[Senate Hearing 110-773]
[From the U.S. Government Publishing Office]
S. Hrg. 110-773
RESTORING CONGRESSIONAL INTENT AND
PROTECTIONS UNDER THE AMERICANS
WITH DISABILITIES ACT
=======================================================================
HEARING
OF THE
COMMITTEE ON HEALTH, EDUCATION,
LABOR, AND PENSIONS
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
ON
EXAMINING THE AMERICANS WITH DISABILITIES ACT (PUBLIC LAW 101-336),
FOCUSING ON S. 1881, TO AMEND THE AMERICANS WITH DISABILITIES ACT OF
1990 TO RESTORE THE INTENT AND PROTECTIONS OF THAT ACT
__________
NOVEMBER 15, 2007
__________
Printed for the use of the Committee on Health, Education, Labor, and
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COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS
EDWARD M. KENNEDY, Massachusetts, Chairman
CHRISTOPHER J. DODD, Connecticut MICHAEL B. ENZI, Wyoming,
TOM HARKIN, Iowa JUDD GREGG, New Hampshire
BARBARA A. MIKULSKI, Maryland LAMAR ALEXANDER, Tennessee
JEFF BINGAMAN, New Mexico RICHARD BURR, North Carolina
PATTY MURRAY, Washington JOHNNY ISAKSON, Georgia
JACK REED, Rhode Island LISA MURKOWSKI, Alaska
HILLARY RODHAM CLINTON, New York ORRIN G. HATCH, Utah
BARACK OBAMA, Illinois PAT ROBERTS, Kansas
BERNARD SANDERS (I), Vermont WAYNE ALLARD, Colorado
SHERROD BROWN, Ohio TOM COBURN, M.D., Oklahoma
J. Michael Myers, Staff Director and Chief Counsel
Katherine Brunett McGuire, Minority Staff Director
(ii)
C O N T E N T S
__________
STATEMENTS
THURSDAY, NOVEMBER 15, 2007
Page
Harkin, Hon. Tom, a U.S. Senator from the State of Iowa, opening
statement...................................................... 1
Kemp, John D., Attorney, Powers, Pyles, Sutter & Verville, P.C.,
Washington, DC................................................. 4
Prepared statement........................................... 6
Thornburgh, Dick, Counsel, Kirkpatrick & Lockhart, Preston,
Gates, Ellis, LLP, Washington, DC.............................. 14
Prepared statement........................................... 17
Orr, Steven, Pharmacist, Rapid City, SD.......................... 19
Prepared statement........................................... 21
Olson, Camille, Attorney, Seyfarth & Shaw, Chicago, IL........... 23
Prepared statement........................................... 25
Murray, Hon. Patty, a U.S. Senator from the State of Washington,
statement...................................................... 36
Prepared statement........................................... 37
Feldblum, Chai, Director, Federal Legislation Clinic and
Professor of Law, Georgetown Law Center, Washington, DC........ 38
Prepared statement........................................... 40
ADDITIONAL MATERIAL
Statements, articles, publications, letters, etc.:
Enzi, Hon. Michael B., a U.S. Senator from the State of
Wyoming, prepared statement................................ 83
John R. Vaughn, Chairman, National Council on Disability,
Washington, DC., prepared statement........................ 85
American Civil Liberties Union, Washington, DC., prepared
statement.................................................. 90
Disability Policy Collaboration, prepared statement.......... 91
Letter from the National Council on Independent Living,
Washington, DC............................................. 92
Response to questions of Senator Hatch by Camille A. Olson... 94
(iii)
RESTORING CONGRESSIONAL INTENT AND
PROTECTIONS UNDER THE AMERICANS
WITH DISABILITIES ACT
----------
THURSDAY, NOVEMBER 15, 2007
U.S. Senate,
Committee on Health, Education, Labor, and Pensions,
Washington, DC.
The committee met, pursuant to notice, at 2:00 p.m., in
Room SD-430, Dirksen Senate Office Building, Hon. Tom Harkin,
presiding.
Present: Senators Harkin and Murray.
Opening Statement of Senator Harkin
Senator Harkin. Again, I want to welcome all of you here, I
apologize for being a little late, I'm trying to get a Farm
bill through also at the same time. That's tough this time of
the year, no pun intended.
Thank you all for being here and I welcome you all to the
Senate's first hearing on S. 1881, the Americans with
Disabilities Act restoration.
Very much like the original Americans with Disabilities Act
in 1990 this current bill is going forward in the spirit of
genuine bipartisanship.
My principal co-sponsor in the Senate is Senator Arlen
Specter of Pennsylvania. A companion measure on the House side
is co-sponsored by the Majority Leader Hoyer, and the former
chairman of the House Judiciary Committee, Congressman Jim
Sensenbrenner.
The House bill now has 235 co-sponsors on both sides of the
aisle.
The ADA was one of the landmark civil rights laws of the
20th Century. Americans take enormous pride in the progress
we've made in advancing the laws four goals for people with
disabilities: equality of opportunity, full participation,
independent living and economic opportunity.
Nobody wants to go backwards. But the harsh reality is that
today we are going backwards. In a series of decisions, the
U.S. Supreme Court has narrowed the ADA in ways that directly
contradict the clear intent of Congress.
When we wrote the ADA, we took the definition of disability
from Section 504 of the Rehabilitation Act of 1973, a statute
that was well-litigated and understood. Conditions that were
commonly understood to be a disability included amputation,
diabetes, epilepsy, intellectual disabilities, bi-polar
disorders, and multiple sclerosis.
In the Senate Labor and Human Resources Committee report we
said, and I quote,
``Whether a person has a disability should be
assessed without regard to the availability of
mitigating measures, such as reasonable accommodations,
or auxiliary aids.''
Yet in a series of decisions in 1999, the court ruled that
mitigating measures, prosthetics, medication, hearing aids and
so on must be considered in determining whether a person has a
disability under ADA.
Compounding this error, in 2002 the Court rules that there
must be, ``A demanding standard for qualifying as disabled.''
Together, these U.S. Supreme Court cases have created a supreme
absurdity. People with serious disabilities are held to
conditions such as a missing limb or epilepsy who are fortunate
to find treatments that make them more capable and independent,
and more able to work, may find they are no longer covered by
the ADA.
This means that when individuals, people who--by any common
sense standard--are disabled, believe they have been victims of
discrimination, they have no recourse. It has gotten so bad
that just last spring a lower court concluded that a person
with what is commonly called mental retardation, was not
disabled under the ADA.
In another case, an individual with epilepsy who had,
``only'' one 15-second seizure per week, on average, was not
considered to be disabled. And thus, not entitled to the
protections of the law.
In yet another recent case, a woman missing her right
forearm and hand was ruled to be not disabled under the ADA.
Courts have even denied protection under ADA in cases where the
employer openly admitted to firing someone because the Court
held they weren't disabled, so they weren't protected by the
ADA.
As others have noticed, this has created a odd Catch-22
situation. An employer may fire a person for being disabled,
and then argue that they cannot be sued, because the person is
not disabled enough to be protected by the ADA. That was the
experience of Mr. Orr, who's testifying here today.
There's no question that this is a very serious problem. A
2006 study found that plaintiffs have lost more than 97 percent
of ADA employment discrimination claims, more than any
comparable civil rights statute. Studies have shown that a
clear majority of the cases are being lost, because courts are
holding that plaintiffs are not disabled.
I can tell you with certainty, and so can I believe our
witnesses today, this is not what Congress intended when we
passed the law. We need a legislative fix to return us to the
original intent of the ADA. And that's what S. 1881 does, it
restores Congress' original intent by clarifying that anyone
with an impairment, regardless of a successful use of
mitigating measures, is entitled to seek reasonable
accommodations in the workplace, and when necessary, attempt to
prove that they have been victims of discrimination.
This bill is profoundly important to millions of people
with disabilities.
I would point out there's one group, in particular, that
has a major stake in this legislation. Many thousands of men
and women are returning from combat in Iraq and Afghanistan
with missing limbs, traumatic brain injuries, Post-Traumatic
Stress Disorder and other disabilities.
Currently, these courageous people are still in uniform,
still focused on recovery and rehabilitation. But eventually,
they will return to civilian life, where they will seek
opportunities to be independent, economically self-sufficient
and fully included. If they encounter discrimination based on a
disability, and if they seek redress under the ADA, they will
likely find themselves, among those, no longer viewed as
disabled under the ADA. We simply cannot allow this to happen,
not to war veterans, not to any Americans.
We cannot go back to the old days of denial,
disenfranchisement and discrimination, and that's why we need a
common sense remedy, as provided in S. 1881.
We have an excellent panel of witnesses this afternoon. I'm
especially pleased that three of these witnesses were deeply
involved in the drafting and negotiating and passing of the ADA
in 1990. They can speak authoritatively about not just the
congressional intent, but what was the understanding of the
Administration that strongly supported it under President Bush,
the passage of the ADA.
Let me briefly introduce the members of our panel. The
Honorable Dick Thornburgh, former Governor of Pennsylvania,
U.S. Attorney General from 1988 to 1991, was a key negotiator
on behalf of President Bush as we moved forward with the ADA.
He will testify from the Administration's perspective as to who
was intended to be covered under the law's definition of
disability.
John Kemp, currently an attorney with Powers, Pyles firm,
the former board member of the National Council on Disability,
former head of Very Special Arts. He was a key advocate in
support of the ADA, back in 1990. Mr. Kemp uses both leg and
arm prosthesis, as he has noted, he might not be considered a
person with a disability under the U.S. Supreme Court's current
interpretation. John was very helpful in 1999 on the ADA.
Professor Chai Feldblum is a Director of the Federal
Legislation Clinic at the Georgetown University Law Center,
again, deeply involved with many of us in the late 1980s,
leading to the passage of the ADA in 1990, is a recognized
national authority on the law's history and legislative
language and congressional intent behind the law.
As I mentioned earlier, Steven Orr was the plaintiff in a
claim filed under the ADA against Wal-Mart. He's a pharmacist,
he has diabetes, he asked Wal-Mart for permission to take 30
minutes each day to eat lunch as a reasonable accommodation to
control his diabetes. His request was denied, he was fired, he
sued under ADA, his claim was rejected, under the Court's law
that he's not disabled.
Camille Olson is a partner with the law firm of Seyfarth &
Shaw in Chicago. She has practice in the areas of employment
discrimination counseling and litigation defense for more than
two decades. Ms. Olson is a frequent lecturer and author, also
a member of the U.S. Chamber of Commerce's Policy Advisory
Committee on equal employment opportunity measures.
Again, I thank all of you for being here, I thank,
especially, our witnesses, some of whom came a great distance.
But more than that, I thank so many of you who were involved
back in those days of the 1980s, leading up to the passage of
the bill.
For those of us who were here at that time and worked
through that, it's always kind of a shock to me when I talk to
people who don't know what we went through. Many Senators that
I serve with now were not here then, as so many members of the
House were not here then. They don't know that history of what
went on then.
It's good to see three of the people, who were here who do
know the history, who were intimately involved in it.
I think what I'll do, since I've introduced all of you,
I'll just start down the line. I'll start with Mr. Kemp first,
and please take whatever time you need, John, and then we'll
just go on with Attorney General Thornburgh on down the line,
we'll just hear from each of you, then we'll open it up for
discussion.
John, welcome back, it's good to see you.
STATEMENT OF JOHN D. KEMP, ATTORNEY, POWERS, PYLES, SUTTER &
VERVILLE, P.C., WASHINGTON, DC.
Mr. Kemp. Thank you, Senator, it's a privilege to be here.
I am an American, a proud American with a disability, born
with arms or legs, off essentially at the elbows and the knees.
I use mitigating measures. Four prostheses that have enabled me
to be gainfully employed all my work life, and without which
employment would have been very difficult.
Unlawful discrimination is un-American. America is the
beacon of light to the world because our country is based on
the principles of hope, fairness, and equality of opportunity.
We expect that people will be judged on the basis of their
abilities, not on the basis of ignorance and prejudice.
Unfortunately, our Nation has not fared well in applying these
principles to people with disabilities.
Justice Thurgood Marshall summarized our disability policy
as ``grotesque'' and ``worse than the worst excesses of our Jim
Crow laws.''
In 1973 and 1974, Democrats and Republicans came together
in a bipartisan show of support and banned discrimination on
the basis of disability by Federal financial recipients, as
well as Federal contractors.
Section 504 of the Rehab Act banned discrimination against
three groups: persons with actual impairments that
substantially limited their major life activities, persons with
no actual current impairments, but who had histories of such
impairments, and person who have never had any actual
impairments but were regarded, that is, treated as if they had
such impairments by others.
In the words of the U.S. Supreme Court, in the Arline
decision as included in the Senate's ADA report, section 504
acknowledged that society's accumulated myths and fears about
disability and disease are as handicapping as the physical
limitations that flow from actual disabilities.
Thus, under section 504, our friends, neighbors and family
members, with the following impairments, among others, enjoy
protections again discrimination regardless of whether or not
they took mitigating measures to make themselves more
employable: epilepsy, insulin-depending diabetes, paraplegia
and quadriplegia, deafness and hard of hearing, blindness,
including persons who are legally blind, multiple sclerosis,
intellectual disabilities--such as mental retardation--manic
depression and HIV infection.
In 1989 and 1990, when Congress and the business and
disability communities considered passage of the ADA, these
interpretations of section 504 were recognized and accepted by
all.
For example, with respect to mitigating measures, the
Senator's report stated, ``Whether a person has a disability
should be assessed without regard to the availability of
mitigating measures.'' Comparable statements appeared in the
House report.
The committee reports also included numerous examples of
persons considered to have a substantial limitation of a major
life activity. For example, a person who is hard of hearing is
protected, even though the loss may be corrected through the
use of hearing aids.
Likewise, persons with impairments such as epilepsy or
diabetes were considered to have a substantial limitation of a
major life activity, even if the effects of the impairment were
controlled by medication.
On a personal note, as you have indicated, my right to
challenge discrimination on the basis of disability is clear
and unequivocal. I have no hands and feet. The Senate and House
reports clearly gave me the right to challenge discrimination
on the basis of disability, without regard to the availability
of mitigating measures, as in my case, my prostheses.
The focus of the ADA is not on whether, with my prostheses,
I can comb my hair, brush my teeth, or perform major life
activities. The focus of the ADA is on whether I can prove that
an employer denied me a job or a promotion unlawfully, on the
basis of disability.
The committee report also made it clear that section 504
included persons who did not have actual, substantially
limiting impairments, as well as persons with no actual
impairments whatsoever.
As the House report explains, section 504 applies whether
or not a person has an impairment, if the person was treated as
if he or she had an impairment that substantially limits a
major life activity.
Congress was concerned that individuals would be denied
employment as a result of negative attitudes and
misinformation, such as women in remission from breast cancer.
Persons with burns or disfiguring scars, and persons associated
with persons who are HIV-infected, but did not have the
infection themselves.
Thus, when the agreement was struck between the business
and disability communities, and the Members of Congress from
both sides of the aisle and the Bush administration, the intent
was clear and unmistaken. ADA protects, and was to be available
for all individuals who are subjected to adverse treatment
based on actual or perceived impairment, or by the failures to
remove societal or institutional barriers. Unfortunately, the
U.S. Supreme Court in the Sutton trilogy of cases, ignored
congressional intent. In a shameful display of judicial
activism, the majority stated, ``We have no reason to consider
the ADA's legislative history.''
Because of the U.S. Supreme Court's pronouncements, lower
courts have denied protections against discrimination on the
basis of disability to many of the person explicitly identified
by Congress and the Bush administration to be protected.
One of the most egregious decisions was recently handed
down by the 11th Circuit Court of Appeals. That Court denied
protection against employment discrimination to a 29-year-old
man who was diagnosed with mental retardation, who currently is
receiving cash benefits under SSI, because of the severity of
his disability, and who has the intellectual functioning of an
8-year-old, according to the Court.
Senators, using the reasoning of the U.S. Supreme Court
regarding mitigating measures, a judge could easily deny
protection against disability discrimination to wounded
warriors returning from Iraq, who have been fitted with state-
of-the-art prostheses.
Unlike the courts, Congress has every reason to consider
ADA's legislative history. I urge you to restore the rights and
protections agreed to in 1990 by members of the disability and
business community, by Members of Congress and the Bush
administration. People should not be subjected to
discrimination on the basis of disability, whether based on
actual or perceived impairment.
Over my 30 years of working with the business community, I
can unequivocally say, the structure of the ADA Restoration Act
is fully consistent with the approaches taken by progressive
companies, which are to provide accommodations for all of their
employees, in order to maximize their productivity, and thus
their profitability. That's what business really cares about.
We must, once again, come together and say no to
discrimination and yes to hope, fairness and equality of
opportunity for all. Thank you.
[The prepared statement of Mr. Kemp follows:]
Prepared Statement of John D. Kemp
i. introduction and recognition
Good morning. As I prepared for today's testimony and reviewed the
substantial history and documentation surrounding the momentous passage
of the Americans with Disabilities Act, there was a certain reference
that I stumbled upon again and again. It was a reference to the promise
of the founders, articulated with simple grace more than 230 years ago:
``We hold these truths to be self-evident--that all [people]
are created equal. That they are endowed by their creator with
certain inalienable rights.''
How appropriate these words were for that occasion, and for this
one. For those words have served as a beacon for all of us--and for the
world--toward which we continue to strive.
But the history of our Nation has shown that ``equality'' under the
law is not a gift that is easily given, but instead is a treasure of
the most sacred kind, which must be fought for and protected in order
to be gained and held. This country has seen many such battles,
including those against the dark legacies of racial and gender
discrimination. It is through these struggles that we as a nation, and
as individuals, move closer to the ideal and the truth upon which this
country was founded.
In 1990, 216 years after Thomas Jefferson scripted his most famous
words, and its promise was made, and 26 years after the passage of the
Civil Rights Act, this body came together and, in an extraordinary,
bipartisan manner, said no to discrimination on the basis of
disability. With the passage of the Americans with Disabilities Act,
this Nation took a monumental, long-awaited step in its long journey
toward full and equal rights for all of its citizens.
The heroes of the ADA are here with us today: Senator Tom Harkin,
sponsor of the ADA whose tireless commitment and deep dedication made
the achievement possible. Senator Bob Dole, who guided and shepherded
this legislation from the outset and whose unwavering leadership has
served as an inspiration to all. Attorney General Dick Thornburgh, who
played such a critical role in supporting and enforcing the
legislation. Congressmen Tony Coelho, Steny Hoyer and Steve Bartlett
who championed the cause of equality and inclusion for people with
disabilities.
The heroes of the ADA also included members of the disability and
business communities who were willing to work together with Members of
Congress to draft the ADA and the committee reports reflecting clear
and unambiguous congressional intent. To these individuals, and to the
many, many others who worked to make the ADA a reality, we say ``thank
you.''
Thank you, because in 1990, largely as a result of your work and
commitment, we recognized, acknowledged, and sought to alter forever
the dark history of discrimination on the basis of disability; a
history fraught with ignorance, indignity, suffering, exclusion, and
waste of human life and potential. A history of segregation and
discrimination that, in the words of civil rights champion and Supreme
Court Justice Thurgood Marshall, ``in its virulence and bigotry
rivaled, and indeed paralleled, the worst excesses of Jim Crow.''
ii. history of discrimination in the united states
I am by nature an optimist, and today is about looking forward with
hope, determination, and with the aim of ensuring the greater success
of the Americans with Disabilities Act. It is important to pause and
remember this difficult history, a history that included, until very
recently, laws that prohibited certain American citizens from appearing
in public. A Chicago ordinance in effect until 1974 imposed a fine upon
any individual who ``exposes himself to public view'' who was
``diseased, maimed, or in any way deformed so as to be an unsightly or
disgusting object.''
Discrimination on the basis of disability also permeated our public
schools. Until 1975, the State of Maine had a statute which gave the
school board the authority to ``exclude from the public schools any
child whose physical or mental condition makes it inexpedient for him
to attend.'' This same policy was reflected in legislation in virtually
every State in the Nation.
In 1919, the Wisconsin Supreme Court upheld the exclusion from
school of a child with cerebral palsy, writing that the child's
appearance produced a ``depressing and nauseating effect'' upon his
teachers and the other children that his condition required ``undue''
time and attention of the teacher, and that he ``interferes generally
with the discipline and progress of the school.'' The court concluded
that the child's presence was ``harmful to the best interests of the
school.''
Forced sterilization on the basis of disability was also permitted
in this country. In 1927, the U.S. Supreme Court addressed the
constitutionality of a State law which allowed the sterilization of
institutionalized people with mental disabilities. The court upheld the
law, and acclaimed Justice Oliver Wendell Holmes wrote:
``In order to prevent our being swamped with incompetence, it
is better for all the world, if instead of waiting to execute
the degenerate offspring for crimes, or to let them starve for
their imbecility, society can prevent those who are manifestly
unfit from continuing their kind.''
And particularly in the 20th century, children as well as adults
were often subject to lives of forced institutionalization on the basis
of disability. They were hidden from public view, isolated from family
and friends and excluded from the mainstream of life. Leading medical
authorities began to portray people with mental disabilities as ``a
menace to society and civilization . . . responsible in large degree
for many, if not all, of our social problems.''
It was said that people with intellectual disabilities caused
``unutterable sorrow at home and are a menace and danger to the
community.'' They were considered a danger to the ``social, economic,
and moral welfare of the State.''
And there were, of course, the more insidious forms of ``every
day'' discrimination: social ostracization, the inaccessibility of
retail establishments, eating establishments, public transportation,
places of public gathering, and job sites.
Justice Marshall summed up this unfortunate history well when he
observed that ``Massive custodial institutions were built to warehouse
the retarded for life; the aim was to halt reproduction and nearly
extinguish their race. Many disabled children were categorically
excluded from public schools, based on the false stereotypes that all
were uneducable and on the purported need to protect non-disabled
children from them. State laws deemed the retarded ``unfit for
citizenship.'' Justice Marshall concluded that persons with
disabilities have been subject to a history of discrimination that is
both tragic and grotesque. In the words of former Senator Lowell
Weicker, people with disabilities spend a lifetime ``overcoming not
what God wrought but what man imposed by custom and law.''
This brief review of our Nation's history of discrimination on the
basis of disability provided the backdrop for the comprehensive reports
and clarion call for action by 15 members of the National Council on
Disability appointed by President George H.W. Bush. Based on reports by
NCD and others, Congress concluded that there was a compelling need to
establish a clear and comprehensive Federal prohibition of
discrimination on the basis of disability.
The statement of findings in the ADA and the Senate and House
committee reports explain the purposes of the ADA. The committee
reports, in the words of Senator Dole sought to put an end to
``prejudice, isolation, discrimination, and segregation,'' and to
address and dispel the myths and false perceptions of people with
disabilities, which have formed the basis for past misguided policies.
The committee reports make several clear, unequivocal statements of
intent. First, discrimination on the basis of disability includes
denying equal opportunity to persons who have actual impairments that
substantially limit major life activities (i.e., more than minor or
trivial impairments). Examples included discrimination on the basis of
deafness, blindness, paraplegia, HIV, developmental disability, mental
illness. The House and Senate Reports also make it clear that persons
with medical conditions that are under control such as persons taking
medication for diabetes and epilepsy and high blood pressure may make
claims of discrimination on the basis of disability. In other words,
whether a person has an actual impairment should be assessed without
regard to the availability of mitigating measures.
Second, discrimination on the basis of disability includes denying
equal opportunity to an individual who does not have an impairment but
simply has a record of an impairment. Congress concluded that it is
critical to protect individuals who have recovered from an impairment
as well as persons who had been misclassified as having an impairment.
Examples include persons with histories of mental or emotional illness,
heart disease, or cancer; examples of those misclassified as having an
impairment include persons misclassified as mentally retarded.
Third, discrimination on the basis of disability includes denying
equal opportunity by taking adverse action against an individual
whether or not the person has an actual impairment i.e., a person who
is regarded as having a disability. Congress explained that it wanted
to protect individuals from discrimination because of the negative
reactions of others. The House and Senate committee reports quote the
U.S. Supreme Court case of School Board of Nassau County v. Arline
(interpreting Section 504 of the Rehabilitation Act), ``Congress
acknowledged that society's accumulated myths and fears about
disability and diseases are as handicapping as are the physical
limitations that flow from actual impairment.''
For example, if a an employer refused to hire someone because of a
fear of the negative reactions of others to the individual or because
of the employer's perception that the applicant had a disability which
prevented that person from working, that person would be able to make a
claim of discrimination under the ADA.
