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July 1, 2008

ADA: The Fix is Fixed

Back in February we blogged a rather drastic proposal to "restore" the Americans with Disabilities Act (ADA) by expanding eligibility to just about anyone. We feared that blurring the lines between transient conditions and impairments that "substantially limit" major life activities would paralyze American business, clog the courts with trivial cases and divert attention away from the truly disabled, who desperately need ADA protection.

Well, it appears that the "restoration" has been restored and the "fix" has been fixed. Proposed reforms would expand coverage where the U.S. Supreme Court had curtailed it: individuals whose disabilities can be treated - with medication, with prosthetic devices, with assistive technology - would still be considered disabled. In other words, their ADA protection would not end simply because their disability is mitigated through some form of treatment. (Got that, Justice Thomas?)

The fix also addresses the paradox of "regarded as" disability. This involves situations where an individual is discriminated against because he or she is perceived to have an impairment: "Jack looks like an alcoholic." These people do not require accommodation (they are not really disabled), but the ADA will ensure that they are not discriminated against based upon a false perception.

Formidable Support
While disagreement on the nature of disabilities will continue, substantial agreement has been reached on language for the revised ADA statute. Here are some of the organizations that have signed off on the proposed revisions:
- American Association of People with Disabilities
- American Diabetes Association
- Bazelon Center for Mental Health Law
- Epilepsy Foundation

No surprises there. But check out some of the mainstream business organizations that are also on board:
- National Association of Manufacturers
- National Restaurant Association
- US Chamber of Commerce

With such diverse and powerful backing, the ADA fix appears to be headed for passage. That's all well and good. But as we pointed out in February, there is a sad paradox in the ADA itself: since the law was enacted in 1992, overall levels of employment for the disabled have declined. Employers, intimidated by the law's many requirements, apparently take the path of least resistance and avoid hiring qualified disabled applicants. So in some respects the ADA "fix" compounds the problem. The real fix goes beyond the language of this or any other law: it involves transcending stereotypes and embracing people for who they really are and recognizing what they are truly capable of doing.

Posted by Jon Coppelman at 10:10 AM Link to, Comment (2), or E-mail this post

I'm confused. You indicate that the ADA has been fixed by expanding the definition of disability and this clarity will somehow prevent the clogging of the courts with trivial litigation. The "sad paradox", if it exists and i believe it does, will only grow while the cases of discrimination brought to the courts will increase proportionately to the conditions soon to be added to those considered to be disabilities covered by the act.
I grew up around adults with disabilities, worked with them at the Veterans Administration for several years and have some appreciation for reasonableaccomodations and the abilities they allow. I also have difficulty accepting that someone with poor but correctable eyesight needs the same protections as the person confined to a wheelchair. I believe that plaintiff and defense bars are celebrating this windfall piece of lawsuit pork, big-time. Just my opinion.

Posted by: Terry Storwick at July 1, 2008 11:13 AM

What a surprise-- a Federal remedy made the problem worse. Don't I recall that when some states mandated a base level of m/n benefits for health plans that this then became the ceiling? I see a lot of wheelchair ramps now-- and very few people using them. How did this happen? I have this odd feeling that the visibly disabled have just about vanished. When I was a kid in the 50s, I saw people with white canes and seeing eye dogs, or people on crutches, often with one pant leg rolled up, or people in wheelchairs commonly in LA. I learned early on how to shake hands with a man who had a hook in place of a right hand. Many, of course, were men who had been wounded in WW II, like my father.

Perhaps my old memory is just playing tricks on me, but I would swear that it's different now. I haven't used my left handed hand shake in many, many years. What happened?

Posted by: Gary Anderberg at July 1, 2008 1:54 PM
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