The ADA Restoration Act: What We All Need to Know

News From the Front

Written by: Stephen Kuusisto
Cross-posted on Planet of the Blind

The attack is on and the fight is fierce. The ADA Restoration Act is currently being debated in Washington and the proposed legislation which is designed to restore the employment protections that were crafted as part of the 1990 Americans with Disabilities Act is now under attack from groups that want to severely limit  the kinds of work place accommodations that employees can and should receive in order to remain gainfully employed.

Because the hosts of this blog are advocates for the full employment of people with disabilities and because the high rate of unemployment among the blind and visually impaired remains at catastrophic levels we want to alert our readers to the fact that the Society for Human Resource Management (a “Management” oriented group) has issued a call to arms urging its membership to fight against this crucial disability oriented legislation. Their tactic? They tell their membership that if the ADA Restoration Act is adopted employers will have to make accommodations for people with minor headaches or disfiguring scars—that is, the SHRM has argued to its membership that under the proposed act, the definition of disability is so broad that “virtually every employee” will be disabled and will require some kind of accommodation. This is absolute nonsense and the sophistry and misrepresentation of both the ADA and the ADA Restoration Act that are utilized in the service of this disinformation is really shameful. But to paraphrase Lou Reed (who said “you can’t always trust your mother”)—“you can’t always trust human resource management”.

My friend and former colleague Scott Lissner (who is the superb ADA Coordinator for The Ohio State University) has written the following altogether cogent summary of the ADA Restoration Act and this is, in our view, the most accurate and succinct summary of the proposed legislation. Please read on.

Posted with permission from Scott Lissner

I was asked to provide a quick analysis of the ADA Restoration Act that is working its way through congress for a group I belong to and I thought I would share. The legislation is quite short so I have included the full  House version (HR 3195) for your reference.  The findings and purposes provide context and are worth reading but I have I highlighted in red (and  reproduced  below) the two changes that I think represent the thrust of the Act. 

In a direct and succinct manner that is reminiscent of the 37 words that made up the original  text for Section 504  the ADA Restoration Act addresses how the courts have narrowed the definition of disability under the  ADA.  in two ways.  First clearly eliminating consideration of mitigating measures, latency,  and remission from the determination of disability.

“(i) The determination of whether an individual has a physical or mental impairment shall be made without considering the impact of any mitigating measures the individual may or may not be using or whether or not any manifestations of an impairment are episodic, in remission, or latent.

This would clearly widen the scope of who is protected from discrimination (exclusionary practices and prejudicial practices resulting in differential treatment) but would not directly expand who is entitled to an accommodation.  Though it is possible if fewer students, employees and program participants with disabilities are excluded there may be some  increase in the accommodations provided.

The second critical change puts the ADA in sync with other civil rights legislation by moving from protecting only qualified individuals with disabilities from discrimination to protecting all individuals from disability based discrimination.

"(1) in subsection (a), by striking “against a qualified individual with a disability because of the disability of such individual” and inserting “against an individual on the basis of disability”;

Again, this change widens the protection against discrimination but does not change the definition of reasonable accommodation

Currently the ADA Restoration Act is before the House Committee on Education & Labor and is scheduled for a  hearing  tomorrow, January 29 at 9:30 a.m.   Consider the potential impact of this legislation and contact your Representative and tell them what you think. Dennis Kucinich is the only Ohio Representative on the Committee.