In sum, Congress correctly intended the ADA to protect all
individuals who are subjected to adverse treatment based on actual or
perceived impairment, or record of impairments 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.
iii. the topic of testimony: employment--recent cases
One of the primary areas that the ADA sought to address was that of
employment. As was recognized by those who worked so hard for the
passage of the ADA, denial of equal employment opportunity on the basis
of disability debases and undermines the quest for equality and
dignity. Discrimination on the basis of disability perpetuates
exclusion and separation; it contributes to the false perception that
some people are less than capable, or not equally capable, and cannot
contribute or compete in the mainstream; and it creates and compels
dependence on government subsidies and programs without fair access to
competitive employment; In short, discrimination on the basis of
disability perpetuates the cycle of segregation, isolation, and
poverty.
Discrimination on the basis of disability in employment not only
limits dreams and encourages alienation and economic dependence, it
weakens our Nation as a whole. As President George H.W. Bush stated in
1991, ``No nation, no matter how wealthy, has ever been able to afford
the waste of human talent and potential. That is particularly true
today,'' he wrote, ``as the world economy continues to grow in size and
sophistication.'' \1\ The President's words have the same force today
as they did 16 years ago, perhaps more. In the growing global economy,
and increasingly competitive global workplace, this country cannot
afford to overlook one of its greatest human resources--a population of
willing, capable, talented, and competent Americans--who stand ready to
contribute.
---------------------------------------------------------------------------
\1\ 56 Fed. Reg. 51,145 (Oct. 10, 1991).
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In a nutshell, in the words of Senator Dole, the ADA offered
``accessible environments and reasonable accommodations to empower
persons with disabilities to utilize their full potential.'' So, in
1990 we were off to a wonderful start--a start that was in sync with
the clear intent of this body.
Unfortunately, however, the promise of that start has not come to
fruition. Not because of any lack of diligence by Congress and all
those who labored to bring about this historic legislation--but because
of mistaken, limiting constructions of its intent and meaning.
Beginning in the late 1990's, a series of judicial opinions began to
emerge, which have undermined the purpose and effect of the ADA. Among
other things, the Supreme Court has ruled, in direct contravention of
congressional intent, that the ADA must be strictly interpreted to
create a ``demanding standard for qualifying as disabled.'' The court
has also ruled that mitigating measures--including medications,
prosthetics, hearing aids, and other auxiliary devices, must be
considered in determining whether an individual has a disability under
the ADA.\2\ The Court, in reaching this decision, had the nerve to
state that it `` had no reason to consider the ADA's legislative
history.'' In so doing, the court has significantly narrowed the scope
of conditions that were specifically intended to be covered by the act,
including epilepsy, diabetes, HIV infection, depression, cancer, and
intellectual and developmental disabilities, bipolar disorder, multiple
sclerosis, hard of hearing, visual impairments, post-traumatic stress
disorder, heart disease, depression, and asthma.\3\
---------------------------------------------------------------------------
\2\ Consortium for Citizens with Disabilities, Failing to Fulfill
the ADA's Promise and Intent: The Work of The Courts in Narrowing
Protection Against Discrimination on the Basis of Disability (Sept.
2006) (unpublished manuscript, on file with author), citing 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).
\3\ Consortium for Citizens with Disabilities, Failing to Fulfill
the ADA's Promise and Intent: The Work of The Courts in Narrowing
Protection Against Discrimination on the Basis of Disability (Sept.
2006) (unpublished manuscript, on file with author).
---------------------------------------------------------------------------
The Supreme Court's rulings have created an untenable situation for
individuals who are taking self-help steps to control their illnesses
or mitigate the effects of their impairments. If they avail themselves
of treatment that improves their condition and prolongs their health
and life, they are no longer ``covered'' by the protections of the ADA,
and cannot challenge discriminatory treatment under the act. These
opinions, and their progeny, create a bizarre legal scenario in which
an employer can refuse to hire or terminate an individual expressly
because of their disability, and then--when challenged--argue that the
individual is not ``disabled enough'' to fall within the protections of
the ADA. Thus, while the employer's practices may be overtly
discriminatory on the front end, those practices cannot be challenged
``on the back end'' under the ADA. If this sounds confusing to you--or
nonsensical--that's because it is. My friends, we are truly ``through
the looking glass'' here.
I'd like to take a moment and give you a few examples of how this
confounding reasoning has worked against people with disabilities. I'll
start by telling you a bit about the case of a young man named Charles
Irvin Littleton, Jr. Mr. Littleton is a 29-year-old man with
intellectual disabilities. He lives at home with his mother and
receives social security benefits because of his disability. In 2003,
Charles' job counselor helped him to arrange an interview for a
position as a cart-pusher at a large, well-known retail establishment.
Charles' job counselor, Carolyn Agee, asked in advance if she could sit
in on the interview with Charles, and the personnel manager agreed.
When Ms. Agee and Mr. Littleton arrived at the store, however, Ms. Agee
was not permitted to attend the interview. After the interview, the
company refused to hire Charles.
Charles brought a discrimination claim against the company under
the ADA. The court never reached the question, however, as to whether
Charles was qualified for the job or whether the company had
discriminated against him on the basis of his disability. Rather, the
court extinguished the matter before ever reaching these substantive
questions by finding, in accordance with the company's arguments, that
Charles was not ``disabled'' under the ADA. The court made this finding
despite Charles' explanations that (1) his cognitive ability was equal
to that of an 8-year-old child, (2) he needed a job counselor to
accompany him during the interview process and at the workplace itself,
until he became comfortable with his job responsibilities, (3) that he
had ``difficulty thinking and communicating,'' which the court itself
had observed in the delivery of his testimony, (4) that he was
substantially limited in the ability to communicate with others as a
result of his disability, and (5) that he was substantially limited in
the major life activity of working, as demonstrated by his receipt of
social security disability benefits, which are granted only to those
who are unable to work by virtue of significant impairments in ability.
Despite these arguments, the court found that, because Charles
could drive a car, had graduated from high school with a special
education certificate, and had attended a technical college and was
able to read and comprehend, he was not substantially limited in the
major life activities of thinking and learning. The court also found
that although Charles was not hired for this particular position, there
were other jobs that he could do, and therefore that his disability did
not substantially limit him in the major life activity of working. In
other words, while Charles' disability may have been the catalyst for
the denial of employment by this company, he was not disabled enough to
be protected from discriminatory hiring practices under the ADA.\4\
---------------------------------------------------------------------------
\4\ Consortium for Citizens with Disabilities, The Effect of the
Supreme Court's Decisions on Americans with Disabilities (unpublished
manuscript, on file with author), citing Littleton v. Wal-Mart Stores,
Inc., No. 05-12770, 2007 WL 1379986 (11th Cir. May 11, 2007).
---------------------------------------------------------------------------
Let me share with you the story of Mary Ann Pimental. Mary Ann was
a registered nurse who lived in New Hampshire with her husband and two
children. She worked in a hospital. After 5 years of employment at the
hospital, Mary Ann was promoted to the nurse management team. About 1
year later, she was diagnosed with Stage III breast cancer.
Mary Ann took some time away from work to undergo a mastectomy,
chemotherapy, and radiation treatments. While she was receiving her
treatment, the hospital eliminated Mary Ann's position. When she was
well enough to return to work, Mary Ann re-applied for several
different positions at the hospital, but was not hired. Eventually, the
hospital hired her back as a staff nurse for only 20 hours per week,
without the higher level of benefits accorded to those working more
than 30 hours per week.
Given her strong performance history, and the fact that she had
been asked by her employer about her ability to perform her nursing
duties while being treated for cancer, Mary Ann believed that the
hospital's decision to hire her back in a part time, diminished
capacity was related to her breast cancer. When Mary Ann challenged the
hospital's decision under the ADA, the hospital argued that Mary Ann
did not have a disability, and hence was not protected by the ADA. In
response, Mary Ann offered highly personal evidence and information to
her employer that demonstrated how her breast cancer had substantially
impacted her life. She noted her hospitalization for mastectomy,
chemotherapy, and radiation therapy; she shared that she had problems
concentrating, memory loss, extreme fatigue, and shortness of breath;
that she experienced premature menopause brought on by chemotherapy,
burns from radiation therapy, pain in her shoulder resulting in an
inability to lift her arm above her head, sleep deprivation caused by
nightmares, difficulty in intimate relations with her husband as a
result of her premature menopause and self-consciousness about her
mastectomy, and that she needed assistance from her husband and mother
in caring for herself and her two children, because of extreme fatigue
and difficulties performing basic household tasks.
When Mary Ann returned to work, she was still receiving radiation
treatment and experiencing great fatigue. She could not lift her arm
above her head, experienced concentration and memory problems, and
still received help with household and childcare tasks. Despite this
painful litany, the hospital maintained that Mary Ann did not have a
disability under the ADA because she hadn't shown a substantial
limitation of a major life activity, and the court agreed. It wrote:
``[while] [t]here is no question that plaintiff 's cancer has
dramatically affected her life, and that the associated
impairment has been real and extraordinarily difficult for her
and her family, Mary Ann failed to show that she had been
limited by breast cancer on a permanent or long-term basis.''
\5\
---------------------------------------------------------------------------
\5\ Consortium for Citizens with Disabilities, The Effect of the
Supreme Court's Decisions on Americans with Disabilities (unpublished
manuscript, on file with author), citing Pimental v. Dartmouth-
Hitchcock Clinic, 236 F.Supp.2d 177, 184, 188 (D.NH. 2002).
Mary Ann Pimental died of breast cancer 4 months after the court
issued its decision.
The stories of Charles Littleton and Mary Ann Pimental are but two
examples--two tragic, confounding examples--of the misconstruction of
the intentions of this body and the contravention of the broad sweep of
the ADA. In these cases, and others like them, the courts and the
employers never reach the substantive question under the ADA--the
question of whether the employer's action was improperly related to the
individual's disability. That inquiry is circumvented--it ends before
it begins--with the narrow construction of ``disability,'' and a
finding that individuals who are clearly disabled, who are entitled to
the protections of the ADA, and whom the ADA was intended to protect--
are not sufficiently disabled to warrant its protections. And there are
many more stories: Stephen Orr was fired from his job as a pharmacist
after his employer refused to allow him to take a lunch break so that
he could regulate his blood sugar and control his diabetes by eating.
But because Stephen managed his diabetes through regimented food intake
and medication, the court ruled that he was not substantially limited
in any major life activity, and therefore was not protected from
discrimination under the ADA.\6\ Vanessa Turpin was an auto packaging
machine operator with epilepsy, who resigned after her employer
required that she work a shift that would have worsened her seizures.
The court held that although Vanessa experienced nighttime seizures
characterized by ``shaking, kicking, salivating, and, on at least one
occasion, bedwetting'' and that caused her to wake with bruises on her
arms and legs, Vanessa was not disabled because ``[m]any individuals
fail to receive a full night of sleep.'' The court also found that
Vanessa's daytime seizures, which caused her to become unaware and
unresponsive to her surroundings and to suffer memory loss, did not
render her disabled because ``many other adults in the general
population suffer from a few incidents of forgetfulness a week.'' \7\
---------------------------------------------------------------------------
\6\ Consortium for Citizens with Disabilities, Failing to Fulfill
the ADA's Promise and Intent: The Work of The Courts in Narrowing
Protection Against Discrimination on the Basis of Disability (Sept.
2006) (unpublished manuscript, on file with author), citing Orr v. Wal-
Mart Stores, Inc., 297 F.3d 720 (8th Cir. 2002).
\7\ Consortium for Citizens with Disabilities, Failing to Fulfill
the ADA's Promise and Intent: The Work of The Courts in Narrowing
Protection Against Discrimination on the Basis of Disability (Sept.
2006) (unpublished manuscript, on file with author), citing Equal
Employment Opportunity Comm'n v. Sara Lee Corp., 237 F.3d 349 (4th Cir.
2001).
---------------------------------------------------------------------------
These cases are painful to recount. And unfortunately, there are
many more. The Supreme Court has set the standard--a standard that is
in direct opposition to the intent of this body--and the lower courts
have followed, creating a barrage of incorrectly reasoned opinions that
un-do and negate the good that this body expressly endeavored to
achieve.
Recent studies show that plaintiffs lose more than 90 percent of
cases brought under the ADA, primarily on the grounds that they are not
disabled enough.\8\ Thus, the courts never reach the question of
discrimination under the ADA, and these matters are dismissed on the
basis that the complainant does not qualify as ``disabled'' under the
Supreme Court's narrow and strict definition. These cases affirm the
dire necessity of this gathering, and the necessity of further action
to clarify--so that there can be no further mistakes by employers or
the courts--that these individuals are covered and protected by the
ADA.
---------------------------------------------------------------------------
\8\ Congressman Steny Hoyer, Not Exactly What We Intended, Justice
O'Connor, www.washingtonpost.com, Jan. 20, 2002.
---------------------------------------------------------------------------
If our voices were not heard clearly in 1990, let them be heard
again--forcefully and unequivocally--so that there will be no mistake
as to our intentions; and no mistake that individuals like Charles
Littleton and Mary Ann Pimental and Stephen Orr and Vanessa Turpin are
entitled to the full and complete protection of this legislation.
Let me be clear--we do not seek to govern the outcome of these
cases--we do not argue today that each of the complainants in the
[number] cases would have prevailed in their discrimination claims. We
simply state that where an individual alleges discrimination on the
basis of disability his or her claim should at least be heard and
decided--should rise or fall--on its merits as intended by Congress.
The ADA promises no less.
iv. employment statistics
While some employers clearly seek loopholes in the ADA and try to
avoid compliance with its terms, it is important to note that there are
others that have embraced the ADA, and have taken a proactive approach
to developing inclusive, accessible workplaces. These employers
include, among others, IBM, Merrill Lynch, CVS, Hewlett-Packard, JP
Morgan Chase, SunTrust and Lockheed. Let these companies be the proud
vanguard for other businesses to follow. And follow they must; for
despite this great legislation, and the courageous work of so many,
there is still much that is unchanged. Despite the passage of the ADA
over 17 years ago, and despite its effort to prevent discrimination on
the basis of their disability in gaining employment, statistics
indicate that little has changed in terms of the numbers of people with
disabilities entering the job market. According to some statistics, the
employment rate for people with disabilities has remained in the
vicinity of 35 percent since World War II.\9\ Nearly \2/3\ of people
with disabilities are unemployed. Since 1995, the employment rate for
women who are not disabled has been 80.06 percent, for women with
disabilities the employment rate is 33.06 percent. Since 1995, the
employment rate for men who are not disabled has been 94.96 percent,
and for men with disabilities the employment rate is 36.21 percent. For
college graduates (male and female) without disabilities, the
employment rate is 89.9 percent. For college graduates with
disabilities, the employment rate is 50.6 percent. The median household
income for women with disabilities has been $13,974; for disabled men,
the median household income has been $15,275.\10\
---------------------------------------------------------------------------
\9\ Center for an Accessible Society, Labor Day and People with
Disabilities, available at http:
//www.accessiblesociety.org/topics/economics-employment/labor2001.htm.
\10\ Id.
---------------------------------------------------------------------------
These numbers--which infer an unemployment rate for people with
disabilities of roughly 65 percent, are alarming. The large employment
gap between people with disabilities and those without disabilities--a
gap of roughly 50 percent--is alarming. These numbers tell us that,
although this legislation is ``on the books,'' so to speak, and has
been ``on the books'' for 17 years--there is a disconnect that is
inhibiting the fulfillment of the promise of the ADA, and that is
preventing the removal of barriers to full participation in the
mainstream job market.
What is the source of this disconnect, we must ask. Apart from the
recent case law history, which sends a message to employers that they
can ``get around'' the ADA with the right manipulation or maneuvering,
research has shown that changing hearts and minds is a difficult task
when it comes to creating and catalyzing change. Employers in at least
one study stated that the most difficult adjustment to make in order to
meet the needs of an employee with a disability was ``changing co-
worker/supervisor attitudes.'' According to this study, changing
attitudes was rated as ``difficult'' more than twice as often as other
adjustments, such as ``changes to management system,'' and 16 times as
often as ``ensuring equal pay and benefits'' for employees with
disabilities.\11\
---------------------------------------------------------------------------
\11\ Id.
---------------------------------------------------------------------------
No change or growth or evolution is ever without difficulty,
however. Legislation is the first, critical step forward on this
journey. But words alone, without employer action and enforcement, can
only take us so far in achieving true integration, in changing
attitudes and hearts and minds. Employers must not only ``talk the
talk'' with appropriately worded anti-discrimination policies, but must
also ``walk the walk,'' so to speak, by working in partnership with the
principles of the ADA, educating their employees--from the top down--
and making their workplaces accessible to disabled employees. They must
create and maintain a corporate culture of inclusion, fairness, and
respect for diversity in thoughts and ideas. And they must realize that
this is not an act of charity.
According to surveys conducted by the DuPont Corporation and other
companies, employees with disabilities have lower turnover rates, lower
absenteeism, and high productivity. Successive studies by DuPont
showed, consistently, that 90 percent of employees with disabilities
were considered average or better than average in job performance.\12\
And there is talent out there to perform jobs at all levels of
enterprise--from senior executives with disabilities to mid-level
employees to entry-level candidates. The National Business Services
Alliance has a new Disability Employment Institute, which, among other
things, offers CEO and manager training courses to people with
disabilities. Programs like these are critically important in helping
to integrate the employment sector at every level and maintaining a
strong American workforce. By 2010, it is estimated that America will
have 168 million jobs and only 158 million workers to perform these
jobs. ``Tapping'' the pool of willing, capable, and talented workers
with disabilities could be our national solution to that impending
shortage.
---------------------------------------------------------------------------
\12\ Id.
---------------------------------------------------------------------------
Moreover, creating inclusive, accessible workplaces goes a long way
in creating good will with the community of people with disabilities--a
community that is now approximately 54 million strong in the United
States alone. This is a powerful consumer base, and a base that is
continually growing. There are 76 million people over the age of 50 in
this country, and by 2020 this number will have grown to 116 million,
or 36 percent of the population. As the baby boomers grow older, and as
they seek both to remain in the workforce longer and to patronize
businesses that meet their growing physical, information and
communication accessibility needs, this progressive and powerful
generation will continue to influence the way companies do business,
both internally and externally.
To put it simply--accessible and inclusive workplaces are not only
the law, not only an ethical imperative, but they are also sound
business practice. In creating and pursuing integrated hiring practices
and accessible environments for employees with disabilities, employer-
businesses can tap an under-utilized segment of the work force as well
as a significant, but often overlooked, consumer base. And perhaps most
important, we must remember that integrating the workforce, expanding
our worlds, and encouraging policies and practices that foster the
potential of all employees--those with disabilities and those without--
is good for everyone.
v. veterans issues/the future/ convention/closing
I will begin my closing remarks by recalling that, in 1990, Senator
Harkin dedicated the ADA to the ``next generation.'' Esteemed
colleagues, Senators, Congressmen and Congresswomen, that generation is
here. They are our children and our grandchildren; our brothers and
sisters. They are born with disabilities, they acquire disabilities
through illness or accident, they age into disabilities. And it goes
without saying that they are also the wounded sons and daughters of the
conflicts in Iraq and Afghanistan. Recent estimates state that more
than 20,000 men and women have been wounded in these military
operations.\13\ Iraq veterans have seen twice the number of amputations
as veterans of previous wars, and some of these soldiers have lost more
than one limb.\14\ Young men and women are returning home with
significant injuries in unprecedented numbers, as the quality of care
in the field enables them to survive what might in earlier wars have
been fatal injuries. Many servicemen and women--a recent report
suggested approximately 6 percent--are returning with mental health
problems, and more than half from Iraq/Afghanistan conflict are
returning with what many are calling the ``signature wound'' of the
Iraq war--traumatic brain injury.\15\
---------------------------------------------------------------------------
\13\ Intrepid Fallen Heroes Fund, Facts and Statistics (2007),
available at www.fallenheroesfund.org/common/
page.php?ref=fund_statistics.
\14\ Amputation Rate for U.S. Troops Twice That of Past Wars, The
Boston Globe (Dec. 9, 2004), available at www.boston.com/news/mnation/
articles/2004/12/09/amputation_rate_for_us_
troops.
\15\ Gregg Zoroya, Key Iraq Wound: Brain Trauma, USA Today (March
3, 2005), available at www.usatoday.com/news/nation/2005-03-03-brain-
trauma-lede_x.htm.
---------------------------------------------------------------------------
These men and women--and all those who live with a disability of
any kind or source--need our attention and our continued vigilance and
commitment in seeing to it that this legislation serves its intended
purpose, and that all of our children have the opportunity to live
strong, productive lives and pursue their dreams to the greatest extent
of their will and desire. Seventeen years later, it is not yet time to
rest. It is time, instead, to strengthen, renew and restore our energy
and our commitment to restore the rights and promises of the Americans
with Disabilities Act of 1990.
We here have made a promise to all the members of this new
generation. It is a promise that must be kept, not just in word, but in
deed. We have promised them the opportunity for good, rich, productive
lives; we have promised them education, inclusion in the workforce, the
financial ability to raise families. For wounded veterans and others--
many of them parents--this means being able to resume their place as an
economic contributor within their families. We must see to it that
discrimination on the basis of disability does not mean an end of life
or productivity, that our sons and daughters in military service do not
return to a country in which they have no place. We had better learned
these painful lessons from the Vietnam War. We must see to it that
individuals are not shut out of the mainstream workforce because of
discrimination on the basis of disability. For unless this trend
changes, they--we--will be kept in a cycle of poverty, personal
dependence, and economic dependence on government subsidies, which
serves to undermine dreams and to waste human potential. Let us affirm
today that we will not allow that, that the door to the past is forever
closed.
And finally, let us commit, today, to re-taking our place of
leadership upon the world stage. In August 2006, a United Nations
general assembly panel passed the U.N. Convention on the Rights of
Persons with Disabilities, by the full U.N. General Assembly in
December 2006, a treaty intended to expand the freedoms of 650 million
people with disabilities, worldwide. The treaty, which is expected to
take effect in 2008 or 2009, with the 20th member nation formally
ratifying it, requires countries to guarantee freedom from exploitation
and abuse, and protects against discrimination in all areas. It
addresses access to the full range of human rights--civil, political,
economic, social, and cultural, and focuses particular attention on the
treatment of women and children with disabilities. Some of the primary
principles set forth in the treaty include: (1) the equal right to life
for people with disabilities; (2) equal rights for women and girls with
disabilities; (3) an end to enforced institutionalization; (4) the
right to equal participation in the job market; and (5) removal of
barriers to accessibility in the areas of transportation, public
facilities, and communications, including the Internet.
On March 30, 2007, the treaty opened for signature and
ratification. More than 100 Member States and the European Community
signed the Treaty, with Jamaica being the first country to go beyond
endorsement to ratification. [To date, the United States has not signed
this Treaty.] Let us see to it that this does not remain the case, and
that America is not left behind. Let today's gathering, and the passage
of the ADA Restoration Act, signal to the world that America is re-
claiming her rightful place as a leader among nations, and re-
committing herself to this cause--the cause of human rights, of equal
opportunity and dignity for all of its citizens, and for those around
the world.
I thank you all for your time and attention.
Senator Harkin. John, thank you again for a very
provocative statement. Very provocative. And as I've said
before, your high intellect is only matched by your passion on
this issue. And I thank you very much for so many years, being
in the forefront of this fight. Thank you again, really, I
think for encapsulating what the real issue is.
Dick Thornburgh, what can I say? I just welcome you back
again, and all of you here who may not have been around in the
1980s, this is one of our real unsung heroes of the ADA. I can
remember the meetings we had here, trying to work things out--
legislation is always just tough. And working them out, I
remember then-Attorney General Thornburgh as being the voice of
reason, bringing people together, to work out these
differences, smooth them over and make sure we had legislation
we could pass. And I always remember that, and ever since then,
you've always been a strong, strong advocate for people with
disabilities.
I thank you for being here today, Attorney General
Thornburgh.
STATEMENT OF DICK THORNBURGH, COUNSEL, KIRKPATRICK & LOCKHART,
PRESTON, GATES, ELLIS, LLP, WASHINGTON, DC.
Mr. Thornburgh. Thank you, Senator, I too, am pleased to be
here before you today, to testify about the need for
consideration and passage of the ADA Restoration Act, S. 1881.
When I served as Attorney General under George H.W. Bush,
one of my proudest achievements was indeed working on the
passage of the ADA. As parents of a child with physical and
intellectual disability, both my wife and I fully understand
the importance of the ADA to 54 million Americans with
disabilities and their families.
The ADA, which sets as its goals, equality of opportunity,
full participation, independent living and economic self-
sufficiency for people with disabilities, is one of the most
significant pieces of civil rights legislation in the past 25
years, and has changed the lives of millions of Americans with
disabilities.
On occasions like this, I always have in my mind, that
glorious sun-filled day, July 26, 1990, on the South lawn of
the White House, when President Bush signed into law the
Americans with Disabilities Act. None of the 3,000 or so
persons with and without disabilities, present for the event,
will ever forget the excitement of that day as this bill of
rights for millions of Americans became the law of the land.
