were thrown out of court because of the Supreme Court’s decision. Disability advocates around the country have for years reported the “chilling effect” of the Supreme Court’s decisions on efforts to bring disability employment discrimination cases, with lawyers often telling them that there is little hope in winning such a case.

Given the current political climate, the proposed deal language gives us our best shot of getting fixes to the ADA passed in this Congress and restoring the civil rights of people from across our community who have been told they don’t have any.  Advocates at NCIL, AAPD and others who have worked on this legislation are not convinced that we will do better in the next Congress, in part because the business community’s views will be taken seriously by many Democrats and Republicans in any Congress.

The deal language stays in line with the goal of ADA Restoration, which is to restore Congress’ intent for the focus of an ADA employment claim from whether someone is “disabled enough” to whether someone was treated unfairly on the basis of disability.

What happens if we accept the deal?

If the disability community agrees to this deal language, we will work closely with our Congressional champions to move quickly to pass the revised legislation in the House of Representatives and the Senate.   Our goal is to have the legislation passed by this Congress and signed by President Bush before October. It will be difficult to make this happen with out the extremely active support from and active participation of our grassroots Independent Living network.

Please send comments, questions, or concerns to NCIL Policy Analyst Deb Cotter by email, deb@ncil.org with “ADA Restoration Comments” in the subject line or fax (202) 207-0431. Not a NCIL Member? Visit www.ncil.org to join today!

SUMMARY OF PROPOSED DEAL TO RESTORE THE ADA

The proposed deal on the ADA Restoration Act of 2007 addresses the problems with the ADA’s definition of “disability” in the following ways:

1.  Changes to Definition of “Disability” (42 U.S.C. § 12102)

The proposed deal amends the definition of “disability” so that people whom Congress originally intended to protect from discrimination are covered under the ADA.  Specifically, the proposed deal: 

(i) defines disability as any actual, past, or perceived physical or mental impairment that “substantially limits a major life activity,” and then defines this phrase to mean “materially restricts a major life activity”;

(ii) includes a non-exhaustive list of major life activities drawn from Equal Employment Opportunity Commission regulations;

(iii) includes statutory findings explicitly rejecting the Supreme Court’s decisions in Sutton and Williams;

(iv) includes a per se list that relieves a large group of people with frequently-litigated impairments from having to demonstrate a material restriction of a major life activity;

(v) includes a broad “regarded as” prong that covers everyone who is adversely treated based on a physical or mental impairment (except for those with transitory and minor impairments like the cold or flu);

(vi) adds several rules of construction to the definition of disability that reject past court interpretations:

- a rule directing courts to construe the definition of disability broadly;

- a rule prohibiting courts from considering the ameliorative effects of mitigating measures (courts are free to consider the ameliorative effects of ordinary eyeglasses, but an employer may not screen out people with ordinary eyeglasses unless there is a business necessity for doing so pursuant to 42 U.S.C. § 12112(b)); and

- rules prohibiting consideration of whether the manifestations of an impairment are episodic or in remission; specifying that a person need only be limited in one major life activity; clarifying that reasonable accommodations are not allowed under the “regarded as” prong; and addressing disability determinations where learning disabilities are at issue;

(vii) adds a rule of construction clarifying that disability determinations under the ADA do not establish eligibility under state worker’s compensation laws or other disability benefits programs.

2.  Changes to Title I Discrimination/Defenses Sections (42 U.S.C. §§ 12112 - 12113)

The proposed deal prohibits discrimination “on the basis of disability.”  This change harmonizes the ADA with other civil rights laws by focusing on whether a person who has been discriminated against has proven that the discrimination was based on a personal characteristic (disability), not on whether he or she has proven that the characteristic exists (42 U.S.C. § 12112(a)).

The proposed deal also guards against reverse discrimination claims by clarifying that discrimination “on the basis of disability” means discriminating against an individual with a disability (42 U.S.C. § 12112(b)).

3.  Changes to Codified Findings

The proposed deal modifies two findings in the ADA that had been used by the courts to support a narrow reading of “disability.”  Specifically, the proposed deal strikes the ADA finding pertaining to “43 million Americans” (42 U.S.C. § 12101(a)(1)) and the ADA finding pertaining to “discrete and insular minority” (42 U.S.C. § 1201(a)(7)).
 
4.  Changes to Regulatory Authority

The proposed deal authorizes the Attorney General, the EEOC, and the Secretary of Transportation to issue regulations on the definition of disability.

Again, please send comments, questions, or concerns to NCIL Policy Analyst Deb Cotter by email, deb@ncil.org with “ADA Restoration Comments” in the subject line or fax (202) 207-0431. Not a NCIL Member? Visit www.ncil.org to join today!