February 12, 2008

ADA Restoration Act: The Fix Needs Fixing

The Americans with Disabilities Act of 1990 attempted, among other things, to eliminate workplace discrimination against people with disabilities. No one can argue with the goal. Over the years, problems have emerged in determining who meets the ADA definition of disabled. Nearly sixteen years after full implementation of the law, this remains a murky area in need of clarification.

Under the ADA's original definition, a disability was something that limited "one or more major life activities" such as standing, walking and breathing. In the view of the U. S. Supreme Court, a person who can successfully use a mitigating device (hearing aid, corrective lenses, medication, etc.) is by definition no longer disabled. And because the person is not disabled, they are no longer protected by the ADA. Your basic "Catch 22."

By stripping away protection from at least some people who might be considered disabled, the Supreme Court appears to go against the original intent of the Act. So Congress wants to fix it. They have drafted the ADA Restoration Act, through which they intend to make the intent of the law so clear, even a Supreme Court Justice will understand it:

Sec 7. Rule of Construction
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.

In other words, when in doubt, assume a person is disabled and act accordingly.

Clarity or Confusion?
Under the Restoration Act, the definition of disability becomes much broader and all-encompassing. The "substantially limits" criterion has been dropped. Transient injuries or temporary adjustment problems appear to be covered. (The proposed bill could easily merge workers comp claims with the ADA, thereby creating a litigator's paradise.) The draft law includes impairments that are "episodic, in remission or latent." It includes "emotional illness" and "specific learning disabilities." The new definition is so broad, many of us would be eligible at one time or another.

The generous definition of disability could well have an unintended consequence: by expanding eligibility, the new law would lose its focus on the people who need protection the most - those who face persistent and profound obstacles in their effort to secure or maintain employment. Another consequence would harm employers, already burdened by the exacting procedural standards governing their behavior under the ADA. More inclusive eligibility would open the door to potentially frivolous claims.

Ironically, in the years since its implementation, the ADA may have had a negative impact on employment of the disabled: it appears that overall levels of employment for the disabled actually declined after ADA implementation in 1992. Employers avoided the problem with a "when in doubt, leave them out" approach. Rather than risk running afoul of the new law, many employers apparently turned their collective backs on all disabled applicants (and in doing so, violated the ADA!).

In the draft law's current form, "restoration" is a misnomer. The act would significantly expand the umbrella of protection to millions of people not currently covered. In solving one very real problem (a narrowing interpretation of eligibility), another has been created: blurred eligibility lines that are too inclusive for practical purposes. The reform legislation needs some reforming. Congress should keep its focus where it is needed most: on Americans with legitimate, long-term, life-altering disabilities, people whose access to productive work has been hindered by artificial barriers. The original ADA was a good beginning. The Restoration Act in its current form is a giant step in the wrong direction.

| 2 Comments

2 Comments

Your best written article to date. Is this in committee, on the floor? Legislators need to be clear and hopefully have hearings on this jem!

This is rediculous, saying the restoration act is a step in the wrong direction. The ADA restoration act will further the coverage of people who are not being coverd. It will stop the recent legislation that keeps people from being covered, if they are accomodated. Such as someone with epelepsi losing their job, legaly because they aren't considerd coverd under the ADA because they are on medication to help them. As for those who will be covered if the act was passed, the rumors of people with tennis elbow, and other rediculous things said to be covered are untrue. Is it any suprise that these were started by the chamber of commerce who has been against the ADA all along, trying to protect the business' money, keeping them from spening on accomodation. I am 100% for this act, and everything it stand's for.

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This page contains a single entry by Jon Coppelman published on February 12, 2008 7:30 AM.

Safety blog coverage of the sugar refinery explosion: frustration with OSHA was the previous entry in this blog.

Cavalcade of Risk, plus a look at celebrity body parts and the matter of risk is the next entry in this blog.

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