Make no mistake about it, as you've pointed out, the
passage of the ADA 17 years ago, was the result of strong
bipartisan work. I was personally involved in these
negotiations in my role as Attorney General. The Bush
administration and the Congress, both the Senate and the House,
Republicans and Democrats, as well as the business community
and the disability community worked together to get this
important legislation passed.
It took the personal involvement of many individuals too
numerous to mention: C. Boyden Gray, Sam Skinner, President
Bush, Senators Dole, Hatch, yourself, Senator Kennedy, and an
equal number of committed members of the House. We all worked
together with one goal in mind--to break down the barriers to
people with disabilities, and to open the social and economic
door to the mainstream of American life. The passage of the
Americans with Disabilities Act was truly a cooperative effort.
Today, I remain proud of the tremendous strides we have
made in the empowerment of people with disabilities since the
enactment of this important legislation.
Many more people with disabilities have greater
opportunities than ever before. We see greater numbers of
children and adults with disabilities around us, partaking of
the diverse benefits our society has to offer. We can feel the
impact of improved accessibility. Moreover, the Americans with
Disabilities Act has become a beacon and a model for disability
policy reform throughout the world.
Yet, despite the substantial progress, ADA has not been as
effective as intended in protecting some individuals with
disabilities from employment discrimination. The problem is a
direct result of judicial interpretation or misinterpretation
of the definition of who qualifies as an individual with
disability under the statute.
Under the three 1999 U.S. Supreme Court decisions in
Sutton, Murphy and Kirkingburg cases, as well as a series of a
lower court decision, the definition of who qualifies as an
individual with disability has become unduly restrictive and
often difficult to prove. So that millions of Americans we all
intended to protect from discrimination, including people with
intellectual and developmental disabilities, bi-polar disorder,
multiple sclerosis, epilepsy and diabetes are no longer covered
by the law's protection. I don't think there are any among us
who think that these conditions do not qualify as disabilities.
Yet, this is what the courts have, in effect, concluded, over
and over again since 1999, and what now needs to be rectified
by the Congress.
The problem we face now is actually worst than that. In
many instances, these individuals are caught in a bizarre and
unintended Catch-22. Let me give you an example, citing from
the brief of the Department of Justice in Murphy v. United
Parcel Service, filed in the U.S. Supreme Court in 1999.
They used this example.
``An employee that develops a serious and chronic
medical condition that can be effectively controlled
only by taking oral medication several times a day. In
many employment situations, giving an employee a brief
break so the employee could take the medication would
be a reasonable accommodation.''
Yet, under the Court of Appeals theory in that case, which
is the U.S. Supreme Court's theory, the employer could refuse
that accommodation, because the employee, by virtue of his
medication, ceases to be disabled, and is therefore not
entitled to the protections of the ADA.
Clearly, this is not what was intended by those of us who
worked together cooperatively in the years leading up to the
ADA passage in 1990. In fact, it's quite the opposite. As
Senator Harkin has noted, the definition of disability under
the ADA is taken from the definition of handicapped individual,
contained in the Rehabilitation Act of 1973.
When we were looking for an appropriate definition, I
remember thinking that we should go with something familiar,
and that had worked well, and that was the reason we turned to
the definition of disability under the Rehabilitation Act.
Prior to the enactment of the ADA, courts had interpreted
the term ``handicapped individual'' under the Rehabilitation
Act broadly, to include people with a wide variety of physical
and mental impairments, which were recognized as disabilities,
even where a mitigating measure--like the medication mentioned,
or a hearing aid--might lessen the impact on the individual. In
most cases, defendants and the courts, accepted that a
plaintiff was a member of the protected class as a handicapped
individual, and moved onto the merits of the case, examining,
for example, whether the plaintiff was qualified to perform the
job, or whether a reasonable accommodation might cause an undue
burden on the employer.
In addition to favorable treatment by the lower courts, the
U.S. Supreme Court had also endorsed a broad interpretation to
the definition of handicapped individual, before Congress
decided to adopt this model for the definition of disability in
the ADA.
The repetition of this definition in the ADA, thus, was
clearly meant to incorporate the Rehabilitation Act's
administrative and judicial interpretations that had worked
well to provide anti-discrimination protection to people with
disabilities.
Just to be sure, the legislative language, as noted, went
even further, and included a specific statutory provision
requiring courts to interpret the ADA to provide as much
protection as the Rehabilitation Act, and its implementing
regulations.
Yet, despite consensus at the time between the
Administration, Congress, Republicans, Democrats, the
disability community and the business community, about the
desired result, our best efforts did not achieve the intended
result, nor the result that all of us had expected.
Supreme Court decisions in Sutton, Murphy, Kirkingburg, as
well as in Toyota v. Williams, have effectively eliminated the
ADA protection for many people with disabilities, particularly
in the workplace.
Those who have been excluded from the protections of the
ADA are individuals whom we explicitly intended to protect
under the statute. About this there can be no question that
specific language in the House and Senate committee reports
bears that out.
The goal then, as now, was to ensure that all Americans
with disabilities have the opportunity to participate in all
aspects of American society. For many people with disabilities,
a job or a career represents the optimum link to the American
dream. The idea that an employee with a disability is entitled
to a reasonable accommodation at work is not a controversial
concept. Most people with disabilities just want an opportunity
to work, and to earn a paycheck, just like the rest of us.
To be totally realistic, we must recognize that the ADA
Restoration Act is no silver bullet when it comes to increasing
job opportunities for people with disabilities. Many more
individuals must be empowered through education and job
training programs so that they can use their gifts and talents
in the workplace. And more employers will have to take a
proactive approach to hiring people with disabilities.
Our goal must be to see that people are protected in the
workplace against discrimination, because of impairments,
irrespective of whether or not they are able to use mitigating
measures to become maximally productive.
Nonetheless, I believe that it is time for Congress to
restore the balance and original intent, and the protections
for individuals with disabilities under this important civil
rights statute that all of us worked so hard to put into place
17 years ago by taking action and passing the ADA Restoration
Act.
Thank you very much, Senator.
[The prepared statement of Mr. Thornburgh follows:]
Prepared Statement of Dick Thornburgh
Thank you for that kind introduction. My name is Dick Thornburgh
and I am currently counsel to the national law firm of Kirkpatrick &
Lockhart Preston Gates Ellis LLP, resident in their Washington, DC.
office. I am the former Attorney General of the United States and the
former Governor of Pennsylvania. It is an honor to be here before you
today to testify about the need for immediate consideration and passage
of the ADA Restoration Act, S. 1881.
When I served as Attorney General of the United States under
President George H.W. Bush, one of my proudest achievements was working
on passage of the ADA. As parents of a child with a disability, both my
wife and I fully understand the importance of the ADA to the 54 million
Americans with disabilities and their families. The ADA--which sets as
its goals equality of opportunity, full participation, independent
living, and economic self-sufficiency for people with disabilities--is
one of the most significant pieces of civil rights legislation in the
past 25 years, and has changed the lives of millions of Americans with
disabilities.
On occasions like this, I always have in my mind that glorious,
sun-filled day, July 26, 1990, on the South Lawn of the White House,
when President George H.W. Bush signed into law the Americans with
Disabilities Act. None of the 3,000 or so persons, with and without
disabilities, present for the event will ever will forget the
excitement of that day, as this bill of rights for millions of
Americans became the law of the land.
Make no mistake about it--the passage of the ADA 17 years ago was
the result of strong, bipartisan work. I was personally involved in
these negotiations in my role as Attorney General of the United State
during the Bush Administration. Together, the Bush Administration and
Congress--both the Senate and the House, Republicans and Democrats--as
well as the business community and the disability community--worked
together to get this important civil rights legislation passed. It took
the personal investment of many individuals too numerous to mention--
Boyden Gray, Samuel Skinner, President George H.W. Bush--as well as
Senators Dole, Hatch, Harkin, and Kennedy and an equal number of
committed members of the House. All of us worked together with one goal
in mind--to break down the barriers to people with disabilities, and to
open the social and economic door to the mainstream of American life.
The passage of the Americans with Disabilities Act of 1990 was truly a
cooperative effort.
Today I remain proud of the tremendous strides we have made in the
empowerment of people with disabilities since the enactment of this
important civil rights legislation. Many more people with disabilities
have greater opportunities than ever before. We see greater numbers of
children and adults with disabilities around us, partaking of the
diverse benefits our society has to offer. We can feel the impact of
improved accessibility. Moreover, the Americans with Disabilities Act
has become a beacon and a model for disability policy reform throughout
the world.
Yet despite this substantial progress, the ADA has not been as
effective as intended in protecting some individuals with disabilities
from employment discrimination. This problem is the direct result of
judicial interpretation--or misinterpretation--of the definition of who
qualifies as an ``individual with a disability'' under the statute.
Under the three 1999 Supreme Court decisions in Sutton, Murphy and
Kirkingburg, as well as a series of lower court decisions, the
definition of who qualifies as an ``individual with a disability'' has
become so restrictive, and difficult to prove, that millions of people
we all intended to protect from discrimination--including people with
intellectual and developmental disabilities, bipolar disorder, multiple
sclerosis, epilepsy, and diabetes--are no longer covered by the law's
protections. I don't think there are any among us who think that these
conditions do not qualify as disabilities. Yet this is what the courts
have concluded over and over again since 1999, and what now needs to be
fixed by Congress.
And the problem that we now face is actually worse than that. In
many instances these individuals are caught in a bizarre and unintended
Catch-22. If they are taking their medication or using other measures
to mitigate the impact of their disability, they risk that a court will
no longer consider them to have an impairment that ``substantially
impacts one or more major life activities'' and will conclude that they
are not ``disabled'' and thus not entitled to the reasonable
accommodation and antidiscrimination protections of the statute--even
if their symptoms would return as soon as their medication stopped. It
is absurd to imagine that whether an individual is entitled to a
reasonable accommodation--such as modifying a work schedule or having
access to a communications device--should be judged in inverse
proportion to their efforts to manage the symptoms of their disability.
Clearly this is not what was intended by those who worked together
cooperatively in the years leading up to ADA passage in 1990. In fact,
it is quite the opposite.
The definition of disability under the ADA is taken from the
definition of ``handicapped individual'' contained in the
Rehabilitation Act of 1973. When we were looking for an appropriate
definition, I remember thinking that we should go with something
familiar and that had worked well; and thus we turned to the definition
of disability under the Rehabilitation Act. Prior to enactment of the
ADA, courts had interpreted the term ``handicapped individual'' under
the Rehabilitation Act broadly to include people with a wide variety of
physical and mental impairments, including (for example) epilepsy,
diabetes, multiple sclerosis, hearing and vision impairments, cerebral
palsy, heart disease, and intellectual and developmental disabilities.
These impairments were recognized as disabilities even where a
mitigating measure--like medication or a hearing aid--might lessen
their impact on the individual. In most cases, defendants and the
courts accepted that a plaintiff was a member of the protected class
(``handicapped individual'') and moved on to the merits of the case,
examining, for example, whether the plaintiff was qualified to perform
the job, or whether a reasonable accommodation might cause an undue
burden on the employer.
In addition to favorable treatment by the lower courts, the Supreme
Court had also endorsed a ``broad'' interpretation of the definition of
``handicapped individual'' before Congress decided to adopt this model
for the definition of disability in the ADA, as in the case of School
Board of Nassau County v. Arline.
The repetition of this definition in the ADA thus was meant to
incorporate the Rehabilitation Act's administrative and judicial
interpretations that had worked well to provide antidiscrimination
protection to people with disabilities. Just to be sure, the
legislative language went even further and included a specific
statutory provision requiring courts to interpret the ADA to provide at
least as much protection as the Rehabilitation Act and its implementing
regulations:
Except as otherwise provided in this chapter, nothing in this
chapter shall be construed to apply a lesser standard than the
standards applied under Title V of the Rehabilitation Act of
1973 (29 U.S.C. Sec. 790 et seq.) or the regulations issued by
the Federal agencies pursuant to such title. 42 U.S.C.
Sec. 12201(a).
Yet, despite consensus at the time between the Administration,
Congress, Republicans, Democrats, the disability community, and the
business community about the desired result, our best efforts did not
achieve the intended result, nor the result that all of us had
expected. The Supreme Court's decisions in Sutton, Murphy, Kirkingburg,
as well as in Toyota v. Williams, have effectively eliminated the ADA
protections for many people with disabilities, particularly in the
workplace. Those who have been excluded from the protections of the ADA
are individuals whom we explicitly intended to protect under the
statute. About this there can be no question--the specific language in
the House and Senate Committee Reports bears that out.
The goal then, as now, was to ensure that all Americans with
disabilities have the opportunity to participate in all aspects of
American society. For many people with disabilities, a job or a career
represents the optimum link to the American dream. The idea that an
employee with a disability is entitled to a reasonable accommodation at
work is not a controversial concept. Most people with disabilities just
want an opportunity to work and to earn a paycheck, just like everyone
else.
I believe that it is time for Congress to restore the original
intent and protections for individuals with disabilities under this
important civil rights statute that all of us worked so hard to put
into place 17 years ago by taking action and passing S. 1881, the ADA
Restoration Act.
Senator Harkin. Thank you, General, and thank you again for
all of your work through all these years. Thanks for that
powerful statement, I've made some notes here on it.
Next we turn to Steven Orr, a licensed pharmacist from
Rapid City, SD. As I said, he experienced discrimination based
upon his diabetes, was found not to be protected under the ADA,
and is here today to share a story with the committee.
Steven has two sons and a daughter, likes to ride his
motorcycle--I question that, but--travel and spend time with
his family. I used to ride a motorcycle, but I was a lot
younger than you are, I'll tell you that.
[Laughter.]
Steven has also volunteered for the American Diabetes
Association.
Mr. Orr, welcome, please proceed.
STATEMENT OF STEVEN ORR, PHARMACIST, RAPID CITY, SD
Mr. Orr. Thank you. Good afternoon, my name is Steven Orr,
I'm a licensed pharmacist from Rapid City, SD.
Thank you for the opportunity to speak, I would like to
provide some highlights from my written testimony.
I have lived with Type I diabetes since 1986, and take
excellent care of my health. Today, I use an insulin pump. I
must administer insulin multiple times each day.
I must administer this insulin to treat my condition, as
recommended by my doctors in maintaining tight glucose control.
This is incredibly important, it helps prevent the serious
long- and short-term consequences of diabetes, including heart
disease, amputation, blindness and death.
In 1997, I was invited to apply for a position as manager
of a Wal-Mart pharmacy in Chadron, NE. It was a great
opportunity, I had lived there previously, and my children and
family are still there.
I never imagined that my diabetes could lead to me being
fired from a job, however, that is exactly what happened. When
I was hired by Wal-Mart, my diabetes management regimen
included three insulin injections daily, and meal breaks to
prevent me from suffering from dangerously low blood glucoses,
or high hypoglycemia.
Severe hypoglycemia can cause seizure, unconsciousness or
even death.
Prior to being hired, I disclosed to my District Manager
that I had diabetes and that I would need a regularly-
scheduled, uninterrupted half hour lunch break to check my
blood glucose and to eat.
Because I was going to be the only pharmacist, my manager
agreed to close the pharmacy while I took my lunch break.
The pharmacy opened in January 1998. The first 6 weeks went
very well. Then the regional management changed, and I was told
that I could no longer close the pharmacy for my lunch. I tried
to accommodate the store's request, but I was unable to do so
and safely manage my diabetes. My glucose levels plummeted.
For example, one day I had a blood glucose reading of 41 mg
per deciliter. A healthy level ranges between 80 and 120. I was
unable to eat until after 2 p.m.. As soon as I went to the
snack bar, I was paged back to the pharmacy.
This was not a one-time occurrence, and for the next 3
months, I experienced repeated dangerous low levels on the job,
including a blood glucose level of 32.
I told my supervisor how unhealthy it was for me to
continue skipping lunch, but he refused to allow me a routine,
daily half hour lunch break.
Finally, to protect my health, I returned to taking
lunches. On May 12 I was fired. Let it be clear, when I was
fired, it was told flat out, it was because I had diabetes.
After this discrimination, I sued Wal-Mart for violating my
rights under the ADA, however, the U.S. District Court ruled
against me, and the U.S. Court of Appeals rejected my appeal,
because of the U.S. Supreme Court's decision narrowing the law,
I was not considered disabled under the act for the sole reason
that my diabetes is under such good control.
Amazingly, the Court ignored the fact that when I was
working at Wal-Mart, I was prevented from properly managing my
diabetes condition by my employer, my case was dismissed, and I
never had a chance to prove that, with a very small, reasonable
accommodation, I could both perform my job and protect my
health.
Ironically, Wal-Mart now allows the pharmacy to close for
lunch.
I also know my request was reasonable, because every other
employer I have ever had--including my present employment--has
been able to accommodate my need for a lunch break, and I've
been able to fully perform all of my duties and successfully
manage my diabetes.
It's not right that the same employer that fired me because
of my diabetes, could then claim that I did not meet the
definition of disability under the ADA.
I'm before you today to say that even with proper diabetes
management, this disease affects me every day, every hour of my
life. I must constantly try my hardest to maintain a balance
between dangerously high and dangerously low blood glucose
levels. The good news is that I have largely been successful in
keeping myself safe and healthy. Yet it was because I worked so
hard to manage my diabetes to make myself a productive employee
and citizen, that the court found that I didn't merit the
protection from discrimination.
Again, thank you for the opportunity to speak today. Thank
you.
[The prepared statement of Mr. Orr follows:]
Prepared Statement of Stephen C. Orr, R.Ph.
Mr. Chairman and members of the committee, good morning. My name is
Stephen Orr and I am a licensed pharmacist from Rapid City, SD. Thank
you for the opportunity to testify before the committee today. It is a
pleasure to be here speaking to you, Chairman Harkin, Senator Enzi and
the other distinguished members of this committee. I appreciate you
holding this hearing on restoring the Americans with Disabilities Act
(ADA) and for providing me with the opportunity to tell my story of
discrimination.
I have lived with type 1 diabetes since 1986 and take excellent
care of my health. Having type 1 diabetes means that I must administer
insulin multiple times each day in order to survive. As a pharmacist, I
provide others with information about how to manage their diabetes
throughout the day--and I take that advice very seriously: treating my
condition as recommended by my doctors and maintaining tight blood
glucose control.
I'd like to explain a little about diabetes so that you know what I
mean by ``tight blood glucose control.'' Diabetes is a condition in
which the pancreas either does not create any insulin, which is type 1
diabetes, or the body doesn't create enough insulin and/or cells are
resistant to insulin, which is type 2 diabetes. Insulin is a hormone
that allows glucose or sugar to move from the blood stream into the
cells where it is used for energy. Thus, untreated diabetes results in
too much glucose in the blood stream. High blood glucose levels, known
as hyperglycemia, can be very dangerous in the short-term and, in the
long-term, it is high blood glucose levels that lead to the many long-
term complications of diabetes including blindness, heart disease,
kidney disease, and amputation. Thus, I administer insulin to myself in
order to lower my blood glucose level. However, while a normal pancreas
is able to secrete just the right amount of insulin, it is much harder
for a person with diabetes to maintain blood glucose level in a safe
range. If I end up with too little insulin in my system I will have
hyperglycemia. But, if I end up with too much insulin in my system I
will experience a condition call hypoglycemia. Hypoglycemia occurs when
blood glucose falls below 70 mg/dL. Low blood glucose levels can be
caused by skipping or delaying a meal, more exercise or physical
activity than usual, too much insulin, or not following your schedule
for taking your insulin or diabetes pills. Mild or moderate
hypoglycemia is pretty common for children and adults who take insulin
but hypoglycemia can turn severe--leading to seizure or
unconsciousness--in very little time. Severe hypoglycemia is a life-
threatening condition.
In short, hypoglycemia and hyperglycemia are conditions that happen
when insulin and blood glucose are out of balance. In order to manage
my diabetes I need to carefully monitor my blood glucose level by self-
administering a blood test numerous times a day and adjusting the
amount of insulin I administer to take into account the food I eat, the
exercise I get, and other factors such as illness. The reason I strive
for tight blood glucose control is that research has established that
is the way to avoid the devastating long-term complications of
diabetes.
In 1997, a Wal-Mart district manager invited me to apply for a
position as manager of the company's pharmacy in Chadron, NE. It
sounded like a great opportunity. At the time, I was working as a
pharmacist in Rapid City, SD, but had lived in Chadron previously and
looked forward to moving the 110 miles back to the town where my
children resided and countless other family and friends still lived.
The job had a great salary and, as I was 47 years old, I expected to
retire from there.
Having lived with diabetes for so long, I never imagined that my
diabetes could lead to my getting fired. However, that is exactly what
happened. In essence I lost my job as a result of trying to protect my
health and safety even though none of that interfered with me being a
good pharmacist.
At the time that I was hired by Wal-Mart, my diabetes management
regimen included, among other things, three insulin injections daily,
as well as half-hour lunch breaks to prevent me from suffering from
hypoglycemia. Prior to being hired, I disclosed to my district manager
that I had diabetes and that I would need to have a regularly
scheduled, uninterrupted, lunch break to check my blood glucose level
and eat. I only accepted the position after my new employer agreed to
the terms by which I could take the care necessary to manage my
condition. Based upon this agreement, I accepted the position and moved
to Chadron.
On January 3, 1998, I began training in the Rapid City Wal-Mart
Pharmacy. By the end of the month, we held the Grand Opening of the
Chadron Wal-Mart Supercenter, and the in-store pharmacy formally
opened. As the only pharmacist at this location, taking a lunch meant
closing the pharmacy during that time period--one of the initially
agreed upon terms for my employment. However, a mere 6 weeks after I
started work, the regional management changed. I was told by a new
district manager that I could not close for lunch breaks. I was
instructed that I should eat behind the pharmacy if and when things
slowed down. I tried to comply with the request, but was unable to do
so and safely manage my diabetes. My blood glucose readings plummeted.
For example, on March 12, 1998, I had a blood glucose reading of 41 mg/
dL. On this particular day, I was unable to eat until after 2 p.m. When
I walked over to the snack bar to pick up lunch I was paged back to the
pharmacy. Unfortunately, this was not a one time occurrence and for the
next 3 months I experienced repeated dangerously low hypoglycemia on
the job, including a blood glucose level of 32 mg/dL on May 6, 1998.
I spoke to my supervisor in order to explain how unhealthy it would
be for me to continue the practice of skipping lunch, but he refused to
consider accommodating my medical condition. In order to protect my
safety, I was forced to return to my practice of taking half-hour
lunches and on May 12, 1998, I was discharged. Let me be clear: when I
was fired, I was told flat out that it was because I had diabetes.
After the discrimination I experienced, I brought a case against
Wal-Mart Stores, Inc. for violating my rights under the Americans with
Disabilities Act. However, the U.S. District Court granted summary
judgment against me and the U.S. Court of Appeals rejected my appeal.
The appeals court said that because of Supreme Court decisions
narrowing the Federal law, I was not considered ``disabled'' under the
act--for the sole reason that my diabetes is under such good control.
The appeals court agreed with my testimony that when my blood glucose
level is not within a safe range I suffer from a variety of immediate
complications including vision impairment, low energy, lack of
concentration and mental awareness, lack of physical strength and
coordination, slurred speech, difficulties typing and reading, and
slowed performance. Yet, the court said that I could not rely on
evidence of how I was when my blood glucose level was not within a safe
range. Rather, the court said:
[N]either the district court nor we can consider what would or
could occur if Orr failed to treat his diabetes or how his
diabetes might develop in the future. Rather, [the Supreme
Court decision in] Sutton [v. United Airlines] requires that we
examine Orr's present condition with reference to the
mitigating measure taken, i.e., insulin injections and diet,
and the actual consequences which followed.\1\
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\1\ Orr v. Wal-Mart Stores, 297 F.3d 720, 724 (8th Cir. 2002).
Amazingly, the court ignored the fact that when I was working at
Wal-Mart, I was prevented from properly managing my condition by my
employer. That is, Wal-Mart took away the means I had to manage my
disease, I became ill, and then my case was thrown out of court because
the judges insisted upon viewing me as I would be if I had been allowed
to properly manage my disease.
My case was dismissed and I never had a chance to try to prove
that, with a very small reasonable accommodation, I would have been
able to both fully perform my job and protect my health and safety.
Ironically, as a corporate policy, Wal-Mart is now allowing the
pharmacy in Chadron to be closed for a 30-minute period, although there
is still only one pharmacist on duty.
I find it tremendously unfair that the same employer that fired me
because of my diabetes could then successfully claim that I did not
meet the definition of disability under the ADA. I ask that you amend
the law so that the focus of cases like mine is on whether the
individual can do the job, rather than lawsuits about the private
details of an individual's medical condition. I stand before you to say
that, even with proper diabetes management, this disease affects me
every day, every hour of my life. I must constantly try my hardest to
maintain a balance between dangerously high and dangerously low blood
glucose levels. Diabetes affects everything I do from eating to
physical activity. The good news is that I have largely been successful
in keeping myself safe and healthy. Yet, it was because I work so hard
to manage my diabetes to make myself a productive employee and citizen
that the court found that I didn't merit protection from
discrimination.