110th CONGRESS
1st Session

H. R. 3195
To restore the intent and protections of the Americans with Disabilities Act of 1990.

IN THE HOUSE OF REPRESENTATIVES
July 26, 2007
Mr. Hoyer (for himself, Mr. Sensenbrenner, Mr. Ackerman, Mr. Allen, Mr. Andrews, Mr. Bachus, Ms. Baldwin, Mr. Berman, Mr. Bilbray, Mr. Bishop of New York, Mr. Blumenauer, Ms. Bordallo, Mr. Boswell, Mr. Boucher, Ms. Corrine Brown of Florida, Mr. Butterfield, Mr. Calvert, Mr. Cardoza, Mr. Carney, Mr. Chandler, Mr. Clay, Mr. Cleaver, Mr. Clyburn, Mr. Coble, Mr. Cohen, Mr. Conyers, Mr. Costa, Mr. Costello, Mr. Courtney, Mr. Cummings, Mr. Davis of Illinois, Mr. Tom Davis of Virginia, Mr. DeFazio, Ms. DeGette, Mr. Delahunt, Ms. DeLauro, Mr. Dingell, Mr. Dreier, Mr. Ehlers, Mr. Emanuel, Mrs. Emerson, Mr. Engel, Mr. English of Pennsylvania, Mr. Etheridge, Mr. Farr, Mr. Ferguson, Mr. Filner, Mr. Frank of Massachusetts, Mr. Franks of Arizona, Mr. Frelinghuysen, Mr. Gallegly, Ms. Giffords, Mr. Grijalva, Mr. Hall of New York, Mr. Hastings of Florida, Mr. Hinojosa, Mr. Holden, Mr. Holt, Mr. Honda, Mr. Israel, Mr. Issa, Mr. Jefferson, Mr. Johnson of Georgia, Mrs. Jones of Ohio, Ms. Kaptur, Mr. Kennedy, Mr. Kildee, Ms. Kilpatrick, Mr. Kind, Mr. King of New York, Mr. Kirk, Mr. Knollenberg, Mr. LaHood, Mr. Langevin, Mr. Lantos, Mr. Levin, Mr. Lewis of Georgia, Mr. Lewis of California, Mr. Loebsack, Ms. Zoe Lofgren of California, Mrs. Lowey, Mrs. Maloney of New York, Mr. Markey, Mr. Matheson, Ms. Matsui, Mrs. McCarthy of New York, Ms. McCollum of Minnesota, Mr. McDermott, Mr. McGovern, Mr. McHugh, Mr. McNulty, Mr. Miller of North Carolina, Mr. George Miller of California, Mr. Moran of Virginia, Mr. Patrick J. Murphy of Pennsylvania, Mr. Nadler, Mr. Neal of Massachusetts, Ms. Norton, Mr. Nunes, Mr. Oberstar, Mr. Payne, Mr. Perlmutter, Mr. Petri, Mr. Rahall, Mr. Ramstad, Mr. Rangel, Mr. Rodriguez, Mr. Roskam, Mr. Rothman, Ms. Roybal-Allard, Mr. Ruppersberger, Mr. Ryan of Wisconsin, Ms. Loretta Sanchez of California, Mr. Sarbanes, Ms. Schakowsky, Mr. Scott of Virginia, Mr. Shays, Ms. Shea-Porter, Ms. Slaughter, Mr. Smith of New Jersey, Ms. Solis, Mr. Souder, Mr. Space, Mr. Stark, Ms. Sutton, Mrs. Tauscher, Mr. Tiahrt, Mr. Tierney, Mr. Towns, Mr. Udall of New Mexico, Mr. Van Hollen, Mr. Visclosky, Mr. Walsh of New York, Ms. Wasserman Schultz, Ms. Watson, Mr. Waxman, Mr. Welch of Vermont, Mr. Weldon of Florida, Ms. Woolsey, Mr. Wynn, Mr. Young of Florida, Mr. Young of Alaska, Mr. Walz of Minnesota, Mr. McCotter, and Mr. Dicks) introduced the following bill; which was referred to the Committee on Education and Labor, and in addition to the Committees on the Judiciary, Transportation and Infrastructure, and Energy and Commerce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

A BILL
To restore the intent and protections of the Americans with Disabilities Act of 1990.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the “ADA Restoration Act of 2007”.

SEC. 2. FINDINGS AND PURPOSES.

(a) Findings.—Congress finds that—

(1) in enacting the Americans with Disabilities Act of 1990 (ADA), Congress intended that the Act “establish a clear and comprehensive prohibition of discrimination on the basis of disability,” and provide broad coverage and vigorous and effective remedies without unnecessary and obstructive defenses;

(2) decisions and opinions of the Supreme Court have unduly narrowed the broad scope of protection afforded in the ADA, eliminating protection for a broad range of individuals who Congress intended to protect;

(3) in enacting the ADA, Congress recognized that physical and mental impairments are natural parts of the human experience that in no way diminish a person’s right to fully participate in all aspects of society, but Congress also recognized that people with physical or mental impairments having the talent, skills, abilities, and desire to participate in society are frequently precluded from doing so because of prejudice, antiquated attitudes, or the failure to remove societal and institutional barriers;

(4) Congress modeled the ADA definition of disability on that of section 504 of the Rehabilitation Act of 1973, which, through the time of the ADA’s enactment, had been construed broadly to encompass both actual and perceived limitations, and limitations imposed by society;

(5) the broad conception of the definition had been underscored by the Supreme Court’s statement in its decision in School Board of Nassau County v. Arline, 480 U.S. 273, 284 (1987), that the section 504 definition “acknowledged that society’s accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment”;

(6) in adopting the section 504 concept of disability in the ADA, Congress understood that adverse action based on a person’s physical or mental impairment is often unrelated to the limitations caused by the impairment itself;

(7) instead of following congressional expectations that disability would be interpreted broadly in the ADA, the Supreme Court has ruled, in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 197 (2002), that the elements of the definition “need to be interpreted strictly to create a demanding standard for qualifying as disabled,” and, consistent with that view, has narrowed the application of the definition in various ways; and

(8) contrary to explicit congressional intent expressed in the ADA committee reports, the Supreme Court has eliminated from the Act’s coverage individuals who have mitigated the effects of their impairments through the use of such measures as medication and assistive devices.