I wish my case was unique but it is not. Too many people have had
their ADA claims dismissed because they were found by the courts not to
be sufficiently disabled under the courts' misguided interpretation of
the definition of disability under the ADA. Congress must restore the
ADA to what it was intended to be--a comprehensive mandate to protect
all Americans from discrimination based on disability.
Again, thank you for the opportunity to speak before you today.
Senator Harkin. I'm sorry, thank you Mr. Orr for, again,
bringing a real life case here, I'll have more to ask you about
that when we get into questions, but I appreciate your coming
this great distance.
Camille Olson, partner in the law firm of Seyfarth & Shaw,
LLP, a national firm with the largest Labor & Employment
practices in the United States.
Ms. Olson quoted a book entitled, Labor and Employment Law:
The Employer's Compliance Guide, that was in 2006. Most
recently in 2006, Ms. Olson participated on behalf of employer
groups and ADA shareholder meetings, focusing on analyzing the
impact of various aspects of the ADA since its enactment.
Ms. Olson, welcome to the committee, and please proceed.
STATEMENT OF CAMILLE OLSON, ATTORNEY, SEYFARTH & SHAW, CHICAGO,
IL
Ms. Olson. Thank you, Senator Harkin, good afternoon.
Senator Harkin, and other members of the committee, my name
is Camille Olson. In addition to the background you just
described, I also regularly teach employment discrimination at
Loyola University School of Law in Chicago, IL, which is my
hometown.
My legal practice is focused on equal employment
opportunities to clients from employers. Working with employers
every day on ADA compliance demonstrates some of the successes
that have been achieved as a result of the passage of the ADA.
Employers have completely revised their applications, their
pre-hire processes, implemented job descriptions, they've also
modified jobs as well as workplace infrastructures, and
developed policy statements, as well as ruled out training for
all of its employees to ensure individuals in the workplace
understand the rights of individuals with disabilities.
Yet, I would have to say that one of the most important
changes brought about by the Americans with Disabilities Act is
the impact on the way employers think. Today, employers do not
focus on how the job is done, instead employers focus on what
the job requires, a change in the workplace that was entirely
driven by the Americans with Disabilities Act.
When employers do not comply with the act, there's been a
record--which I have cited in my written testimony as presented
to the committee, of both the enforcement of the rights of the
individuals with disabilities before the Equal Employment
Opportunity Commission, as well as through court proceedings.
I strongly support equal employment opportunity in
employment. However, S. 1881 goes far beyond clarifying the
original intent and language of the ADA. Instead, it would
expand the ADA in three ways; first, by removing the current
ADA requirement that a disability, ``substantially limits a
major life activity,''; second, by prohibiting consideration of
mitigating measures; and, third, by shifting the burden of
proof from employees to employers as to whether an individual
is qualified to perform the essential functions of a job. I
will address each of these three concerns.
First, in attempting to clarify the ADA, S. 1881 defines
all individuals with any mental or physical impairment, as
disabled. Regardless of whether any of those impairments are
functionally limiting to the individual. S. 1881 limits all
impairments, and labels them all as per se disabilities,
repeating the wrong that the ADA was originally designed to
eliminate.
An impairment must also substantially limit the person in
one or more major life activities to be considered a
disability. That's true under the Rehabilitation Act, it's true
under the EEOC regs, and it's been true throughout all of the
court proceedings with respect to all disability rights with
legislation.
Courts have consistently held that where an impairment such
as diabetes, such as mental retardation, such as epilepsy, does
substantially limit major life activities, that a plaintiff is
covered under the ADA.
The same thing is true under the Rehabilitation Act. The
court, under each of those acts, have also held that
individuals with those exact same impairments did not meet the
definition of disability, under the ADA and under the
Rehabilitation Act, because showing that you have a mental or
physical impairment is only one part of the definition of a
disability, under any of those disability rights statutes.
What would be the practical effect of defining an ADA
disability as an impairment? It is telling that no one has
provided this committee with a list of conditions that would
not be covered under S. 1881. I ask you to consider, what
impairment would be excluded? Employers will find themselves
addressing accommodation requests from individuals with the
flu, with poison ivy, ankle sprains, stomach aches, the
occasional headache, a toothache, and a myriad of other minor
medical conditions that go far beyond any reasonable concept of
disability. There is no limitation on the definition of
disability under S. 1881, and as a result, it should not be
adopted as the new definition of disability under the ADA.
Second, prohibiting employers from considering mitigating
measures, and both their positive and negative effect in
determining whether someone that has a disability, will label
the vast majority of us sitting in this room today, and the
vast majority of us in America, as disabled under the ADA.
The clearest example that can be given pertains to
eyesight. All of us who wear glasses or contact lenses would be
covered. The plain language of the ADA, as well as its
functional approach, are inconsistent with this interpretation.
Third, S. 1881 shifting the burden of proof to the
employers demonstrates that an individual alleging
discrimination, ``is not a qualified individual with a
disability,'' while the facts lie with the plaintiff. And this
shift is inconsistent with the balance of the rights and
obligations between disabled employees and their employers.
The ADA imposes certain affirmative obligations on lawyers.
Those obligations result in preferences that only people with
disabilities are entitled to receive. It would be unfair and
impracticable to circumscribe employers from inquiries
regarding medical conditions, as the law currently does, and at
the same time to impose on employers the burden of proving that
a plaintiff is not a qualified individual under the ADA, as S.
1881 would do.
S. 1881's reversal of Congress' allocation of the burden of
proof also contravenes the fundamental tenants of law, that
disfavors proof of a negative proposition.
In conclusion, Congress, the courts and the EEOC have all
recognized the imperatives of an individualized inquiry into
the impact of an impairment on each individual in determining
coverage under the ADA, as well as other disability statutes.
In contrast, S. 1881 would label all people with a
particular condition as disabled, irrespective of whether the
condition even impairs--let alone substantially limits--any
major life activities.
For these reasons, and other reasons that are contained in
my submitted written testimony, I express serious concern with
S. 1881's definition of disability and it's shift of the burden
of proof to employers.
Mr. Chairman, and members of the committee, I thank you for
this opportunity to share some of those concerns with you
today.
[The prepared statement of Ms. Olson follows:]
Prepared Statement of Camille A. Olson
Good afternoon, Mr. Chairman and members of the committee. My name
is Camille A. Olson, and I am pleased to present this testimony
addressing S. 1881, the Americans with Disabilities Act Restoration Act
of 2007 (``S. 1881''). I am a Partner with the law firm of Seyfarth
Shaw LLP. Seyfarth Shaw is a national firm with nine offices and has
one of the largest labor and employment practices in the United States.
Nationwide, over 350 Seyfarth Shaw attorneys provide advice, counsel,
and litigation defense representation in connection with discrimination
and other labor and employment matters affecting employees in their
workplaces.\1\
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\1\ I would like to acknowledge Seyfarth Shaw attorneys William P.
Schurgin, Condon A. McGlothlen, Anne E. Duprey, Annette Tyman, Kyle R.
Hartman, Laura E. Reasons, Jonathan J.C. Grey, and law clerk Katherine
Mendez for their invaluable assistance in the preparation of this
testimony.
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I am chairperson of Seyfarth Shaw's Labor and Employment
Department's Complex Discrimination Litigation Practice Group. I have
practiced in the areas of employment discrimination counseling and
litigation defense for over 20 years at Seyfarth Shaw's home office in
Chicago, IL. Our firm has been actively involved in the legislative and
regulatory process surrounding the Americans with Disabilities Act \2\
since its passage in 1990. Members of our firm, along with our training
subsidiary, Seyfarth Shaw at Work, have also written treatises on the
ADA; advised thousands of employers on complying with the ADA; trained
tens of thousands of managers and employees on the requirements of the
ADA; and actively conducted employer audits and developed workplace
best practices under the ADA.
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\2\ Pub. L. No. 101-336, 104 Stat. 327 (1990) (codified at 42
U.S.C. Sec. Sec. 12101-12213 (1994); 47 U.S.C. Sec. 225711 (2001)).
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My personal legal practice is focused on equal employment
opportunity compliance--counseling employers as to their legal
obligations under the ADA, developing best practices in the workplace,
training managers and supervisors on the legal obligations they have
under the ADA, and litigating ADA and other employment discrimination
cases. I also regularly teach employment discrimination at Loyola
University School of Law in Chicago, IL. I am a frequent lecturer and
have published numerous articles and chapters on various employment and
discrimination issues. For example, in 2006 I co-edited a book entitled
Labor and Employment Law: The Employer's Compliance Guide for Thompson
Publishing Group. I am also a member of the U.S. Chamber of Commerce's
policy advisory committee on equal employment opportunity matters, and
I am a member of the Board of Directors of a number of business and
charitable institutions. Most recently, in 2006 I participated, on
behalf of employer groups, in ADA shareholder meetings focused on
analyzing the impact of various aspects of the ADA since the ADA's
enactment.
Today, I have been invited to discuss with you the meaning and
impact of the Americans with Disabilities Act Restoration Act of 2007
(S. 1881). There can be no question that sponsors of S. 1881 have
proposed changes to the ADA with the intent of benefiting individuals
with disabilities. S. 1881's proposed changes, however would
unquestionably expand ADA coverage to encompass almost any physical or
mental impairment--no matter how minor or short-lived. In essence, S.
1881 changes the focus of the ADA from whether an individual has a
functional ``disability'' to whether the individual has an
``impairment,'' without regard to whether the impairment or ailment in
any way limits the individual's daily life. Indeed, under the proposed
definition, almost anything less than perfect health would be a
disability under the ADA.
While I strongly support equal opportunities in employment and, in
particular, the inclusion of individuals with disabilities in the
workplace, I respectfully submit that, if enacted, S. 1881, as
currently drafted, would go far beyond clarifying the original intent
and language of the ADA. While I recognize that many current members of
this committee were among the original sponsors of the ADA, and I
cannot deny the frustration which some of you have expressed over
certain interpretations of the statute, I urge you to look carefully at
the language of S. 1881, because I do not believe that it is the best
course of action.
Instead of clarifying the ADA, S. 1881 would expand the ADA by (1)
removing the current ADA requirement that a disability ``substantially
limit a major life activity;'' (2) prohibiting consideration of
mitigating measures that an individual may be using, such as medication
or devices, when determining whether the individual has a disability;
and (3) shifting the burden of proof from employees to employers as to
whether an individual is ``qualified'' to perform the essential
functions of a job.
When we were initially involved in the legislative and regulatory
process surrounding the ADA in the late 1980s and early 1990s, no
Federal statute provided comprehensive protection to individuals with
disabilities. Congress's focus then was on Americans with disabilities
who had been shut out of the workplace--persons who were substantially
limited in major life activities such as their ability to hear, see,
walk, speak, eat, perform manual tasks, and/or care for one's self.
When we spoke of individuals with disabilities at that time, many of us
focused on the millions of individuals who were deaf or hard of
hearing, blind, or who were significantly limited in their mobility.
Ironically, from 1993 to the present, the average number of ADA
charges filed with the EEOC by individuals who are deaf or hearing
impaired consistently represent only 3 percent of all ADA claims
filed.\3\ Instead, the most common ADA claim filed relates to back
conditions, representing close to 13 percent of all ADA claims, which
are often the result of workplace injuries that are otherwise covered
by workers' compensation laws.\4\ Indeed, individuals with conditions
such as cancer, diabetes, and epilepsy combined have historically
accounted for less than 10 percent of all ADA charges filed.\5\
Moreover, these historical percentages have remained unchanged
following the Supreme Court decisions that have given rise to today's
proposed legislation.\6\
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\3\ EEOC.gov, ADA Charge Data by Impairments/Bases--Receipts http:/
/www.eeoc.gov/stats/ada-receipts.html (last visited Nov. 13, 2007).
\4\ Id. (see, especially, Intake Averages for Non-Paralytic
Orthopedic Impairment and Orthopedic and Structural Impairments of the
Back).
\5\ Id.
\6\ Id.
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Our experience in working with employers every day on ADA
compliance in their workplaces demonstrates some of the successes that
have been achieved as a result of the passage of the ADA. Employers
have completely revised their application and pre-hire processes to
ensure that individuals with disabilities fully participate in the
opportunities available for open positions. Employers have made
significant modifications to jobs and aspects of workplace
infrastructure to ensure that all employees have access to the same
terms and conditions and benefits of employment. Employers have
developed policy statements and implemented training programs in their
workplaces to sensitize fellow employees and their managers to the
rights of individuals with disabilities. Employers have regularly
engaged in the interactive process with employees and medical
professionals, as well as the Job Accommodation Network, and other
accommodation resources, to ensure that they are providing appropriate
reasonable accommodations to individuals with disabilities.
Yet, one of the most important changes brought about by the ADA is
its impact on the way employers think. Today, employers focus on not
``how'' the job is done, but instead on ``what'' the job requires. Most
employers large and small now have job descriptions describing
essential job functions, and they use those as objective hiring
guides--a change in the hiring landscape driven entirely by the ADA.
And, when employers do not comply with the obligations of the ADA,
there has been a record of enforcement of the rights of individuals
with disabilities before the EEOC \7\ and in court proceedings.\8\
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\7\ For example, from July 26, 1992, through September 30, 2006,
the EEOC reports that 235,465 charges were filed by individuals
claiming violations of their rights under the ADA. Each year, since
1992, the EEOC has resolved charges that have provided monetary
benefits totaling approximately $44,000,000 per year to charging
parties, for a total of $622,600,000 in monetary benefits throughout
this time period. These monies do not include monetary benefits
obtained by individuals or the EEOC through litigation in court.
EEOC.gov, ADA Charges FY 1997-FY 2006, http://www.eeoc.gov/stats/ada-
charges.html (last visited Nov. 13, 2007).
\8\ Courts have enforced significant monetary awards and entered
injunctions to ensure ADA compliance where employers were found not to
comply with existing ADA obligations. See, e.g., E.E.O.C. v. Tommy
Bahama Group, No. 2:06-CV-01406-RSM (Empl. Discrim. Verdicts &
Settlements) (BNA) (W.D. Wash. June 4, 2007) (consent decree enjoining
employer from further ADA violations and requiring notices, training,
and other relief); E.E.O.C. v. AmSan LLC, No. 2-06CV-260-J (Empl.
Discrim. Verdicts & Settlements) (BNA) (N.D. Tex. May 23, 2007)
(enjoining employer from engaging in ADA violations); Harding v. Cinbro
Corp., No. 04-158-B-W (D. Me. August 22, 2006) (Empl. Discrim. Verdicts
& Settlements) (BNA) (jury verdict in favor of employee who was
terminated shortly after disclosing his medical condition to his
employer); E.E.O.C. v. EchoStar Commc'ns Corp., No. 02-CV-00581 (Empl.
Discrim. Verdicts & Settlements) (BNA) (D. Colo. May 6, 2005) (jury
verdict in favor of blind applicant for failure to provide reasonable
accommodation); Brady v. Wal-Mart Stores Inc., No. 03-CV-3834 (E.D.N.Y.
February 23, 2005) (Empl. Discrim. Verdicts & Settlements) (BNA) (jury
verdict in favor of disabled worker for violations under ADA and NY
State Human Rights Law); Zolnick v. Graphic Packaging Corp., No. 00-CV-
1800 (Empl. Discrim. Verdicts & Settlements) (BNA) (D. Colo., September
24, 2004) (jury verdict in favor of a disabled worker who was not
allowed to return to work following recovery from brain aneurysm);
Young v. DaimlerChrysler, No. IP-01-299-C-M/S (Empl. Discrim. Verdicts
& Settlements) (BNA) (S.D. Ind. June 21, 2004) (jury verdict in favor
of disabled worker denied transfer that would have accommodated her
severely injured right arm).
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In attempting to clarify the ADA, S. 1881 engages in precisely the
wrongful conduct that the law was intended to prevent.\9\ In defining
all impaired individuals as disabled, S. 1881 labels as ``disabled''
all individuals with impairments of any sort or degree--regardless of
whether those impairments are functionally limiting. Congress expressly
repudiated this approach in 1990:
---------------------------------------------------------------------------
\9\ 42 U.S.C. Sec. 1201 (a)(5)(7).
[I]ndividuals with disabilities are a discrete and insular
minority who have been faced with restrictions and limitations,
subjected to a history of purposeful unequal treatment, and
relegated to a position of political powerlessness in our
society, based on characteristics that are beyond the control
of such individuals and resulting from stereotypic assumptions
not truly indicative of the individual abilities of such
individuals to participate in, and contribute to, society; . .
. \10\
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\10\ 42 U.S.C. Sec. 1201 (a)(7) (emphasis added).
In effect, S. 1881 engrafts the ``regarded as'' definition into the
first prong of the statutory definition of who is ``disabled'' under
the act. Put another way, Congress would be ``regarding as'' disabled,
individuals with non-disabling impairments. In a misguided attempt to
advance the rights of persons with disabilities, the law would
incorporate the stereotypic assumptions that it has taken our Nation
years to advance above and beyond. By defining disability to mean
``impairment,'' S. 1881 makes all impairments per se disabilities, thus
repeating the wrongs the ADA was originally designed to eliminate.
Moving the ADA's focus away from individuals with disabilities to
individuals with impairments, as S. 1881 would do, will give virtually
every employee the right to claim reasonable accommodation for some
impairment, no matter how minor, unless the employer can prove that
doing so would be an undue hardship. Employers will find themselves
addressing potential accommodation requests from individuals with high
cholesterol, back and knee strains, colds, the flu, poison ivy,
sprained ankles, stomach aches, the occasional headache, a toothache,
and a myriad of other minor medical conditions that go far beyond any
reasonable concept of disability.
Similarly, prohibiting employers from considering mitigating
measures in determining whether someone has a disability will, in
effect, make almost every individual someone who has a disability under
the ADA. The clearest example pertains to eyesight. Without question,
the ability to see is a major life activity. By requiring that we
evaluate whether someone has a sight impairment without regard to
mitigating measures means that anyone who wears glasses, contact
lenses, has had laser surgery, or at any time in their life did not
have 20/20 uncorrected eyesight, will be considered a person with a
disability under the ADA.
Finally, the ADA, like all other civil rights legislation relating
to employment, currently requires the plaintiff to prove that he or she
was qualified for the job at issue. S. 1881 would instead require
employers, who are generally prohibited from inquiring into an
employee's medical condition under the ADA, to bear this burden of
proof, while the facts lie with the plaintiff.
For these reasons, and all of the reasons set forth below, I oppose
the Americans with Disabilities Act Restoration Act of 2007, as
drafted, and urge the committee to carefully review the issues raised
in this statement as it considers S. 1881.
the ada's original purpose and language
On July 26, 1990, the ADA was enacted into law with the stated
purpose of providing a ``clear and comprehensive national mandate'' to
eliminate discrimination against individuals with disabilities.\11\
Title I, the employment title of the ADA, has been considered the
``most comprehensive piece of disability civil rights legislation ever
enacted and the most important piece of civil rights legislation since
the 1964 Civil Rights Act.'' \12\ In enacting the ADA, Congress
expressly found, and included in the ADA's statutory language, that
``some 43,000,000 Americans have one or more physical or mental
disabilities. . . .'' \13\ Congress further found that individuals with
disabilities were left with no legal recourse to counter the historical
segregation and isolation that relegated the disabled to an inferior
status in society.\14\ Thus, the ADA's overarching goal was to bring
into the fold of mainstream society \15\ a ``discrete and insular
minority'' of disabled individuals who had been ``subjected to a
history of purposeful unequal treatment.'' \16\ Congress's findings,
quoted above, are expressly incorporated into the ADA itself.
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\11\ Title I relates to private and public sector employment. Title
II relates to State and local governments. Title III relates to places
of public accommodation. Title IV relates to telecommunications and
common carriers. Pub. L. No. 101-336, 104 Stat. 327 (1990) (codified at
42 U.S.C. Sec. Sec. 12101-12213 (1994); 47 U.S.C. Sec. 225711 (2001)).
\12\ Arlene Mayerson, The Americans with Disabilities Act--An
Historic Overview, 7 Lab. Law. 1 (1991); see also 1 Henry Perritt, Jr.,
Americans with Disabilities Act Handbook Sec. 1.01 at 3.
\13\ 42 U.S.C. Sec. 12101(a)(1).
\14\ 42 U.S.C. Sec. 12101(a)(2)-(5).
\15\ Remarks of President George Bush at the Signing of the
Americans with Disabilities Act (July 26, 1990), http://www.eeoc.gov/
ada/bushspeech.html (last visited Nov. 13, 2007).
\16\ 42 U.S.C. Sec. 12101(a)(7).
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The final version of the ADA was enacted into law following a
period of considerable debate, negotiation, and compromise between
Congress and President George H.W. Bush's administration.\17\ In the
spirit of such compromise, the enacted law ``recognize[d] the civil
rights of persons with disabilities as well as the economic restraints
of businesses and other entities covered by the Act.'' \18\ While
signing the ADA into law, President George H.W. Bush explained to
America's business community the careful balance of opportunities and
obligations reflected in the new law:
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\17\ 1 Perritt, Jr., Americans with Disabilities Act Handbook,
Sec. 2.02 at 19; The Americans with Disabilities Act: A Practical and
Legal Guide to Impact Enforcement and Compliance, Bureau of National
Affairs, Inc. at 35-62 (1990).
\18\ Mayerson, 7 Lab. Law. 1, 6 (1991).
You have in your hands the key to the success of this act,
for you can unlock a splendid resource of untapped human
potential that, when freed, will enrich us all. I know there
have been concerns that the ADA may be vague or costly, or may
lead endlessly to litigation. But I want to reassure you right
now that my administration and the U.S. Congress have carefully
crafted this Act. We've all been determined to ensure that it
gives flexibility, particularly in terms of the timetable of
implementation, and we've been committed to containing the
costs that may be incurred.\19\
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\19\ Remarks of President George Bush at the Signing of the
Americans with Disabilities Act (July 26, 1990), http://www.eeoc.gov/
ada/bushspeech.html (last visited Nov. 13, 2007).
The ADA defines an individual with a disability as someone who
either: (1) has a physical or mental impairment that substantially
limits that person in one or more major life activity; or (2) has a
record of such physical or mental impairment; or (3) is regarded as
having such a physical or mental impairment.\20\ This definition of
disability was adopted by Congress from Section 504 of the
Rehabilitation Act of 1973, the statutory predecessor to the ADA that
covered employers with Federal contracts and/or those receiving Federal
financial assistance.\21\
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\20\ 42 U.S.C. Sec. 12101(2).
\21\ Rehabilitation Act of 1973, Pub. L. No. 93-112, amended by
Pub. L. No. 93-516, 88 Stat. 1617 (1974) (codified at 29 U.S.C.
Sec. 701 et seq.)
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Under both the ADA and Rehabilitation Act, the definition of a
physical or mental impairment has always been defined very broadly.\22\
Similarly, the EEOC's ADA regulations define physical and mental
impairments as:
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\22\ 29 CFR pt. 1630, App. Sec. 1630.2(h) (2006).
(1) Any physiological disorder, or condition, cosmetic
disfigurement, or anatomical loss affecting . . . neurological,
musculoskeletal, special sense organs, respiratory (including speech
organs), cardiovascular, reproductive, digestive, genitor-urinary,
hemic and lymphatic, skin and endocrine: or
(2) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, or
specific learning disabilities.\23\
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\23\ 29 CFR Sec. 1630.2(h) (2006).
The language of the EEOC regulations mirrors that used in various
ADA committee reports as descriptive of physical or mental impairments
under the ADA.\24\ The EEOC regulations also mirror the 1977
regulations issued by the Department of Health, Education, and Welfare
(``HEW'') to define physical and mental impairments, and thereby
implement Section 504.\25\ Given this broad definition of impairment,
almost any physical or mental health condition--no matter how minor,
episodic, latent, or temporary--would be covered. Courts addressing the
meaning of impairment have held it to include the following examples of
minor conditions: tennis elbow, headaches, high cholesterol, contusions
to the knee, back strains, and knee strains.\26\ In sum, the definition
of physical or mental impairment, under both the Rehabilitation Act and
the ADA has been broad, sweeping, and inclusive for over 40 years.
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\24\ S. Rep. No. 101-16, at 22 (1989); H.R. Rep. No. 101-485, pt. 2
at 51 (1990); H.R. Rep. No. 101-485, pt. 3 at 28 (1990).
\25\ See 45 CFR Sec. 84.3(j)(2)(1) (2005). Advocates for the ADA
have described these regulations as ``the best source for understanding
the definition of disability under the ADA.'' Chai R. Feldblum, The
Americans With Disabilities Act Definition of Disability, 7 Lab. Law.
11, 12-13 (1991).
\26\ See, e.g., Cella v. Villanova Univ., 113 Fed. Appx. 454 (3d
Cir. 2004) (tennis elbow); Sinclair Williams v. Stark County Bd. of
Comm'rs, 7 Fed. Appx. 441 (6th Cir. 2001) (headaches); Benoit v. Tech.
Mfg. Corp., 331 F.3d 166 (1st Cir. 2003) (back and knee strains).
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For decades, Congress and the Federal agencies have agreed that a
physical or mental impairment is necessary, but not sufficient, to
trigger disability law protections. Beyond that, the impairment must
also substantially limit the person in one or more major life
activity.\27\ The 1977 HEW regulations, committee reports to the ADA,
and EEOC regulations all set forth an illustrative list of ``major life
activities'': ``caring for one's self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.''
\28\
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\27\ 42 U.S.C. Sec. 12102(2)(A).
\28\ See 45 CFR Sec. 84.3(j)(2)(ii) (2005); Senate Committee on
Labor and Human Resources, S. Rep. No. 101-16, 101st Cong., 1st Sess.,
at 22 (1989); 29 CFR Sec. 1630.2(i).
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The ADA's inclusion of ``substantially limits one or more of the
major life activities of such individual'' was the result of deliberate
and careful consideration by Congress. In adopting the substantial
limitation on a major life activity requirement, Congress (not the
Federal judiciary) made clear that covered disabilities do not include
``minor, trivial impairments, such as a simple infected finger.'' \29\
Given an increasingly global economy, and the challenges faced by U.S.
manufacturers competing with those in China and India, this committee
must consider: Is American business better able to bear that burden
now, than in 1990?
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\29\ S. Rep. No. 101-16, at 23 (1990); H.R. Rep. No. 101-485, pt. 2
at 52 (1990).
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Whether an impairment substantially limits a major life activity
for a particular person requires an individualized, case-by-case
assessment of how that person's impairment (or impairments) affects the
life of that individual. As even the EEOC has noted, ``the
determination of whether an individual has a ``disability'' is not
necessarily based on the name of the diagnosis of the impairment the
person has, but rather on the effect of that impairment on the life of
that individual.'' \30\
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\30\ 29 CFR pt. 1630, App. Sec. 1630.2(j).
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The ADA, like the Rehabilitation Act before it, did not attempt to
create a ``laundry list'' of impairments that are necessarily
disabilities, recognizing that some impairment may be disabling for
particular individuals but not others, and that new impairments may be
discovered in the future.\31\ Even short-term impairments can
constitute a disability under both the ADA and the Rehabilitation Act,
provided that such impairments substantially affect a major life
activity. Consistent with Congress's intent, the EEOC's ADA regulations
recognize that ``[m]any impairments do not impact an individual's life
to the degree that they constitute disabling impairments.'' \32\ In
sum, the individualized approach to determining ``disability'' under
the ADA, i.e., how a particular impairment affects a particular
individual in his or her major life activities, comports with how the
Rehabilitation Act has operated for over 40 years.\33\
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\31\ Id.
\32\ Id.
\33\ The analysis of ``who is a handicapped person under the
[Rehabilitation] Act is best suited to a `case by case determination.'
'' Rezza v. U.S. Dep't of Justice, No. 87-6732, 1988 WL 48541, at *2
(E.D. Pa. May 16, 1988) quoting Forrisi v. Brown, 794 F.2d 931, 933
(4th Cir. 1994). ``It is the impaired individual who must be examined
not just the impairment in the abstract.'' E.E. Black, Ltd. v.
Marshall, 497 F. Supp. 1088, 1099 (D. Haw. 1980) (determining whether a
disability is a qualifying handicap under the Rehabilitation Act
requires a case-by-case analysis). Originally, Section 504 of the
Rehabilitation Act used the phrase ``handicap'' rather than
``disability''; otherwise, however, the two acts are identical. In
1992, the Rehabilitation Act was amended to make identical the
standards for determining violations of the Rehabilitation Act and the
ADA.
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As a result, the functional approach to defining disability has
resulted in similar impairments producing different determinations as
to whether the impairment constituted a disability under the specific
facts before the court. This is true, of course, under both the
Rehabilitation Act and the ADA. The result naturally flows because two
individuals with the same condition may be affected very differently by
the condition, and the gravity of the effects of the condition may
differ, leaving one individual substantially limited in performing a
major life activity, while another individual with the same condition
may not have any limitations.
The following determinations under the Rehabilitation Act
illustrate this concept. In Diaz v. United States Postal Service,\34\
an employee with chronic back problems was determined not to have a
disability under the Rehabilitation Act, because the impairment did not
substantially limit major life activities (specifically, manual tasks
associated with employment). Whereas, in Schuett Investment Co. v.
Anderson,\35\ an individual who suffered a back injury that
substantially limited the individual's ability to perform manual tasks
was found to have a disability under the Rehabilitation Act. Similarly,
courts that have considered whether impaired vision is a disability
have focused on the extent of the impairment, as well as the impact of
the impairment on the individual in its corrected state. Courts reach
different results depending on the facts of the particular case. Thus,
in one case it was held that a person who had, at best, combined visual
acuity of 20/100 with the use of conventional corrective lenses was
determined to have a disability.\36\ On the other hand, an individual
whose uncorrected vision was below the minimum level set for a police
officer, but whose vision was correctable to 20/20, was held not to
have a disability.\37\ When considering whether cerebral palsy rendered
an individual substantially limited in a major life activity, courts
have also reached different results depending on the severity of the
condition and its impact on the life of the particular individual.\38\
Thus, prior to the ADA's passage, under the Rehabilitation Act, the
same medical condition, depending on its impact on the individual, led
to one individual being covered under the Rehabilitation Act, while
another was not.
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\34\ 658 F. Supp. 484 (E.D. Cal. 1987).
\35\ 386 N.W.2d 249 (Minn. App. 1986).
\36\ Sharon v. Larson, 650 F. Supp. 1396 (E.D. Pa. 1986).
\37\ Padilla v. Topeka, 708 P.2d 543 (Kan. 1985) (myopic applicant
for police officer position was not handicapped under the
Rehabilitation Act).
\38\ Compare Pridemore v. Rural Legal Aid Soc., 625 F. Supp. 1180
(S.D. Ohio 1985) (individual with cerebral palsy does not have a
disability under the Rehabilitation Act when the impairment had little
outward manifestation and no apparent substantial limitation on any
major life activity); with Fitzgerald v. Green Valley Area Educ.
Agency, 589 F. Supp. 1130 (S.D. Iowa 1984) (individual with cerebral
palsy and left-side hemipelia was substantially limited in a major life
activity under the Rehabilitation Act).
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Under the ADA, courts have applied this individualized, functional
approach to the ADA. Thus, depending on the impact of the physical or
mental impairment, it may or may not constitute a disability under the
ADA. For example, in one case, a school custodian's recurrent
depression constituted a disability within the meaning of the ADA
because it substantially limited his ability to work and interact with
others. In another, a plant worker's long history of depression was not
a disability under the ADA because it had very little impact on her
ability to work and care for herself.\39\ Similarly, individuals with
arthritis,\40\ bipolar disorders,\41\ and epilepsy \42\ may or may not
have a disability under the ADA, depending on the nature and extent
their particular impairments impact their lives.
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\39\ Compare Anderson v. Indep. Sch. Dist. No. 281, No. 01-560,
2002 WL 31242212 (D. Minn. 2002) (individual with depression considered
disabled under the ADA); with Cooper v. Olin Corp., 246 F.3d 1083 (8th
Cir. 2001) (individual with depression not considered disabled under
the ADA).
\40\ Compare Bearshield v. John Morrell & Co., 570 N.W.2d 915 (Iowa
1997) (individual with degenerative arthritis was not disabled because
impairment had little impact on individual's life or ability to
function); with Barnes v. Northwest Iowa Health Ctr., 238 F. Supp. 2d
1053 (N.D. Iowa 2002) (particular individual's rheumatoid arthritis a
disability under ADA).
\41\ Compare Reed v. Lepafe Bakeries, Inc., 102 F. Supp. 2d 33 (D.
Me. 2000), aff 'd 244 F.3d 254 (1st Cir. 2001) (individual with bipolar
disorder was disabled under the ADA); and Carrozza v. Howard County,
No. 94-1593, 1995 WL 8033 (4th Cir. Jan. 10, 1995) (individual with
bipolar disorder was disabled under ADA as a major life activity was
substantially impacted by this impairment); with Horwitz v. L & J.G.
Stickley, Inc., 122 F. Supp. 2d 350 (N.D.N.Y. 2000) (individual's
bipolar disorder did not constitute disability under ADA).
\42\ Compare Granzow v. Eagle Food Ctrs. Inc., 27 F. Supp. 2d 1105
(N.D. Ill. 1998) (individual's epilepsy was disability as it
substantially limited her various major life activities); with EEOC v.
Sara Lee Corp., 237 F.3d 349 (4th Cir. 2001) (individual with epilepsy
did not present evidence sufficient to establish ADA coverage).
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Finally, currently under the ADA, a plaintiff bears the burden to
prove that he or she is a member of the protected class covered by that
statute. The ADA incorporates the procedures of title VII.\43\ As a
matter of logic and fairness, it has been interpreted as incorporating
title VII's standards of proof.\44\
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\43\ See 42 U.S.C. Sec. 12117(a) (``The powers, remedies, and
procedures set forth in sections 2000e-4, 2000e-5, 2000e-6, 2000e-8,
and 2000e-9 of this title shall be the powers, remedies, and procedures
this subchapter provides to the Commission, to the Attorney General, or
to any person alleging discrimination on the basis of disability in
violation of any provision of this chapter, or regulations promulgated
under section 12116 of this title, concerning employment.'').
\44\ See, e.g., Raytheon Co. v. Hernandez, 540 U.S. 44, 50 n.3
(2003) (stating ``[t]he Courts of Appeals have consistently utilized .
. . [the McDonnell Douglas burden-shifting] approach when reviewing
motions for summary judgment in disparate-treatment cases'' and citing
Pugh v. Attica, 259 F.3d 619, 626 (7th Cir. 2001) (applying burden-
shifting approach to ADA disparate-treatment claim)). See also 42
U.S.C. Sec. 12113(a) (setting forth defenses under the ADA and not
including defense that plaintiff is not a ``qualified individual'').
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s. 1881 goes far beyond the ada's original purpose and language
When introduced on July 26, 2007, S. 1881 was described as a
``modest, reasonable legislative fix . . . so that people who Congress
originally intended to be protected from discrimination are covered
under the ADA.'' \45\ Instead, Senate Bill 1881 significantly expands
the original language and intent of the ADA. It does not merely clarify
the ADA, and it does not revise it to reflect Congress's or President
George H.W. Bush's original intent underlying its passage in 1990. S.
1881 amends the ADA as described below.
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\45\ Cong. Rec. S10152 (daily ed. July 26, 2007) (statement of Rep.
Harkin).
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First, S. 1881 expands the ADA's definition of disability by
eliminating the requirement that the medical condition substantially
impact one of the individual's major life activities. Without this
original language, the ADA would deem a physical or mental impairment
to be a ``per se disability'' without reference to the medical
condition's effect on the person. As such, S. 1881 replaces the ADA's
functional approach to defining a disability and replaces it with a per
se approach that was rejected at the time of the ADA's passage, and
that contravenes the definition of disability under the Rehabilitation
Act as well.
S. 1881 notes that one of the principal cases that has motivated
its sponsors to propose amending the ADA is the Supreme Court's
decision in Toyota Motor Mfg., Kentucky, Inc. v. Williams.\46\ In
Toyota, the question posed to the U.S. Supreme Court was whether the
plaintiff 's carpal tunnel syndrome and tendonitis were disabilities
under the ADA. Importantly, there was no dispute that the plaintiff 's
carpal tunnel syndrome and tendonitis were physical impairments.\47\
The issue before the Supreme Court was whether these impairments
substantially limited the major life activity of performing manual
tasks. Justice O'Connor, writing for a unanimous court, found that the
term ``major life activity'' ``refers to those activities that are of
central importance to daily life.'' \48\ The court noted that those
impairments that only affect a major life activity in a ``minor way''
do not rise to the level of a disability. The court emphasized the need
for individualized assessment of the effect of the impairment on each
individual.\49\ Justice O'Connor held that it was insufficient to
merely submit a medical diagnosis of impairment; rather, the individual
must offer evidence of the impairment's impact on his or her own daily
life activities.\50\
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\46\ 534 U.S. 184 (2002).
\47\ Id. at 196.
\48\ Id. at 187.
\49\ Id. at 199.
\50\ Id. at 198.
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The Toyota case involved an individual who was injured at work and
who alleged that she could not perform a job that required her, as part
of a vehicle inspection process, to physically wipe painted car
surfaces that were at or above shoulder level for significant periods
of time.\51\ The individual had already been awarded workers'
compensation and, without dispute, had previously been accommodated on
several occasions by Toyota in various ways to allow her to continue
working. While individuals may take issue with the Supreme Court's
unanimous ruling, there is an important lesson in the facts of the
case.
---------------------------------------------------------------------------
\51\ Id. at 189.
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Simply stated, if Congress enacts S. 1881 it should be prepared for
the Federal courts to be inundated with tens of thousands of cases, if
not more, filed by workers' compensation attorneys on behalf of
individuals with minor work-related injuries that have no long-term or
significant impact on their clients' daily life activities.\52\ Why
would they do so? Because the ADA provides for attorneys' fees and
compensatory and punitive damages to successful plaintiffs. From an
employment attorney's standpoint, enactment of S. 1881 and the cascade
of likely litigation that would follow would be a boon for business.
Perhaps the more troubling concern is that these amendments will have
the effect of diluting the definition of disability to such an extent
that persons who are truly disabled, such as those who are deaf or
blind or unable to walk, will find themselves in a long line of
plaintiffs.
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\52\ Similarly, the EEOC, given the ADA's charge-filing
prerequisite to bringing suit in court, will also be inundated with
charges of violations by individuals who would qualify as disabled
under S. 1881's definition. With scarce resources, the EEOC would also
be forced to spend considerably more time simply administratively
managing the many new charges from individuals who have no substantial
limitation on a major life activity.
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Similarly, employers would be forced to implement workplace
accommodations for people with tennis elbow who may need an arm
support, for people with ingrown fingernails who request dictation
software to avoid irritating their fingers while typing, to people with
sprained ankles who request mobility assistance. With limited
resources, employers may be faced with deciding whether to provide sign
language interpreters for deaf employees at company meetings or special
chairs or other mechanical devices to people with sore backs, tennis
elbow, or sprained wrists. These are decisions that employers should
not be required to make. Nor do they benefit the people whom the ADA is
truly intended to protect.\53\
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\53\ Also, if employers are required to accommodate all of these
minor impairments at what point do the sum total of the accommodations
become an undue hardship, especially for small businesses?
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Who among us doesn't have some physical or mental impairment? Are
all of us in this room individuals whom the ADA was intended to protect
and bring into the mainstream of society? If so, what will be the
impact on those individuals with disabilities that are substantial, who
are competing for limited company resources and accommodations with
others whose impairments are also covered under S. 1881's definition?
Can an employer prefer one employee's request over another because of
the perception that the request is ``more justified'' because of the
nature of the ``impairment,'' or because the employee makes the request
first (so that the employee who sprained her ankle at the basketball
game 2 weeks ago whose doctor has requested that she be provided a
handicap parking space gets the space in lieu of a newly-hired employee
who uses a wheelchair)?
Proponents of S. 1881 point to a number of cases in which
individuals with certain impairments were determined to have a
disability under the Rehabilitation Act, while other individuals with
similar impairments were determined not to have a disability under the
ADA, as support for their position that the ADA must be amended to
ensure that all individuals with those impairments are covered by the
ADA. As explained below, their analysis does not justify the definition
of disability contained in S. 1881, as their analysis is faulty and
misplaced, and does not support adopting any ``mental or physical
impairment'' as the definition of disability under the ADA.
Proponents of S. 1881 have argued that individuals with
intellectual and developmental disabilities are not covered by the ADA,
citing Littleton v. Wal-Mart Stores.\54\ This mischaracterizes the
Littleton court's holding. The court did not hold that a plaintiff with
intellectual and developmental disabilities could not be disabled under
the ADA. The plaintiff in Littleton claimed that, because of his mental
condition, he was substantially impaired in the major life activities
of working, learning, thinking, and communicating. However, the
plaintiff testified that there were no jobs that he could not perform,
that he had graduated from high school and attended a technical
college, and that he could read. Further, the plaintiff did not proffer
any evidence to show that he was unable to think or communicate.
Accordingly, the court held that the plaintiff 's mental impairment did
not limit any major life activities.
---------------------------------------------------------------------------
\54\ 231 Fed. Appx. 874 (11th Cir. 2007).
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This holding is not a blanket denial of coverage for mental
disabilities under the ADA, as the proponents of S. 1881 suggest. In
fact, courts have consistently held that where a mental condition
substantially limits major life activities, a plaintiff is covered
under the ADA.\55\ Proponents of S. 1881 have similarly
mischaracterized the ADA's coverage of individuals with diabetes,
noting that diabetics are not covered under the ADA. Again, this
blanket statement is without merit. Courts have consistently held that
an individual with diabetes is disabled under the ADA where the
condition substantially limits a major life function of the
individual.\56\
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\55\ See E.E.O.C. v. Dollar Gen. Corp., 252 F. Supp. 2d 277, 284-85
(N.D. N.C. 2003) (holding that mentally retarded plaintiff with a
mental impairment that substantially limited one or more of her major
life activities was disabled under the ADA); McAlindin v. County of San
Diego, 192 F.3d 1226, 1236 (9th Cir. 1999) (reversing grant of summary
judgment, and holding that a genuine issue of material fact existed as
to whether plaintiff 's anxiety disorder substantially limited a major
life activity).
\56\ See Lawson v. CSX Transp. Inc., 245 F.3d 916, 923 (7th Cir.
2001) (``we have no difficulty in determining that Mr. Lawson's
insulin-dependent diabetes . . . [is] a physical impairment under the
act'' and that it impair[s] major life activities); Lutz v. Glendale
Union High Sch., Dist. 205, 8 Fed. Appx. 720, 722 (9th Cir. 2001)
(reversing summary judgment for plaintiff and holding there was a
triable issue as to whether plaintiff 's diabetes substantially limited
major life activity); Nawrot v. CPC Int'l, 277 F. 3d 896, 905 (7th Cir.
2002) (``we are convinced that Nawrot has sufficiently demonstrated
that his diabetes substantially limits his . . . major life
activities.'').
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The court in Nawrot noted the importance of assessing individuals'
physical impairments on a case-by-case basis under the ADA. The court
stated that having diabetes was not per se dispositive of whether or
not someone is disabled under the ADA; the answer to that question
depends on the severity of the impairment. The court acknowledged what
courts have acknowledged since the passage of the Rehabilitation Act--
that individuals with identical mental and physical impairments may or
may not be disabled depending on the impact of the condition on their
ability to perform major life activities. For example, while analyzing
a claim under the Rehabilitation Act, the court in Elstner v.
Southwestern Bell Tel. Co.\57\ stated that courts must consider the
effects of impairments on individuals. ``The inquiry is, of necessity,
an individualized one--whether the particular impairment constitutes
for the particular person a significant barrier to employment.'' \58\
Furthermore, the court in Forrisi v. Bowen,\59\ cautioned against the
very outcome that the proponents of S. 1881 are advocating. The court
noted that defining a disability cannot be accomplished through
``abstract lists and categories of impairments.'' As the Court of
Appeals explained:
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\57\ 659 F. Supp. 1328, 1342 (S.D. Tex. 1987).
\58\ Id. at 1342.
\59\ 794 F.2d 931, 933-34 (4th Cir. 1986).
The Rehabilitation Act assures that truly disabled, but
genuinely capable, individuals will not face discrimination in
employment because of stereotypes about the insurmountability
of their handicaps. It would debase this high purpose if the
statutory protections available to those truly handicapped
could be claimed by anyone whose disability was minor and whose
relative severity of impairment was widely shared. Indeed, the
very concept of an impairment implies a characteristic that is
not commonplace and that poses, for the particular individual,
a more general disadvantage in his or her search for
satisfactory employment.\60\
---------------------------------------------------------------------------
\60\ Id. at 931 (emphasis added).
For all of these reasons, we urge the committee to reject S. 1881's
definition of disability as defined by any mental or physical
impairment of any type.
Second, contrary to S. 1881, mitigating measures should be
considered in determining whether an individual has a disability under
the ADA. The impact of mitigating measures on the definition of
disability under the ADA has been controversial since the ADA's
enactment. In Sutton v. United Air Lines\61\ the U.S. Supreme Court
held that if a person takes steps ``to correct for, or mitigate, a
physical or mental impairment, the effects of those measures--both
positive and negative--must be taken into account when judging whether
that person is `substantially' limited in a `major life activity.' ''
Importantly, the Supreme Court's holding emphasizes that both the
positive and negative effects of any mitigating measures must be taken
into account when analyzing a person's potential disability.
Accordingly, while the benefits of using medication or an adaptive
device are to be considered in determining ADA coverage, so too are any
side effects or negative ramifications. While subject to criticism,
this common sense approach is preferable when considering the
alternative.
---------------------------------------------------------------------------
\61\ 527 U.S. 471, 482-83 (1999).
---------------------------------------------------------------------------
If the statute were changed to bar consideration of mitigating
measures, every person who at any time in his or her life has had
uncorrected vision of less than 20/20 would have a disability. All of
us who wear glasses or contact lenses would be covered. Individuals who
had previously been near-sighted but who had the problem corrected by
laser surgery would be covered because they have a history of an
impairment. Even individuals who do not need glasses or corrective
devices, but whose vision is impaired because they have less then 20/20
uncorrected vision, would be covered.\62\ By removing this criteria, S.
1881 would open a ``Pandora's Box'' of claims by people who do not have
a disability under any rational interpretation of that term.
---------------------------------------------------------------------------
\62\ Although estimates vary, there are approximately 10 million
blind and visually impaired people in the United States. American
Foundation for the Blind, Blindness Statistics, http://www.afb.org/
Section.asp?SectionID=15 (last visited Nov. 13, 2007). By contrast,
approximately 78 percent of adults in the United States utilize some
form of vision correction device: 67 percent wear prescription glasses;
16 percent wear contact lenses; and 10 percent wear non-
prescription (i.e., reading) glasses. The Vision Care Institute of
Johnson & Johnson Vision Care, Inc., Americans Are out of Focus on
Proper Vision Care, Sept. 12, 2006, available at http://
www.harrisinteractive.com/news/newsletters/clientnews/
2006_JohnsonJohnsonVisionCare.pdf.
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The problems, however, do not end there. If mitigating measures are
not to be considered, how would an employer accommodate an individual
whose impairment was correctable by medication, such as hearing loss,
hay fever, or asthma, but who refused physician recommended medications
or devices? Today, courts would find that individual not protected
under the ADA.\63\ However, under S. 1881, such individuals would
clearly be covered. Employers would be forced to accommodate employees
whose impairments could be readily corrected by medication, but who
choose not to correct them for personal reasons. Similarly, people who
choose not to wear glasses for vanity reasons would have to be
accommodated.
---------------------------------------------------------------------------
\63\ Nancy Lee Jones, CRS Report for Congress, The Americans with
Disabilities Act (ADA): Statutory Language and Recent Issues, 7
(Congressional Research Service 2007).
---------------------------------------------------------------------------
Today we have heard legitimate concerns and issues relating to
individuals with diabetes. Many of us are aware of the decision in Orr
v. Wal-Mart Stores,\64\ where Mr. Orr was found not to have a
disability because it was determined that his diabetes did not
substantially affect a major life activity. In numerous other cases,
however, individuals with diabetes have been found to have a disability
under the ADA. For example, in Lawson v. CSX Transportation Inc.,\65\
cited by the dissent in Orr, the Seventh Circuit Court of Appeals found
that the diabetic plaintiff was substantially limited in the major life
activity of ``eating.'' The court reasoned that the plaintiff ``must
always concern himself with the availability of food, the timing of
when he eats and the type and quantity of food he eats.'' \66\ The
court went on to hold that ``[t]he district court failed to consider
the extent of the restrictions imposed by Mr. Lawson's treatment
regimen and the consequences of noncompliance with that regimen.'' \67\
Ironically, Mr. Orr was precluded by the Eighth Circuit panel, over the
objection of dissenting Judge Lay, from raising these issues because he
had not pled that he was limited in the major life activity of eating
in his original complaint.\68\ This is a procedural or evidentiary
issue unique to that case, not a problem with the ADA itself.
---------------------------------------------------------------------------
\64\ 297 F.3d 720, 724 (8th Cir. 2002).
\65\ 245 F.3d 916, 923-24 (7th Cir. 2001).