(b) Purpose.—The purposes of this Act are—

(1) to effect the ADA’s objectives of providing “a clear and comprehensive national mandate for the elimination of discrimination” and “clear, strong, consistent, enforceable standards addressing discrimination” by restoring the broad scope of protection available under the ADA;

(2) to respond to certain decisions of the Supreme Court, including Sutton v. United Airlines, Inc., 527 U.S. 471 (1999), Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999), Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555 (1999), and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), that have narrowed the class of people who can invoke the protection from discrimination the ADA provides; and

(3) to reinstate original congressional intent regarding the definition of disability by clarifying that ADA protection is available for all individuals who are subjected to adverse treatment based on actual or perceived impairment, or record of impairment, or are adversely affected by prejudiced attitudes, such as myths, fears, ignorance, or stereotypes concerning disability or particular disabilities, or by the failure to remove societal and institutional barriers, including communication, transportation, and architectural barriers, and the failure to provide reasonable modifications to policies, practices, and procedures, reasonable accommodations, and auxiliary aids and services.

SEC. 3. CODIFIED FINDINGS.

Section 2(a) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12101) is amended—

(1) by amending paragraph (1) to read as follows:

“(1) physical or mental disabilities are natural parts of the human experience that in no way diminish a person’s right to fully participate in all aspects of society, yet people with physical or mental disabilities having the talent, skills, abilities, and desires to participate in society frequently are precluded from doing so because of discrimination; others who have a record of a disability or are regarded as having a disability also have been subjected to discrimination;”.

(2) by amending paragraph (7) to read as follows:

“(7) individuals with disabilities have been subject to a history of purposeful unequal treatment, have had restrictions and limitations imposed upon them because of their disabilities, and have been relegated to positions of political powerlessness in society; classifications and selection criteria that exclude persons with disabilities should be strongly disfavored, subjected to skeptical and meticulous examination, and permitted only for highly compelling reasons, and never on the basis of prejudice, ignorance, myths, irrational fears, or stereotypes about disability;”.

SEC. 4. DISABILITY DEFINED.

Section 3 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12102) is amended—

(1) by amending paragraph (2) to read as follows:

“(2) Disability.—

“(A) In general.—The term ‘disability’ means, with respect to an individual—

“(i) a physical or mental impairment;

“(ii) a record of a physical or mental impairment; or

“(iii) being regarded as having a physical or mental impairment.

“(B) Rule of construction.—

“(i) The determination of whether an individual has a physical or mental impairment shall be made without considering the impact of any mitigating measures the individual may or may not be using or whether or not any manifestations of an impairment are episodic, in remission, or latent.

“(ii) The term ‘mitigating measures’ means any treatment, medication, device, or other measure used to eliminate, mitigate, or compensate for the effect of an impairment, and includes prescription and other medications, personal aids and devices (including assistive technology devices and services), reasonable accommodations, or auxiliary aids and services.

“(iii) Actions taken by a covered entity with respect to an individual because of that individual’s use of a mitigating measure or because of a side effect or other consequence of the use of such a measure shall be considered actions taken on the basis of a disability under this Act.”.

(2) by redesignating paragraph (3) as paragraph (7) and inserting after paragraph (2) the following:

“(3) Physical impairment.—The term ‘physical impairment’ means any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine.

“(4) Mental impairment.—The term ‘mental impairment’ means any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, or specific learning disabilities.

“(5) Record of physical or mental impairment.—The term ‘record of physical or mental impairment’ means having a history of, or having been misclassified as having, a physical or mental impairment.

“(6) Regarded as having a physical or mental impairment.—The term ‘regarded as having a physical or mental impairment’ means being perceived or treated as having a physical or mental impairment whether or not the individual has an impairment.”.

SEC. 5. DISCRIMINATION ON THE BASIS OF DISABILITY.

Section 102 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12112) is amended—

(1) in subsection (a), by striking “against a qualified individual with a disability because of the disability of such individual” and inserting “against an individual on the basis of disability”; and

(2) in subsection (b), in the matter preceding paragraph (1), by striking “discriminate” and inserting “discriminate against an individual on the basis of disability”.

SEC. 6. QUALIFIED INDIVIDUAL.

Section 103(a) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12113(a)) is amended by striking “that an alleged application” and inserting
“that—

“(1) the individual alleging discrimination under this title is not a qualified individual with a disability; or

“(2) an alleged application”.

SEC. 7. RULE OF CONSTRUCTION.

Section 501 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12201) is amended by adding at the end the following:

“(e) Broad Construction.—In order to ensure that this Act achieves its purpose of providing a comprehensive prohibition of discrimination on the basis of disability, the provisions of this Act shall be broadly construed to advance their remedial purpose.

“(f) Regulations.—In order to provide for consistent and effective standards among the agencies responsible for enforcing this Act, the Attorney General shall promulgate regulations and guidance in alternate accessible formats implementing the provisions herein. The Equal Employment Opportunity Commission and Secretary of Transportation shall then issue appropriate implementing directives, whether in the nature of regulations or policy guidance, consistent with the requirements prescribed by the Attorney General.

“(g) Deference to regulations and guidance.—Duly issued Federal regulations and guidance for the implementation of this Act, including provisions implementing and interpreting the definition of disability, shall be entitled to deference by administrative bodies or officers and courts hearing any action brought under this Act.”.