\66\ Id. at 924.
\67\ Id.
\68\ 297 F.3d at 725.
---------------------------------------------------------------------------
Other cases are also illustrative. In Nawrot,\69\ the court found
that the plaintiff had demonstrated that his diabetes substantially
limited ``his ability to think and care for himself,'' which are both
major life activities. In that case, the plaintiff injected himself
with insulin approximately three times a day and tested his blood sugar
at least 10 times a day.\70\ Even taking these mitigating measures into
account, which the court noted were themselves a ``substantial
burden,'' did not remedy all of the adverse effects of his
diabetes.\71\ Despite his medication Mr. Nawrot still suffered from
``unpredictable hypoglycemic episodes'' and during such episodes ``his
ability to express coherent thoughts [was] significantly impaired.''
\72\ For these and other reasons, Mr. Nawrot was found to be covered
under the ADA.\73\
---------------------------------------------------------------------------
\69\ 277 F.3d 896, 905 (7th Cir. 2002).
\70\ Id. at 901.
\71\ Id. at 904.
\72\ Id. at 905.
\73\ See also, e.g., Rodriguez v. ConAgra Grocery Products Co., 436
F.3d 468, 480-81 (5th Cir. 2006).
---------------------------------------------------------------------------
In Sutton v. United Air Lines, the Supreme Court also cited
Congress's finding in the plain language of the ADA (there were
approximately 43 million Americans with one or more disabilities) as
established that those whose impairments are largely corrected by
medication or other devices do not have a disability within the meaning
of the ADA.\74\ As Justice Ginsburg pointed out in her concurring
opinion, the congressional finding that 43 million people had
disabilities indicated that such persons ``are a discrete and insular
minority'' that have been ``subject to a history of purposeful unequal
treatment and relegated to a position of political powerlessness.''
\75\ The Supreme Court further noted that the finding that 43 million
Americans had disabilities reinforced the fact that Congress adopted a
``functional'' instead of a ``nonfunctional'' approach for the
definition of disability.\76\ Indeed, the Supreme Court noted that if a
``nonfunctional'' approach were used, allowing any health condition
that impairs health or normal functions of an individual were all that
was necessary to establish protection, there would be some ``160
million'' Americans with disabilities.\77\ In short, the Supreme Court
recognized the imperative of individualized inquiry into the impact of
an impairment on each individual in determining coverage under the ADA.
In contrast, S. 1881 would label all people with a particular condition
as disabled irrespective of whether the condition even impairs, let
alone substantially limits, any major life activity.
---------------------------------------------------------------------------
\74\ 527 U.S. at 484-86.
\75\ Id. at 494 (Ginsburg, J., concurring).
\76\ Id. at 486-87.
\77\ Id. at 487.
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Third, in a clear departure from the current statutory scheme, S.
1881 shifts the burden of proof to the employer to demonstrate that an
individual alleging discrimination ``is not a qualified individual with
a disability.'' \78\ Indisputably, the protected class currently
covered by the ADA includes ``qualified individual[s] with a
disability'' \79\--disabled individuals who, with or without reasonable
accommodation, can perform essential job functions.\80\ This inquiry
involves two steps: (1) a determination of whether the individual
``satisfies the requisite skill, experience, education and other job-
related requirements'' of the position; and (2) a determination of
whether the individual ``can perform the essential functions of the
position'' ``with or without accommodation.'' \81\
---------------------------------------------------------------------------
\78\ See S. 1881 Sec. 7.
\79\ See 42 U.S.C. Sec. 12112(a).
\80\ 42 U.S.C. Sec. 12111(8).
\81\ 29 CFR Sec. 1630.2(m).
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The calculated balancing of the rights and obligations between
disabled employees and employers is clear from the ADA's legislative
history.\82\ In accepting the House version of the definition, the
Conference Committee rejected a Senate amendment that would have
created a presumption favoring the employer's determination of
essential functions.\83\ In so doing, the Conference Committee noted
that the adopted language was ``not meant to change the current burden
of proof.'' \84\ Thus, the plaintiff continues to bear the burden of
proving he or she is ``qualified'' under the act.\85\ As a practical
matter, that means employees with disabilities need only prove they are
qualified, with or without accommodation, to perform the important
parts of their jobs.
---------------------------------------------------------------------------
\82\ See H.R. Rep. No. 101-485 (1990); S. Rep. No. 101-16 (1989).
\83\ H.R. Rep. No. 101-485, at 33 (1990).
\84\ Id. at 34.
\85\ 1 Perritt, Jr., Americans with Disabilities Act Handbook,
Sec. 3.06 at 115.
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Moreover, this compromise is rooted in the statutory scheme which
circumscribes an employer's ability to ask an employee whether or not
he or she has a disability, or about the ``nature or severity of such
disability.'' \86\ Plainly, individuals possess and control
confidential information about their own health that others do not, and
to which others do not have access under the law. For this reason,
employees are far better positioned than employers--who lack such
information--to demonstrate that they are qualified individuals despite
their medical conditions and/or limitations due to such conditions.
Simply put, it would be unfair and impracticable to circumscribe
employers from inquiries about medical conditions--as the law does--and
at the same time impose on employers the burden of proving that a
plaintiff is not a qualified individual under the ADA, as S. 1881 would
do.
---------------------------------------------------------------------------
\86\ 29 CFR Sec. 1630.13. The statute does permit wide-ranging
post-offer, pre-employment inquiries and examinations of applicants. 29
CFR Sec. 1630.14. However, employment decisions based on the results of
such inquiries or examinations must be ``job-related and consistent
with business necessity,'' 29 CFR ``1630.14(b), a stringent standard by
all accounts. More importantly, as to current employees, Congress
limited an employer's ability to ask about medical conditions based on
the premise that someone currently performing a job is medically able
to do so. EEOC Enforcement Guidance on Disability-Related Inquiries and
Medical Examinations of Employees under the Americans with Disabilities
Act No. 915.002 (2000).
---------------------------------------------------------------------------
S. 1881's attempted reversal of Congress's allocation of the burden
of proof contravenes the fundamental tenet of law disfavoring proof of
a negative proposition.\87\ Requiring employers to bear the burden in
litigation of disproving that an employee is qualified to perform a
particular job would lead to a host of practical problems--and absurd
litigation results--before and at trial. For example, whether an
individual is ``qualified'' must be determined at the time of the
employment action in question. By the time of litigation and/or trial,
assuming an employee fails to share certain relevant information with
an employer at the time of the challenged action, that critical
information may no longer be available, which would unfairly prevent
the employer from meeting its burden in litigation.
---------------------------------------------------------------------------
\87\ 2 McCormick on Evidence 474-75 (Kenneth S. Broun, et al.,
eds., 6th ed. 2006); Walker v. Carpenter, 57 S.E. 461 (N.C. 1907)
(``The first rule laid down in the books on evidence is to the effect
that the issue must be proved by the party who states an affirmative,
not by the party who states a negative.'').
---------------------------------------------------------------------------
Significantly, if S. 1881 is enacted, it would not only reverse the
ADA and its carefully crafted compromises, but it would also become the
only Federal employment discrimination statute to shift the burden on
this element--that is, a plaintiff 's membership in the protected
class--to employers.\88\ Although individuals with disabilities are
doubtless deserving of protection under Federal law, it seems a
disservice to those individuals and members of other protected classes
to give the ADA plaintiff in effect ``most-favored-nation'' status.
Proponents of S. 1881 point out that title VII plaintiffs need not
prove they are members of a protected class; for example, there is
never a dispute that an African-American plaintiff is covered by title
VII. But that is because title VII protects everyone, blacks and
whites, men and women. Like the Age Discrimination in Employment Act,
the ADA is different. As explained previously, it was irrefutably
intended to cover a limited universe of Americans. Moreover, unlike
virtually all other employment discrimination statutes, the ADA imposes
certain affirmative obligations on employers. Those obligations result
in preferences that only people with disabilities are entitled to
receive.\89\
---------------------------------------------------------------------------
\88\ See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)
(Plaintiff bears burden as part of prima facie case to show he is a
member of the protected class); Raytheon Co., 540 U.S. at 50, n.3.
\89\ U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 397 (2002)
(``Yet, the Act, U.S. Airways says, seeks only `equal' treatment for
those with disabilities. . . . While linguistically logical, this
argument fails to recognize what the act specifies, namely that
preferences will sometimes prove necessary to achieve the act's basic
equal opportunity goal. The act requires preferences in the form of
`reasonable accommodations' that are needed for those with disabilities
to obtain the same workplace opportunities that those without
disabilities automatically enjoy. By definition any special
`accommodation' requires the employer to treat an employee with a
disability differently, i.e., preferentially.'' (emphasis in original.)
---------------------------------------------------------------------------
conclusion
In conclusion, serious concerns exist with respect to the Americans
With Disabilities Act Restoration Act of 2007. Mr. Chairman and members
of the committee, I thank you for the opportunity to share some of
those concerns with you today. Please do not hesitate to contact me if
I can be of further assistance in this matter.
Senator Harkin. Ms. Olson, thank you again very much for
being here and I guess I could say, quite frankly, giving the
opposing view on the legislation. I'll have more to ask
questions about at the end here.
Opening Statement of Senator Murray
Senator Murray. Mr. Chairman. I apologize, I'm going to
have another issue that I have to be at in just a few minutes.
If I could just say before I leave, I really want to thank
you for having this really critical hearing on the effect of
the court decisions, and what we need to be doing. As you know,
I grew up in a household with my father in a wheelchair most of
my life, he had multiple sclerosis. I so well remember not
leaving to go anywhere unless we called to find out what the
parking was like, whether there were curbs, how the doors
opened, what the bathrooms were like whether a table was going
to be there, I mean, it literally meant that my dad was
housebound so many times.
The ADA made a huge difference in my family's life, and I
just know that if my father was still alive today and he was
hearing of the challenges of so many people today, he would not
want to go back to where we were when I was growing up, so this
is really a critical issue.
Let me just point out that, as a member of the Justice
Committee, I fought very hard to make sure that we recognize
the high number of men and women who are coming home today with
mental health problems, Post-Traumatic Stress Syndrome, TBI--I
am deeply concerned that unless we do make some changes in this
law, that we're going to impact the very men and women who have
gone to fight for us, and who are coming home as our warriors,
and are going to be impacted by the restrictions of the court
decisions. I think that's critical.
I also would say that, as a member--as the Chair of the
Transportation Appropriations Committee, I'm deeply concerned,
too, about some of the court decisions recently on the Federal
Motor Carrier Safety Administration's ability to regulate
commercial buses in making sure that people are able to get on
buses and that they follow up on what we expect them to do.
I would just like to let you know, despite the fact that I
have to leave, I'd like to submit some questions for the
record, I want to thank you so much for looking at this, and I
just urge all of us to remember that there are a lot of people
out there that depend on us to do the right thing, so that they
can be, to the fullest extent of themselves, an American who
gives something back.
I know that's what my Dad would have wanted, and I really
appreciate it.
[The prepared statement of Senator Murray follows:]
Prepared Statement of Senator Murray
Thank you, Mr. Chairman, for calling this hearing to
highlight the importance of restoring Congress' intent to
protect individuals with disabilities from discrimination.
Far too often, people with disabilities have been faced
with unfair obstacles in their workplaces and communities--
obstacles that Congress hoped would be overcome by the
enactment of the Americans with Disabilities Act 17 years ago.
Unfortunately, recent court decisions have watered-down the
protections that Congress intended to provide to these
individuals.
My father was disabled for much of his adult life. He had
Multiple Sclerosis and was confined to a wheelchair. If my dad
was here today--and faced discrimination in the workplace for
his disability--he might not be protected under the very law
meant to guard his rights because of the recent changes passed
down by the courts. That's just not right.
I continue to hear from people in my home State of
Washington who are concerned that the rights and protections
for people with disabilities are being diminished. They also
tell me that too many citizens in our State are suffering
because the system meant to empower them to live independent
lives is not receiving adequate support.
They have a right to be concerned. As thousands of wounded
warriors return home from Iraq and Afghanistan in need of
services, the President vetoed the spending bill that would
have funded many of these critical support programs.
For many years, my home State of Washington has provided
protection from discrimination to people with disabilities by
defining ``disability'' more broadly than the ADA. Last year,
the Supreme Court of Washington threatened this broad
protection by adopting the narrow definition of ``disability''
set forth in the ADA. Fortunately, the Washington State
legislature understood that by importing the ADA definition,
our State would inherit all of the problems that the ADA's
definition has caused. The legislature rejected the ADA
language and amended Washington's statutory definition of
disability to make it clear that our State protects all people
who are discriminated against based on disability.
Washington is a success story, but it is the exception, not
the rule. Many more States have adopted the language of the ADA
and therefore, provide little or no protection to those who
face disability discrimination. The time has come for the ADA
to lead and not follow--to make good on its promise of equality
to people with disabilities.
Mr. Chairman, today's hearing is about restoring the voice
and dignity of those who are discriminated against because of a
disability. I look forward to working with my colleagues in
this committee and across the isle to restore these
protections.
Senator Harkin. Senator Murray, thank you very much, and
thanks for being here, and thanks for being such a great member
of this committee, and I look forward to your help as we try to
move this legislation through.
Thank you very much.
Now we turn to Professor Chai Feldblum, Professor at
Georgetown University Law Center, here. Graduated from Harvard
Law School, served with Justice Harry Blackman on the U.S.
Supreme Court. I first met Professor Feldblum when she was one
of the lead lawyers working with the American Civil Liberties
Union on the ADA back in 1989 and 1990. She has written many,
many, many articles. I can't say I've read every one, but I've
read a lot of them, trying to keep up on the evolving law in
this area.
Again, welcome back to the committee.
I didn't say this at the beginning, and I want to make sure
it's clear on the record that all of your written statements
will be made a part of the record in their entirety.
Please, proceed.
STATEMENT OF PROFESSOR CHAI FELDBLUM, DIRECTOR, FEDERAL
LEGISLATION CLINIC AND PROFESSOR OF LAW, GEORGETOWN LAW CENTER,
WASHINGTON, DC.
Ms. Feldblum. Thank you, and I don't want to have you to
read all of those articles, so I'm also hoping to keep this in
my 5 minutes here.
Thank you, and I hope to demonstrate in my remarks how the
promise of the ADA has, in fact, not been kept, because the
courts have not followed congressional intent.
Let me also say, in case someone doesn't care about what
your intent was 17 years ago, because as you noted, Senator
Harkin, a lot of your colleagues weren't here. I hope to also
demonstrate in my remarks that the status quo is simply
unacceptable as a matter of sound public policy. Even
regardless of intent, one needs to restore the ADA.
First about intent. How has congressional intent been
undermined? First, in the case of Sutton v. United Airlines,
which you've heard about, the U.S. Supreme Court decided that a
court should take into account mitigating measures in deciding
whether someone has an impairment that, ``substantially limits
a major life activity,'' even though--as you've heard--every
committee report said, do not take mitigating measures into
effect.
Now, you've heard a lot about this case, but I want to draw
your attention to two sentences in the case. Justice O'Connor,
writing for the majority, was responding to the dissent's
concern that people with prosthetic limbs, or people who take
medicine for epilepsy or high blood pressure, might be excluded
based on the rule that the Court was announcing in that case
dealing with people wearing eyeglasses.
Here's how Justice O'Connor responded,
``Individuals who use prosthetic limbs may be mobile
and capable of functioning in society, but still be
disabled because of a substantial limitation on their
ability to walk or run. The same may be true of
individuals who take medicine to lessen the symptoms of
an impairment, but nevertheless remain substantially
limited.''
You know what? Justice O'Connor was exactly right.
If you come back from Iraq with an amputated leg, and
you're fitted with a prosthetic limb, like some of the people
Senator Murray and you mentioned, but you don't adapt very well
to that limb, and you are still substantially limited which, by
the way, under current case law means you were severely limited
in your ability to walk or run, you'll be covered under the
ADA.
If, God forbid, you are lucky enough to adapt well to your
prosthetic limb which, thankfully, hundreds of veterans are
being able to do, based on developments in technology, and you
walk and run just fine, but you are not hired because an
employer doesn't want someone with a prosthetic limb in the
workplace, you're not covered under the ADA.
Same goes for an impairment that can be treated with
medication. If you're unlucky enough to be the person that Ms.
Olson quotes in her written testimony, here's the quote,
``Despite his medication, Mr. Naras still suffered from
unpredictable hypoglycemic episodes,'' that is, if your
medication does not work particularly well, so you're still
substantially limited, you will probably pass the first hurdle
of the ADA and be considered disabled. And whether, of course,
you can then prove that you're qualified for the job is another
story, hence one of the Catch-22s.
If the medication for your epilepsy or diabetes or Post-
Traumatic Stress Disorder is working well, and you are not
substantially limited in any way, but you were fired from a job
because of that condition, or more likely, you were not
provided an accommodation for that condition, you're out of
luck.
Is this a logical way to protect those with disabilities
from employment discrimination? I think not.
Here's the second way in which congressional intent was
undermined. Under the Rehabilitation Act, a person was covered
under the ``regarded as'' prong of the definition of
handicapped, the third prong, if the person could prove that he
or she was not hired, or was fired from a particular job
because of that impairment. It didn't matter how minor or
temporary the impairment was, as long as the person could prove
it was the basis for discrimination.
All of the committee reports of the ADA noted that the same
coverage would apply under the ADA. In Sutton, the U.S. Supreme
Court blew a hole in the third prong. It announced a new rule,
that to establish coverage under the ``regarded as'' prong, an
individual had to prove, not only that the employer regarded
the person as limited in that one job the employer was
offering, but also thought that lots of other employers in a
broad range of jobs wouldn't hire that person, either. This
makes no sense as a matter of sound public policy.
S. 1881 remedies the misinterpretations of the ADA in the
Sutton case, and the stringent standard for coverage set forth
by the Court in a later case by deleting the requirement
``substantially limiting major life activity,'' and extending
coverage to those with physical or mental impairments, who
experience discrimination based on that impairment.
In conclusion, let me address the concerns raised by Ms.
Olson, both in her written testimony and here, that the
approach of S. 1881 will undermine the cause of people of
disabilities, because the law will no longer cover the ``truly
disabled'' only. Oh my God, all of us might be included.
You know what? This room is filled with people with
disabilities who want Congress to pass S. 1881. They don't
believe the bill sets back their cause. Why not? Because they
understand there is no set of the truly disabled, and then the
rest of us. We all exist along a spectrum of abilities. It is
true that many of us may never experience discrimination
because of our physical or mental impairments, but others of us
might.
This is not because some of us are truly disabled and
others of us are not. It is because of the types of
discrimination that some of us will suffer, and others of us
will not. There is no ``us'' and ``them.'' There is simply a
vision of equality and justice.
It's time for Congress to restore the ADA and have it
fulfill its true promise.
Thank you.
[The prepared statement of Ms. Feldblum follows:]
Prepared Statement of Chai R. Feldblum
Mr. Chairman and members of the committee, I am pleased to testify
before you today. My name is Chai Feldblum, and I am a Professor of Law
and Director of the Federal Legislation Clinic at Georgetown University
Law Center. The lawyers and students at the Federal Legislation Clinic
provide pro bono legislative lawyering services to the Epilepsy
Foundation in support of its efforts to advance the ADA Restoration
Act.
Today, however, I am testifying on my own behalf as an expert on
the Americans with Disabilities Act of 1990 (ADA). During passage of
the ADA, I served as one of the lead legal advisors to the disability
and civil rights communities in the drafting and negotiating of that
legislation.
In this testimony, I provide a brief overview of the bipartisan
support that propelled passage of the ADA in 1990 and describe how
Congress intended the ADA's definition of disability to be consistent
with the definition of ``handicap'' that had been applied by the courts
for 15 years under Sections 501, 503 and 504 of the Rehabilitation Act
of 1973. I then explain how the courts have narrowed the definition of
disability under the ADA in a manner that is inconsistent with
Congressional intent and I offer some observations on why the courts
may have acted in such a manner. Finally, I explain how the current
status quo should be considered unacceptable to any Congress that cares
about providing substantive and real protection for people with
disabilities and how the only way to fix this problem is to fix the
language of the ADA itself.
i. the bi-partisan enactment of the ada
A first version of the ADA was introduced in April 1988 by Senators
Lowell Weicker and Tom Harkin and 12 other cosponsors in the Senate,
and by Congressman Tony Coelho and 45 cosponsors in the House of
Representatives.\1\ This version of the ADA was based on a draft from
the National Council on Disability (NCD), an independent Federal agency
composed of 15 members appointed by President George H.W. Bush which
was established by Congress to advise the President and Congress on
issues concerning people with disabilities.\2\
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\1\ H.R. 4498, 100th Cong., 2d Sess., 134 Cong. Rec. H2757 (daily
ed. Apr. 29, 1988) (introduction of H.R. 4498); S. 2345, 100th Cong.,
2d Sess., 134 Cong. Rec. S5089 (daily ed. Apr. 28, 1988) (introduction
of S. 2345).
\2\ National Council on Disabilities, on the Threshold of
Independence (1988), available at http://www.ncd.gov/newsroom/
publications/1988/threshold.htm. Lowell Weicker, at that time, the
Republican Senator from Connecticut and the ranking minority member of
the Subcommittee on the Handicapped, was approached by the National
Council on Disability to take the lead on the ADA because of his
longstanding interest in the area of disability rights. Senator Tom
Harkin, a Democratic Senator from Iowa and Chairman of the Subcommittee
on the Handicapped, worked closely with Senator Weicker in this
endeavor. In the House of Representatives, Congressman Tony Coelho, a
Democrat from California and third-ranking member in the House
Democratic Leadership, was the key leader in the development of the
ADA.
---------------------------------------------------------------------------
In May 1989, a second version of the ADA was introduced by Senators
Tom Harkin, Edward Kennedy, Robert Dole, Orrin Hatch and 30 cosponsors
in the Senate, and by Congressman Steny Hoyer and 45 cosponsors in the
House of Representatives.\3\ This version of the bill was the result of
extensive discussions with a wide range of interested parties,
including members of the disability community, the business community,
and the first Bush administration.\4\
---------------------------------------------------------------------------
\3\ H.R. 2273, 101st Cong., 1st Sess., 135 Cong. Rec. H1791 (daily
ed. May 9, 1989); S. 933, 101st Cong., 1st Sess., 135 Cong. Rec. S4984-
98 (daily ed. May 9, 1989).
\4\ See Chai R. Feldblum, Medical Examinations and Inquiries Under
the Americans with Disabilities Act: A View from the Inside, 64 Temple
Law Review 521, 521-532 (1991) (providing a brief overview of passage
of the ADA, including a brief description of the various stages of
negotiation on the bill).
---------------------------------------------------------------------------
Negotiations on the ADA continued within each committee that
reviewed the bill and, in each case, the negotiations resulted in
broad, bipartisan support of the legislation. The Senate Committee on
Labor and Human Resources favorably reported the bill by a vote of 16-
0;\5\ the House Committee on Education and Labor favorably reported the
bill by a vote of 35-0;\6\ the House Committee on Energy and Commerce
favorably reported the bill by a vote of 40-3;\7\ the House Committee
on Public Works and Transportation favorably reported the bill by a
vote of 45-5;\8\ and the House Committee on the Judiciary favorably
reported the bill by a vote of 32-3.\9\
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\5\ S. Rep. No. 101-116 at 1 (1989).
\6\ H.R. Rep. No. 101-485, pt. 2, at 50 (1990).
\7\ H.R. Rep. No. 101-485, pt. 4, at 29 (1990).
\8\ H.R. Rep. No. 101-485, pt. 1, at 52 (1990).
\9\ H.R. Rep. No. 101-485, pt. 3, at 25 (1990).
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After being reported out of the various committees, the ADA passed
the Senate by a vote of 76-8 in September 1989 and the House of
Representatives by a vote of 403-20 in May 1990.\10\ Both Houses of
Congress subsequently passed the conference report by large margins as
well: 91-6 in the Senate and 377-28 in the House of
Representatives.\11\
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\10\ 135 Cong. Rec. S10803 (daily ed. Sept. 7, 1989); 136 Cong.
Rec. H2638 (daily ed. May 22, 1990).
\11\ 136 Cong. Rec. S9695 (daily ed. July 13, 1990); 136 Cong. Rec.
H4629 (daily ed. July 12, 1990).
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On July 26, 1990, President George H.W. Bush signed the ADA into
law, stating:
[N]ow I sign legislation which takes a sledgehammer to [a] .
. . wall, one which has for too many generations separated
Americans with disabilities from the freedom they could
glimpse, but could not grasp. Once again, we rejoice as this
barrier falls for claiming together we will not accept, we will
not excuse, we will not tolerate discrimination in America.''
\12\
---------------------------------------------------------------------------
\12\ Remarks of President George H.W. Bush at the Signing of the
Americans with Disabilities Act of 1990 (July 26, 1990), available at
http://www.eeoc.gov/ada/bushspeech.html.
Standing together, leaders from both parties described the ADA as
``historic,'' ``landmark,'' and an ``emancipation proclamation for
people with disabilities.'' \13\
---------------------------------------------------------------------------
\13\ According to President George H.W. Bush, the ADA was a
``landmark'' law, an ``historic new civil rights Act . . . the world's
first comprehensive declaration of equality for people with
disabilities.'' See id. Senator Orrin G. Hatch declared that the ADA
was ``historic legislation'' demonstrating that ``in this great country
of freedom, . . . we will go to the farthest lengths to make sure that
everyone has equality and that everyone has a chance in this society.''
Senator Edward M. Kennedy called the ADA a ``bill of rights'' and
``emancipation proclamation'' for people with disabilities. See
National Council on Disability, The Americans with Disabilities Act
Policy Brief Series: Righting the ADA, No. 1: Introductory Paper
(October 16, 2002), available at http://www.ncd.gov/newsroom/
publications/2002/rightingtheada.htm.
---------------------------------------------------------------------------
The purpose of the original legislation was to ``provide a clear
and comprehensive national mandate for the elimination of
discrimination'' on the basis of disability, and ``to provide clear,
strong, consistent, enforceable standards'' for addressing such
discrimination.\14\ It was Congress' hope and intention that people
with disabilities would be protected from discrimination in the same
manner as those who had experienced discrimination on the basis of
race, color, sex, national origin, religion, or age.\15\
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\14\ See Americans with Disabilities Act Sec. 2(b), 42 U.S.C.
Sec. 12101(b) (2007).
\15\ 42 U.S.C. Sec. 12101 (a), (b).
---------------------------------------------------------------------------
But that did not happen. 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 (PTSD), and many other impairments, are
routinely found not to be ``disabled'' and therefore not covered by the
ADA.
The difficulty with this scope of coverage under the ADA is
significant--studies show that plaintiffs lose 97 percent of ADA
employment discrimination claims, frequently on the grounds that they
do not meet the definition of ``disability.'' \16\ The National Council
on Disability has stated that Supreme Court decisions narrowing the
definition of disability ``ha[ve] significantly diminished the civil
rights of people with disabilities,'' ``blunt[ing] the Act's impact in
significant ways,'' and ``dramatic[ally] narrowing and weakening . . .
the protection provided by the ADA.'' \17\
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\16\ Amy L. Allbright, 2006 Employment Decisions Under the ADA
Title I--Survey Update, 31 Mental & Physical Disability L. Rep. 328,
328 (July/August 2007) (stating that in 2006, ``[o]f the 218
[employment discrimination] decisions that resolved the claim (and have
not yet changed on appeal), 97.2 percent resulted in employer wins and
2.8 percent in employee wins''); see also Amy L. Allbright, 2003
Employment Decisions Under the ADA Title I--Survey Update, 28 Mental &
Physical Disability L. Rep. 319, 319-20 (May/June 2003) (``One such
obstacle [for plaintiffs to overcome] is satisfying the requirements
that the plaintiff meet the ADA's restrictive definition of
disability--a physical or mental impairment that substantially limits a
major life activity, a record of such an impairment, or being regarded
as having such an impairment--and still be qualified to perform
essential job functions with or without reasonable accommodation. A
clear majority of the employer wins in this survey were due to
employees' failure to show that they had a protected disability.'' )
(emphasis added); see also Ruth Colker, Winning and Losing Under the
ADA, 62 Ohio St. L.J. 239, 246 (2001) (``[A]ppellate litigation
outcomes under the ADA are more pro-defendant than under other civil
rights statutes.'' ); Ruth Colker, The Americans with Disabilities Act:
A Windfall for Defendants, 34 Harv. C.R.-C.L. L. Rev. 99, 100-01
(``[C]ontrary to popular media accounts, defendants prevail in more
than 93 percent of reported ADA employment discrimination cases decided
on the merits at the trial court level. Of those cases that are
appealed, defendants prevail in 84 percent of reported cases. These
results are worse than results found in comparable areas of the law;
only prisoner rights cases fare as poorly.'' ).
\17\ National Council on Disabilities, Righting the ADA, pt. I
(2004), available at http://www.ncd.gov/newsroom/publications/2004/
righting_ada.htm.
---------------------------------------------------------------------------
As demonstrated by the legislative history of the ADA, Congress
never intended the law's definition to be interpreted in such a
restrictive fashion.
ii. congressional intent behind the ada's definition of disability
When writing the ADA that was introduced in 1989, Congress borrowed
the definition of ``disability'' from Sections 501, 503 and 504 of the
Rehabilitation Act of 1973, a predecessor civil rights statute for
people with disabilities that covered the Federal Government, Federal
contractors, and recipients of Federal financial assistance. For
purposes of Title V of the Rehabilitation Act, ``handicap'' was defined
as: (1) a physical or mental impairment that substantially limits one
or more of the major life activities of such individual; (2) a record
of such an impairment; or (3) being regarded as having such an
impairment.\18\
---------------------------------------------------------------------------
\18\ 29 U.S.C. Sec. 705(20)(B) (2007); see Americans with
Disabilities Act, 42 U.S.C. Sec. 12101(2) (2007). At the time the ADA
was being drafted, section 504 used the term ``handicap'' rather than
``disability.'' Section 504 has since been amended to use the term
``disability.'' The definition of ``handicap'' under section 504 and of
``disability'' under the ADA is identical.
---------------------------------------------------------------------------
For 15 years, the courts had interpreted this definition to cover a
wide range of physical and mental impairments, including epilepsy,
diabetes, intellectual and developmental disabilities, multiple
sclerosis, PTSD, and HIV infection.\19\ Indeed, in School Board of
Nassau County v. Arline, the Supreme Court explicitly acknowledged that
section 504's ``definition of handicap is broad,'' and that by
extending the definition to cover those ``regarded as'' handicapped,
Congress intended to cover those who are not limited by an actual
impairment but are instead limited by ``society's accumulated myths and
fears about disability and disease.'' \20\
---------------------------------------------------------------------------
\19\ See, e.g., Local 1812, Am. Fed'n. of Gov't Employees v. U.S.,
662 F. Supp. 50, 54 (D.D.C. 1987) (person with HIV disabled); Reynolds
v. Brock, 815 F.2d 571, 573 (9th Cir. 1987) (person with epilepsy
disabled); Flowers v. Webb, 575 F. Supp. 1450, 1456 (E.D.N.Y. 1983)
(person with intellectual and developmental disabilities disabled);
Schmidt v. Bell, No. 82-1758, 1983 WL 631, at *10 (E.D. Pa. Sept. 9,
1983) (person with PTSD disabled); Bentivegna v. U.S. Dep't of Labor,
694 F.2d 619, 621 (9th Cir. 1982) (person with diabetes disabled);
Pushkin v. Regents of Univ. of Colo., 658 F.2d 1372, 1376 (10th Cir.
1981) (person with multiple sclerosis disabled). See generally Chai R.
Feldblum, Definition of Disability Under Federal Anti-Discrimination
Law: What Happened? Why? And What Can We Do About It?, 21 Berkeley J.
Emp. & Lab. L. 91, 128 (2000) (hereinafter ``Definition of
Disability'') (``[A]lthough there had been . . . a few adverse judicial
opinions under section 504 that had rejected coverage for plaintiffs
with some impairments, those opinions were the exception, rather than
the rule, in litigation under the Rehabilitation Act.'' )
\20\ See School Bd. of Nassau County v. Arline, 480 U.S. 273, 284
(1987).
---------------------------------------------------------------------------
When the ADA was enacted, Congress consistently referred to court
interpretations of ``handicap'' under section 504 as its model for the
scope of ``disability'' under the ADA. For example, the Senate
Committee on Labor and Human Resources noted that:
``the analysis of the term `individual with handicaps' by the
Department of Health, Education and Welfare in the regulations
implementing section 504 . . . apply to the definition of the
term `disability' included in this legislation.'' \21\
---------------------------------------------------------------------------
\21\ S. Rep. No. 101-116 at 21 (1989).
---------------------------------------------------------------------------
Similarly, the House Committee on the Judiciary observed that:
``The ADA uses the same basic definition of `disability'
first used in the Rehabilitation Act of 1973 and in the Fair
Housing Amendments Act of 1988. . . . [I]t has worked well
since it was adopted in 1973.'' \22\
---------------------------------------------------------------------------
\22\ H.R. Rep. No. 101-485, pt. 3, at 27 (1990).
Second, the committee reports explicitly stated that mitigating
measures should not be taken into account in determining whether a
person has a ``disability'' for purposes of the ADA. As the Senate
---------------------------------------------------------------------------
Committee on Labor and Human Resources put it:
A person is considered an individual with a disability for
purposes of the first prong of the definition when the
individual's important life activities are restricted as to the
conditions, manner, or duration under which they can be
performed in comparison to most people. . . . [W]hether a
person has a disability should be assessed without regard to
the availability of mitigating measures, such as reasonable
accommodations or auxiliary aids.\23\
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\23\ S. Rep. No. 101-116 at 121 (1989).
Finally, the committee reports specifically referenced the breadth
of the interpretation offered by the Supreme Court in the Arline
decision with regard to the third prong of the definition of
disability, the ``regarded as'' prong. During oral argument in the
Arline case, the Solicitor General had sought to reject an
interpretation of the ``regarded as'' prong that would have established
coverage for any individual with an impairment, as long as the
impairment was proven by the individual to have been the basis of an
adverse decision. As the Solicitor General argued, such an approach
would allow plaintiffs to make ``a totally circular argument which
lifts itself by its bootstraps.'' \24\
---------------------------------------------------------------------------
\24\ Arline, 480 U.S. at 283 n.10 (1987).
---------------------------------------------------------------------------
But the Supreme Court had responded that ``[t]he argument is not
circular, however, but direct.'' \25\ As the Court explained:
---------------------------------------------------------------------------
\25\ Id.
``Congress plainly intended the Act to cover persons with a
physical or mental impairment (whether actual, past, or
perceived) that substantially limited one's ability to work.''
\26\
---------------------------------------------------------------------------
\26\ Id.
---------------------------------------------------------------------------
And, as the Court went on to explain:
``Such an impairment might not diminish a person's physical
or mental capabilities, but could nevertheless substantially
limit that person's ability to work as a result of the negative
reactions of others to the impairment.'' \27\
---------------------------------------------------------------------------
\27\ Id. at 283; see Feldblum, Definition of Disability, supra note
19, 116-118 for a full analysis of the Arline opinion.
That was the situation in the Arline case, where a school board
regarded an individual with tuberculosis that was no longer limiting
any of her major life activities as nonetheless limited in her one job
of being a schoolteacher.
The committee reports to the ADA endorsed this view of the third
prong of the definition. As the Senate Committee on Labor and Human
Resources Report summarized the coverage under the third prong:
``A person who is excluded from any activity covered under
this Act or is otherwise discriminated against because of a
covered entity's negative attitudes toward disability is being
treated as having a disability which affects a major life
activity. For example, if a public accommodation, such as a
restaurant, refused entry to a person with cerebral palsy
because of that person's physical appearance, that person would
be covered under the third prong of the definition. Similarly,
if an employer refuses to hire someone because of a fear of the
`negative reactions' of others to the individual, or because of
the employer's perception that the applicant had a disability
which prevented that person from working, that person would be
covered under the third prong.'' \28\
---------------------------------------------------------------------------
\28\ S. Rep. No. 101-116 at 24 (1989); see also H.R. Rep. No. 101-
485, pt. 2, at 53 (1990) (discussing Arline)
Because coverage under the third prong relies on a discriminatory
action by one entity (e.g., an employer or a business), the fact that
other entities may not hold the same adverse perception of the
individual with the actual or perceived impairment is irrelevant. As
---------------------------------------------------------------------------
the House Committee on the Judiciary Report put it:
``[A] person who is rejected from a job because of the myths,
fears and stereotypes associated with disabilities would be
covered under this third test, whether or not the employer's
perception was shared by others in the field, and whether or
not the person's physical or mental condition would be
considered a disability under the first or second part of the
definition.'' \29\
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\29\ H.R. Rep. No. 101-485, pt. 3, at 30 (1990).
As evident from the ADA's legislative history, Congress' decision
to adopt section 504's definition of disability was a deliberate
decision to cover the same wide group of individuals who had been
covered under that law. Congress expected that the definition of
``disability'' would be interpreted as broadly under the ADA as it had
been interpreted under the existing disability rights law for over 15
years.
Disability rights advocates like myself--blissfully unaware of what
the future would hold for the definition of disability--fully supported
Congress' incorporation of the section 504 definition into the ADA. We
agreed with Congress' legal judgment that the 15-year-old definition
would cover people with a wide range of physical and mental
impairments, based on the record in the case law under section 504. In
addition, we were particularly reassured by the reasoning of the
Supreme Court just 2 years earlier in the Arline case--the case so
consistently referred to in the various committee reports. Under the
Court's interpretation, the third prong of the definition was
sufficiently broad to capture any individual who had been explicitly
discriminated against because of an actual or perceived impairment,
regardless of how minor that impairment was if it existed (e.g., a
cosmetic disfigurement or a burn) or even if no impairment existed at
all.
We were soon to be rudely surprised by new interpretations of the
definition of disability by various courts, including the Supreme
Court.
iii. judicial narrowing of coverage under the ada
Over the past several years, the Supreme Court and lower courts
have narrowed coverage under the ADA by interpreting each and every
component of the ADA's definition of disability in a strict and
constrained fashion. This has resulted in the exclusion of many persons
that Congress intended to protect.\30\
---------------------------------------------------------------------------
\30\ See Appendix A for coverage of people under section 504 as
compared to the ADA; see Appendix B for case stories of people denied
coverage under the ADA.
---------------------------------------------------------------------------
The Supreme Court has narrowed coverage under the ADA in three
primary ways:
(A) In 1999, by requiring that courts take into account mitigating
measures when determining whether a person is ``substantially limited
in a major life activity'';
(B) Also in 1999, by requiring people who allege that they are
regarded as being substantially limited in the major life activity of
working (because an employer has refused to hire them for a job based
on an actual or perceived impairment) show that the discriminating
employer believed them incapable of performing not just the one job
they had been denied, but also a broad range of jobs; and
(C) In 2002, by requiring that the term ``substantially limited''
be applied in a very strict manner and that the term ``major life
activity'' be understood as covering only activities that are of
``central importance'' to most people's lives.
A. Mitigating Measures
The Supreme Court, in a trio of cases decided in June 1999, ruled
that mitigating measures--medication, prosthetics, hearing aids, other
auxiliary devices, diet and exercise, or any other treatment--must be
considered in determining whether an individual's impairment
substantially limits a major life activity.\31\
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\31\ 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).
---------------------------------------------------------------------------
Sutton v. United Airlines
In Sutton v. United Airlines, twin sisters, Karen Sutton and
Kimberly Hinton, applied to United Airlines for jobs as commercial
airline pilots. While they met United's age, education, and experience
requirements, and had obtained all the appropriate pilot
certifications, they did not meet United's minimum vision requirement
of uncorrected vision of 20/100 or better. Ms. Sutton and Ms. Hinton
were severely nearsighted (myopia), with uncorrected vision of 20/200
in the right eye and 20/400 in the left eye. But with glasses or
contact lenses, they could see as well as people without myopia. When
United terminated their job interviews and refused to offer them pilot
positions, Ms. Sutton and Ms. Hinton filed a claim under the ADA,
alleging that United had discriminated against them on the basis of
disability in violation of the ADA.\32\
---------------------------------------------------------------------------
\32\ Sutton, 527 U.S. at 475-76.
---------------------------------------------------------------------------
The Sutton case raised the question whether individuals who
mitigate their impairments should be considered persons with
disabilities under the ADA. The eight Federal Courts of Appeals that
had addressed this issue prior to the Sutton case had agreed with
guidance issued by the Equal Employment Opportunity Commission (EEOC)
and the Department of Justice (DOJ), which explicitly stated that the
mitigating effects of medication or devices on an impairment should not
be taken into account in determining whether an individual's impairment
substantially limits the individual in a major life activity.\33\ In
Sutton, however, the Tenth Circuit (affirming the district court)
concluded to the contrary, creating a split in the circuits. The
Supreme Court resolved this split by affirming the Tenth Circuit's
determination that mitigating measures should be taken into account in
determining disability under the ADA.\34\
---------------------------------------------------------------------------
\33\ Id. at 496-97 (Stevens, J., dissenting) (listing cases).
\34\ Id. at 477, 495-96.
---------------------------------------------------------------------------
Relying exclusively on a plain reading of the statute, the Supreme
Court reasoned that three provisions of the ADA required it to conclude
that plaintiffs should be viewed in their ``corrected state'' in
determining whether their impairments substantially limited their major
life activities. First, because ``the phrase `substantially limits'
appears in the Act in the present indicative verb form,'' it was proper
to read that language as ``requiring that a person be presently--not
potentially or hypothetically--substantially limited in order to
demonstrate a disability.'' \35\ Second, because the act defines
disability ``with respect to an individual'' and requires that an
impairment substantially limit ``the major life activities of such
individual,'' the Court concluded that the law necessarily requires an
``individualized inquiry.'' \36\ Indeed, the Court explained, the EEOC
had emphasized the need for such an individualized assessment, and yet
its ``directive that persons be judged in their uncorrected or
unmitigated state runs directly counter to the individualized inquiry
mandated by the ADA.'' \37\ Finally, since Congress had stated in its
findings that there were 43 million people with disabilities, it was
logically inconsistent to presume that Congress intended to cover the
100 million people estimated to have vision impairments. Thus, the
finding regarding the number of people covered under the law ``is
evidence that the ADA's coverage is restricted to only those whose
impairments are not mitigated by corrective measures.'' \38\
---------------------------------------------------------------------------
\35\ Id. at 482.
\36\ Id. at 483.
\37\ Id.
\38\ Id. at 487.
---------------------------------------------------------------------------
The Court concluded that the ``[EEOC's and DOJ's] guidelines--that
persons are to be evaluated in their hypothetical uncorrected state--is
an impermissible interpretation of the ADA.'' \39\ The fact that the
Senate Labor and Human Resources Committee Report, the House Judiciary
Committee Report, and the House Education and Labor Committee Report
had all offered the same interpretation as the agencies was irrelevant
to the Court based on the following reasoning: [b]ecause we decide
that, by its terms, the ADA cannot be read in this manner, we have no
reason to consider the ADA's legislative history.\40\
---------------------------------------------------------------------------
\39\ Id. at 482 (emphasis added).
\40\ Id.
---------------------------------------------------------------------------
Having concluded that three congressional committees, eight circuit
courts, and two agencies had impermissibly interpreted the ADA by not
considering mitigating measures, the Supreme Court held that Karen
Sutton and Kimberly Hinton were not substantially limited in any major
life activity and therefore were not covered by the ADA. Because Ms.
Sutton and Ms. Hinton were found not to be ``disabled,'' the Court
never reached the question whether they were qualified to perform the
job or whether United's vision requirement was discriminatory.\41\
---------------------------------------------------------------------------
\41\ Id. at 493-94.
---------------------------------------------------------------------------
Murphy v. United Parcel Service
In Murphy v. United Parcel Service, the United Parcel Service (UPS)
hired Vaughn L. Murphy as a mechanic. The job required Mr. Murphy to
drive commercial motor vehicles. According to Department of
Transportation (DOT) health requirements, drivers of commercial motor
vehicles in interstate commerce must have ``no current clinical
diagnosis of high blood pressure likely to interfere with his/her
ability to operate a commercial vehicle safely.'' Mr. Murphy has had
hypertension (high blood pressure) since he was 10 years old. With
medication, however, ``he can function normally and can engage in
activities that other persons normally do.'' \42\
---------------------------------------------------------------------------
\42\ Murphy, 527 U.S. at 519-20.
---------------------------------------------------------------------------
At the time UPS hired him, Mr. Murphy's blood pressure was too high
for Mr. Murphy to qualify for a DOT health certification. However, due
to an error, he was erroneously granted certification and he started
working for UPS. About a month later, a UPS medical supervisor
discovered the error while reviewing Mr. Murphy's medical files and
requested that he have his blood pressure retested. Upon retesting, Mr.
Murphy's blood pressure, at 160/102 and 164/104, was not low enough to
qualify him for the 1-year certification that he had incorrectly been
issued, but it was sufficient to qualify him for an optional temporary
DOT health certification. UPS fired Mr. Murphy on the grounds that his
blood pressure exceeded DOT's requirement and refused to allow him to
attempt to obtain the optional temporary certification.\43\
---------------------------------------------------------------------------
\43\ Id.
---------------------------------------------------------------------------
Believing UPS had discriminated against him based on disability,
Mr. Murphy brought a claim under the ADA. Both the district court and
the Tenth Circuit Court of Appeals determined that since Mr. Murphy
functioned normally with medication, his high blood pressure did not
substantially limit him in any major life activity and thus was not
covered by the ADA. The Supreme Court agreed, citing its holding in
Sutton that the determination of disability should be made with
reference to mitigating measures. Because Mr. Murphy was found not to
be ``disabled'' for purposes of the ADA, the Court never reached the
question whether Mr. Murphy was qualified to perform the job or whether
UPS had discriminated against him by refusing to allow him to obtain a
temporary DOT health certification.\44\
---------------------------------------------------------------------------
\44\ Id. at 520-22, 525.
---------------------------------------------------------------------------
Albertson's, Inc. v. Kirkingburg
In August 1990, Albertson's, Inc., a grocery-store chain, hired
Hallie Kirkingburg as a truck driver. Mr. Kirkingburg had more than 10
years' driving experience and performed well on his road test for the
job. Mr. Kirkingburg has an uncorrectable vision condition that
involves weakened vision in one eye, so that he has in effect
``monocular'' vision, or vision in only one eye. Over time, Mr.
Kirkinburg had learned to compensate for the weakened vision in his
left eye by making subconscious adjustments to the manner in which he
senses depth and perceived peripheral objects in his right eye.\45\
---------------------------------------------------------------------------
\45\ Albertson's, 527 U.S. at 558-59, 565.
---------------------------------------------------------------------------
Before he started working, Albertson's required Kirkingburg to be
examined by a doctor to see if he met Federal DOT vision standards for
commercial truck drivers. Despite Kirkingburg's weakened vision in his
left eye, the examining doctor erroneously certified that Kirkingburg
met the DOT's basic vision standards. In December 1991, Mr. Kirkingburg
took a leave of absence after injuring himself when he fell from the
cab of his truck. Albertson's required returning employees to undergo a
physical examination, which Mr. Kirkingburg did in November 1992. This
time, the examining physician correctly assessed Kirkingburg's vision
and found that his eyesight did not meet the basic DOT standards. Mr.
Kirkingburg was told that he would have to obtain a waiver of the DOT's
basic vision standards in order to be qualified to drive. DOT had a
process for giving certification to applicants with deficient vision
who had 3 years of recent experience driving a commercial vehicle with
a clean driving record.\46\
---------------------------------------------------------------------------
\46\ Id. at 559-60.
---------------------------------------------------------------------------
Mr. Kirkingburg applied for a waiver, but while his application was
pending, Albertson's fired him because he could not meet the basic DOT
vision standard. Although Mr. Kirkingburg ultimately received a DOT
waiver, Albertson's still refused to rehire him.\47\
---------------------------------------------------------------------------
\47\ Id. at 560.
---------------------------------------------------------------------------
Mr. Kirkingburg brought suit alleging that Albertson's violated the
ADA by firing him. The district court ruled that Mr. Kirkingburg was
not qualified for the job, and that Albertson's was not required, as a
reasonable accommodation, to give him time to get a DOT waiver. The
Ninth Circuit Court of Appeals reversed the district court's decision,
holding that Albertson's could not use the DOT vision standard as the
justification for its vision requirement and yet disregard the waiver
program that was a legitimate part of the DOT program. Albertson also
argued for the first time before the Ninth Circuit that Mr. Kirkingburg
did not have a disability within the meaning of ADA. The Ninth Circuit
rejected this argument, concluding that Mr. Kirkingburg had presented
evidence that his vision was effectively monocular, and thus ``the
manner in which he sees differs significantly from the manner in which
most people see.'' \48\
---------------------------------------------------------------------------
\48\ Id. at 561.
---------------------------------------------------------------------------
The Supreme Court reversed the Ninth Circuit, concluding that it
had been ``too quick to find a disability.'' \49\ According to the
Court, the Ninth Circuit's determination that Mr. Kirkingburg's manner
of seeing was ``different'' from others was insufficient to show
disability. Instead, Mr. Kirkingburg's sight must be ``significantly
restricted.'' Second, the Court determined that Sutton's mandate that
courts consider mitigating measures includes ``measures undertaken,
whether consciously or not, with the body's own systems.'' \50\ Thus,
the Ninth Circuit should have considered the ability of Mr.
Kirkingburg's brain to compensate for his monocular vision in
determining whether he had a disability.\51\ Third, contrary to the
individualized assessment required under the ADA, the Ninth Circuit
failed to identify the extent of Mr. Kirkingburg's visual
restrictions.\52\
---------------------------------------------------------------------------
\49\ Id. at 564.
\50\ Id. at 565-66.
\51\ Id.
\52\ As for Albertson's primary contention--that Mr. Kirkingburg
was not qualified--the Court declared that Albertson's had both a
``right'' and an ``unconditional obligation'' to follow the DOT
commercial truck driver regulations. Id. at 570. The Supreme Court
ruled that ``[t]he waiver program was simply an experiment with
safety'' and ``did not modify the general visual acuity standards.''
Id. at 574. Since the DOT regulation did not require employers of
commercial drivers to participate in the experimental waiver program,
Albertson's was free to decline to do so. Id. at 577.
---------------------------------------------------------------------------
The Supreme Court's requirement that courts consider mitigating
measures creates an unintended paradox: people with serious health
conditions like epilepsy and diabetes, who are fortunate enough to find
treatment that makes them more capable and independent, and thus more
able to work, find they are not protected by the ADA because the
limitations arising from their impairments are not considered
substantial enough. Ironically, the better a person manages his or her
medical condition, the less likely that person will be protected from
discrimination, even if an employer admits that he or she dismissed the
person because of that person's (mitigated) condition.\53\
---------------------------------------------------------------------------
\53\ See examples below in section IV.
---------------------------------------------------------------------------
B. Broad Range of Jobs Under ``Regarded as'' Prong
In Sutton, the sisters had also argued that United ``regarded''
them as substantially limited in the major life activity of working
and, therefore, that they should be covered under the third prong of
the definition of disability. They contended that United's vision
requirement ``substantially limited their ability to engage in the
major life activity of working by precluding them from obtaining the
job of global airline pilot.'' \54\
---------------------------------------------------------------------------
\54\ Sutton, 527 at 490.
---------------------------------------------------------------------------
The Supreme Court rejected that analysis by applying the EEOC's
regulations concerning the major life activity of ``working'' to the
third prong of the definition--despite EEOC's explicit guidance to the
contrary.
The Court ruled that:
``[w]hen the major life activity under consideration is that
of working, the statutory phrase `substantially limits'
requires, at a minimum, that plaintiffs allege they are unable
to work in a broad class of jobs.'' \55\
\55\ Id. at 491.
---------------------------------------------------------------------------
As support for this ruling, the Court quoted a sentence from the
regulation interpreting the phrase ``substantially limits'': ``[t]he
inability to perform a single, particular job does not constitute a
substantial limitation in the major life activity of working.'' \56\
The Court thus concluded that because the sisters had failed to show
that United regarded them as incapable of performing a broad range of
jobs--beyond the single job of ``global airline pilot''--they were not
regarded as being substantially limited in the major life activity of
working.\57\
---------------------------------------------------------------------------
\56\ Id. (quoting 29 CFR Sec. 1630.2(j)(3)(i)). The regulation
states: (3) With respect to the major life activity of working--; (i)
The term substantially limits means significantly restricted in the
ability to perform either a class of jobs or a broad range of jobs in
various classes as compared to the average person having comparable
training, skills and abilities. The inability to perform a single,
particular job does not constitute a substantial limitation in the
major life activity of working.
\57\ Id. at 493.
---------------------------------------------------------------------------
In reaching its conclusion, the Court ignored the EEOC's guidance
on how the major life activity of working was to be understood
differently for purposes of the first and third prongs of the
definition of disability. The EEOC had noted in its guidance that the
major life activity of working should be considered under the first
prong of the definition only in the rare situation in which an
individual was not limited in any other major life activity.\58\ As
noted above, in most cases decided under the Rehabilitation Act,
individuals with a range of impairments had been held by the courts
(without significant analysis) to be substantially limited in such
major life activities as standing, lifting, breathing, walking,
bending, seeing or hearing. Thus, according to the EEOC, the only time
an individual should argue that he or she was limited in the major life
activity of working under the first prong of the definition was when
the person was not experiencing a limitation in any other life
activity. In such circumstances, the EEOC regulations provided, the
individual would have to prove that he or she was limited in a broad
class of jobs, and not just in one job.\59\
---------------------------------------------------------------------------
\58\ See 29 CFR pt. 1630, App. Sec. 1630.2(j) (``If an individual
is not substantially limited with respect to any other major life
activity, the individual's ability to perform the major life activity
of working should be considered. If an individual is substantially
limited in any other major life activity, no determination should be
made as to whether the individual is substantially limited in
working.'' ) (emphasis added.)
\59\ Id.
---------------------------------------------------------------------------
By contrast, the EEOC's guidance for ``Regarded as Substantially
Limited in a Major Life Activity'' was quite different.\60\ In that
section of the guidance, the EEOC explained as follows:
---------------------------------------------------------------------------
\60\ See 29 CFR pt. 1630, App. Sec. 1630.2(l) (emphasis added).
The rationale for the ``regarded as'' part of the definition
of disability was articulated by the Supreme Court in the
context of the Rehabilitation Act of 1973 in School Board of
Nassau County v. Arline, 480 U.S. 273 (1987). The Court noted
that, although an individual may have an impairment that does
not in fact substantially limit a major life activity, the
reaction of others may prove just as disabling. ``Such an
impairment might not diminish a person's physical or mental
capabilities, but could nevertheless substantially limit that
person's ability to work as a result of the negative reactions
of others to the impairment.'' 480 U.S. at 283. . . .
An individual rejected from a job because of the ``myths,
fears and stereotypes'' associated with disabilities would be
covered under this part of the definition of disability,
whether or not the employer's or other covered entity's
perception were shared by others in the field and whether or
not the individual's actual physical or mental condition would
be considered a disability under the first or second part of
this definition. . . .
Therefore, if an individual can show that an employer or
other covered entity made an employment decision because of a
perception of disability based on ``myth, fear or stereotype,''
the individual will satisfy the ``regarded as'' part of the
definition of disability. If the employer cannot articulate a
non-discriminatory reason for the employment action, an
inference that the employer is acting on the basis of ``myth,
fear or stereotype'' can be drawn.\61\
---------------------------------------------------------------------------
\61\ Id. (emphasis added)
Unfortunately, the Supreme Court ignored the logic of the EEOC's
guidance and imported to the third prong of the definition a
restriction that had made sense under the first prong of the
definition, but made no sense at all under the third prong. The
formulation enunciated by the Supreme Court now erects an almost
impossible threshold for any individual seeking coverage under the
third prong. The Court's approach requires that an individual
essentially both divine and prove an employer's subjective state of
mind. Not only must an individual demonstrate that the employer
believed the individual had an impairment that prevented him or her
from working for that employer in that job, the individual must also
show that the employer thought that the impairment would prevent the
individual from performing a broad class of jobs for other employers.
As it is safe to assume that employers do not regularly consider the
panoply of other jobs that prospective or current employees could or
could not perform--and certainly do not often create direct evidence of
such considerations--the individual's burden becomes essentially
insurmountable.
While the ``one-two punch'' of the Sutton trilogy--requiring
consideration of mitigating measures under the first prong of the
definition and requiring proof of being regarded as substantially
limited in a range of jobs under the third prong of the definition--
began the slide toward non-coverage under the ADA for people with a
range of physical and mental impairments, the Court made the situation
worse 3 years later in another decision regarding the definition of
disability.
C. Demanding Standard: Substantially Limits a Major Life Activity
In 2002, the Supreme Court considered the case of Toyota Motor
Manufacturing, Kentucky, Inc. v. Williams.\62\ In that case, Toyota
Motor Manufacturing, Kentucky, Inc., hired Ella Williams to work on an
engine assembly line at its car manufacturing plant in Georgetown,
Kentucky. Soon after she began to work with pneumatic tools (tools
using pressurized air), Ms. Williams developed carpal tunnel syndrome
and tendonitis that caused pain in both of her hands, wrists, and arms.
Williams' personal physician placed her on permanent work restrictions
that precluded her from lifting more than 20 pounds, from frequent
lifting of even lighter objects, from constant repetitive motions of
her wrists or elbows, from performing overhead work, and from using
vibratory or pneumatic tools.\63\
---------------------------------------------------------------------------
\62\ 534 U.S. 184 (2002).
\63\ Id. at 187-88.
---------------------------------------------------------------------------
As a result, Toyota assigned Ms. Williams to various modified duty
jobs. Eventually she was assigned to work as part of a Quality Control
Inspection Operations team, where she routinely performed two of the
four tasks of the team, both of which involved solely visual
inspections. Ms. Williams satisfactorily performed these tasks for a
period of 2 years.
Toyota then decided that all members of the teams should rotate
through all four of the Quality Control Inspection tasks. Ms. Williams
was therefore ordered to apply highlight oil to several parts of cars
as they passed on the assembly line, requiring her to hold her hands
and arms up around her shoulder level for several hours at a time. As a
result, she began experiencing pain in her neck and shoulders, and was
diagnosed as having several medical conditions that cause inflammation
and pain in the arms and shoulders.\64\ Toyota refused to make an
exception to its policy and permit Williams to continue performing only
the visual inspection tasks.
---------------------------------------------------------------------------
\64\ Id. at 188-90.
---------------------------------------------------------------------------
Ms. Williams filed an ADA claim, alleging that Toyota had failed to
accommodate her disability. The district court ruled that Ms. Williams
was not ``disabled'' under the ADA because her impairments did not
substantially limit her in a major life activity. The Sixth Circuit
Court of Appeals reversed, holding that Ms. Williams' impairments did
substantially limit her in the major life activity of performing manual
tasks. The Supreme Court reversed, holding that the Sixth Circuit had
failed to apply the proper standard in determining whether Ms. Williams
was disabled ``because it analyzed only a limited class of manual tasks
and failed to ask whether [Ms. Williams'] impairments prevented or
restricted her from performing tasks that are of central importance to
most people's daily lives.'' \65\
---------------------------------------------------------------------------
\65\ Id. at 187.
---------------------------------------------------------------------------
The full adverse import of the Supreme Court's ruling, however, lay
in its broad pronouncements regarding the proper interpretation of the
words ``substantially limits'' and ``major life activities.'' The Court
stated that, given the finding in the ADA that 43 million people have
disabilities, these terms ``need to be interpreted strictly to create a
demanding standard for qualifying as disabled.'' \66\ Indeed, ``[i]f
Congress intended everyone with a physical impairment that precluded
the performance of some isolated, unimportant, or particularly
difficult manual task to qualify as disabled, the number would surely
have been much higher.'' \67\
---------------------------------------------------------------------------
\66\ Id. at 197.
\67\ Id.
---------------------------------------------------------------------------
According to the Court, `` `[s]ubstantially' in the phrase
`substantially limits' suggests `considerable' or `to a large degree.'
'' \68\ Therefore, the Court reasoned, ``the word `substantial' clearly
precludes impairments that interfere in only a minor way with the
performance of manual tasks from constituting disabilities'' under the
ADA.\69\ The Court also stated that ``[m]ajor in the phrase `major life
activities' means important,'' and so ``major life activities'' refers
to ``those activities that are of central importance to daily life,''
including ``household chores, bathing, and brushing one's teeth.'' \70\
---------------------------------------------------------------------------
\68\ Id. at 196.
\69\ Id. at 197.
\70\ Id. at 197, 201-02. Because Ms. Williams was able to brush her
teeth and do laundry, she was therefore not substantially limited in
the activities of central importance to the daily lives of most people.
Id. at 202.
---------------------------------------------------------------------------
As a result of this ruling, people alleging discrimination under
the ADA must now show that their impairments prevent or severely
restrict them from doing activities that are of central importance to
most people's daily lives.\71\
---------------------------------------------------------------------------
\71\ Id. at 197.
---------------------------------------------------------------------------
Through these three aspects of interpretation, the Supreme Court
and the lower courts have dramatically changed the meaning of
``disability'' under the ADA over the past number of years so as to
make it almost unrecognizable. Many of the people whom Congress
intended to protect find that they are no longer ``disabled'' under the
ADA; they are never even given the opportunity to show they can do the
job and were treated unfairly because of their medical condition.
The Supreme Court's narrow reading is in marked contrast to the
cases that had been decided under the Rehabilitation Act, which
Congress had before it as precedent when it enacted the ADA. In these
cases, the courts had tended to decide questions of coverage easily and
without extensive analysis.\72\ This narrow reading is likewise
inconsistent with other civil rights statutes, such as the Civil Rights
Act of 1964, upon which the ADA was modeled\73\ and which courts have
also interpreted broadly.\74\ Indeed, under the Rehabilitation Act and
Title VII of the Civil Rights Act, courts rarely tarried long on the
question of whether the plaintiff in a case was ``really a handicapped
individual,'' or ``really a woman,'' or ``really black.'' Instead,
these cases tended to focus on the essential causation requirement:
i.e., had the individual proven that the alleged discriminatory action
had been taken because of his or her handicap, race, or gender?\75\
---------------------------------------------------------------------------
\72\ Feldblum, Definition of Disability, supra note 19, at 128; see
also Appendix A, for coverage of people under section 504 as compared
to the ADA.
\73\ 42 U.S.C. Sec. 12101 (2007) (``[U]nlike individuals who have
experienced discrimination on the basis of race, color, sex, national
origin, religion, or age, individuals who have experienced
discrimination on the basis of disability have often had no legal
recourse to redress such discrimination.'' ).
\74\ See, e.g., Int'l Bhd. of Teamsters v. United States, 431 U.S.
324, 381 (1977) (Marshall and Brennan, JJ., concurring in part and
dissenting in part) (``Title VII is a remedial statute designed to
eradicate certain invidious employment practices . . . [and], under
longstanding principles of statutory construction, the Act should be
given a liberal interpretation.'' (internal quotation marks and
citation omitted)).
\75\ Feldblum, Definition of Disability, supra note 19, at 106.
---------------------------------------------------------------------------
But how did this happen? How did a statutory definition that
Members of Congress and disability rights advocates felt would ensure
protection for a broad range of individuals end up becoming the
principal means of restricting coverage under the ADA?
There is a range of academic literature on this question, including
some to which I have contributed. But let me point out here simply one
observation. From my reading of the cases, it seems to me that the
instinctive understanding by many courts of the term ``disability'' is
that it is synonymous with an ``inability to work or function,'' and
concomitantly, that people with disabilities are thus necessarily
viewed as significantly different from ``the rest of us.''
This view of disability may have been influenced by the fact that
most disability cases heard by courts prior to the ADA regarded claims
for disability payments under Social Security. In those cases, an
individual was required to demonstrate that he or she had a ``medically
determinable physical or mental impairment'' that made him or her
unable ``to engage in any substantial gainful activity''--i.e., that he
or she was unable to work.\76\ Hence, it may have been difficult for
courts to grasp that the congressional intent under the ADA was to
capture a much broader range of individuals with physical and mental
impairments than those intended to be covered under Social Security
disability law.\77\
---------------------------------------------------------------------------
\76\ 42 U.S.C. Sec. 423(d)(1)(A) (2007) (SSDI); 42 U.S.C.
Sec. 1382c(a)(3)(A) (2007) (SSI).
\77\ See Feldblum, Definition of Disability, supra n. 19, at 97,
140.
---------------------------------------------------------------------------
But a civil rights law is not a disability payment law. The goal of
the ADA is to prohibit discrimination against a person because of his
or her disability. A person does not have to be unable to work in order
to face discrimination based on his or her impairment. On the contrary,
people who are perfectly able to perform their jobs--sometimes thanks
to the very medications or devices they use--are precisely the ones who
may face discrimination because of myths, fears, ignorance, or
stereotypes about their medical conditions.
Similarly, in a civil rights context, requiring a person to meet an
extremely high standard for qualifying as ``disabled'' is counter-
intuitive if an employer has taken an adverse action based on an
individual's physical or mental impairment. Requiring the person to
reveal private, highly personal, and potentially embarrassing facts to
employers and judges about the various ways the individual's impairment
impacts daily living, simply and only to demonstrate the severity of
the impairment, is completely unnecessary to deciding whether unjust
discrimination has occurred.\78\
---------------------------------------------------------------------------
\78\ As I also note in my academic article, there are other
elements that are in play here. For example, ``EEOC regulations that
emphasize individualized assessments of the impact of impairments on
particular individuals, a sophisticated management bar trained in
seminars to carefully parse the statutory text of the definition, and
finally, the terms of the definition itself, have all resulted in a
reading of the ADA that has radically reduced the number of people who
can claim coverage under the law.'' Feldblum, Definition of Disability,
supra n. 19, at 140; see also id. at 152 (``[W]hile individualized
assessments are . . . critical in determining whether an individual
with a disability is qualified for a job (including whether a
reasonable accommodation is due to an individual in a particular case),
the idea that an individualized assessment would be used to determine
whether one person with epilepsy would be covered under the law, while
another person with epilepsy would not, was completely foreign both to
section 504 jurisprudence and to the spirit of the ADA as envisioned by
its advocates. The words of the ADA, however, can lend themselves to
such an interpretation, and the fact that the EEOC's guidance expressly
endorsed such an interpretation has cemented that approach in the
courts.'' ).
---------------------------------------------------------------------------
Finally, it is inconsistent with a civil rights law to excuse an
employer's behavior simply because other employers may not also act in
a similar discriminatory fashion. As the court made clear in Arline, if
an employer fires an individual expressly because of an impairment,
that is sufficient to establish coverage for the individual under the
``regarded as'' prong of the definition of disability. Of course, an
action of this nature would not suffice to qualify an individual for
disability payments. But it certainly is sufficient to raise a viable
claim of discrimination based on that impairment, regardless of whether
other employers would have discriminated against the individual as
well.
iv. the real life impact of shrinking coverage under the ada
Regardless of what one believes about the original intent of
Congress in passing the ADA, the relevant question for Congress today
is whether people with a range of physical and mental impairments are
being treated fairly--today. Consider the following real-life impacts
of the Supreme Court's ruling with regard to mitigating measures:
Stephen Orr, a pharmacist in Nebraska, was fired from his
job at Wal-Mart because he needed to take a half-hour uninterrupted
lunch break to manage his diabetes. When Mr. Orr challenged his firing
under the ADA, Wal-Mart argued that since Mr. Orr did so well managing
his diabetes with insulin and diet, he was not ``disabled'' under the
ADA. The courts agreed. Although Wal-Mart considered Mr. Orr ``too
disabled'' to work for Wal-Mart, he was not disabled ``enough'' to
challenge his firing under the ADA.\79\
---------------------------------------------------------------------------
\79\ Orr v. Wal-Mart Stores, Inc., 297 F.3d 720 (8th Cir. 2002).
---------------------------------------------------------------------------
James Todd, a shelf-stocking clerk at a sporting goods
store in Texas, was fired from his job a few months after experiencing
a seizure at work. Mr. Todd challenged his firing under the ADA, but
the district court never reached the question of whether Mr. Todd had
been fired because of his epilepsy. Instead, the court concluded that
since Mr. Todd's epilepsy was otherwise well-managed with anti-seizure
medication, he was not disabled ``enough'' to challenge his firing
under the ADA.\80\
---------------------------------------------------------------------------
\80\ Todd v. Academy Corp., 57 F. Supp. 2d 448 (S.D. Tex. 1999).
---------------------------------------------------------------------------
Allen Epstein, the CEO of an insurance brokerage firm, was
demoted from his job after being hospitalized because of heart disease.
He was later fired shortly after telling his employer he had diabetes.
Mr. Epstein brought a claim under the ADA, alleging that his employer
had discriminated against him because of disability. The court held
that because his heart disease and diabetes were well-managed with
medication, he was not disabled ``enough'' to challenge his firing
under the ADA.\81\
---------------------------------------------------------------------------
\81\ Epstein v. Kalvin-Miller International, Inc., 100 F. Supp. 2d
222 (S.D.N.Y. 2000).
---------------------------------------------------------------------------
Ruth Eckhaus, a railroad employee who uses a hearing aid,
was fired by her employer who told her that he ``could not hire someone
with a hearing aid because [the employer] had no way of knowing if she
would remember to bring her hearing aid to work.'' Ms. Eckhaus brought
a claim under the ADA, alleging that she was discriminated against
based on her hearing impairment. The court concluded that since her
hearing aid helped correct her hearing impairment, Ms. Eckhaus was not
disabled ``enough'' to challenge discrimination based on that
impairment.\82\
---------------------------------------------------------------------------
\82\ Eckhaus v. Consolidated Rail Corp., No. Civ. 00-5748(WGB),
2003 WL 23205042 (D.N.J. Dec. 24, 2003)
---------------------------------------------------------------------------
Michael Schriner, a salesperson who developed major
depression and PTSD after discovering that his minor children had been
abused, was fired from his job for failing to attend a training
session. Believing he was fired because of his depression and PTSD, Mr.
Schriner brought a claim under the ADA. But the court never addressed
whether his disability was the reason he was fired. Instead, that court
concluded that because Mr. Schriner did so well managing his condition
with medication, he was not disabled ``enough'' to be protected by the
ADA.\83\
---------------------------------------------------------------------------
\83\ Schriner v. Sysco Food Serv., No. Civ. 1CV032122, 2005 WL
1498497 (M.D. Pa. June 23, 2005).
---------------------------------------------------------------------------
Michael McMullin, a career law enforcement officer from
Wyoming, was fired from his job as a court security officer because an
examining physician determined that his clinical depression and use of
medication disqualified him from his job. When Mr. McMullin challenged
his firing under the ADA, his employer argued that Mr. McMullin was not
``disabled'' under the ADA because he had successfully managed his
condition with medication for over 15 years. The court agreed. Even
though Mr. McMullin's employer had fired him because of his use of
medication, the court ruled that he was not disabled ``enough'' to
challenge the discrimination under the ADA. According to the court,
``[t]his is one of the rare, but not unheard of, cases in which many of
the plaintiff's claims are favored by equity, but foreclosed by the
law.'' \84\
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\84\ McMullin v. Ashcroft, 337 F. Supp. 2d 1281 (D. Wyo. 2004).
Is this what Congress believes the law should be today?
Or consider the impact of the Supreme Court's ruling, that to be
covered under the third prong of the definition, an individual must
prove that his or her employer thought that he or she was incapable of
performing a broad range of jobs:
Rhua Dale Williams, an offshore crane operator with 20
years' experience, was refused a crane operator job because of his two
prior back surgeries. Believing the company had regarded him as
disabled, Mr. Williams filed a claim under the ADA. The court held that
because Mr. Williams had shown that the company believed him incapable
of performing only the job of offshore crane operator--and not the job
of crane operator more generally--he was not regarded as incapable of
performing a broad range of jobs. As a result, Mr. Williams was not
covered by the ADA.\85\
---------------------------------------------------------------------------
\85\ E.E.O.C. v. HBH Inc., No. Civ.A. 98-2632, 1999 WL 1138533
(E.D.La. Dec. 9, 1999).
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Hundreds of applicants for truck-driving positions were
refused jobs at a motor carrier company solely because of a blanket
exclusionary policy that prohibited the hiring of people who used
certain prescription medications. The applicants alleged that the
company had regarded them as disabled. The courts disagreed, holding
that since the applicants had shown only that the company believed them
incapable of working as truck drivers for the company--and not as truck
drivers in general--they were not regarded as incapable of performing a
broad range of jobs. As a result, the applicants were not covered by
the ADA.\86\
---------------------------------------------------------------------------
\86\ E.E.O.C. v. J.B. Hunt Transport, Inc., 321 F.3d 69 (2d Cir.
2003).
Is this what Congress believes the law should be today?
Finally, consider the following real-life impacts of the Supreme
Court's ruling that the terms ``substantially limits'' and ``major life
activity'' must be interpreted strictly:
Carey McClure, an electrician with 20 years of experience,
was offered a job at a General Motors' (GM) assembly plant pending
completion of a pre-employment physical exam. When the examining
physician saw that Mr. McClure could only lift his arms to shoulder
level, Mr. McClure explained that he had muscular dystrophy, and that
he could do overhead work by using a ladder, as electricians often do.
The physician revoked the job offer, and Mr. McClure brought a claim
under the ADA. Even though GM revoked Mr. McClure's job offer because
of limitations resulting from his muscular dystrophy, GM argued in
court that Mr. McClure did not have a ``disability'' and was not
protected by the ADA. The courts agreed. According to the Fifth Circuit
Court of Appeals:
[Mr. McClure] has adapted how he bathes, combs his hair,
brushes his teeth, dresses, eats, and performs manual tasks by
supporting one arm with the other, repositioning his body, or
using a step-stool or ladder. . . . [Mr. McClure's] ability to
overcome the obstacles that life has placed in his path is
admirable. In light of this ability, however, we cannot say
that the record supports the conclusion that his impairment
substantially limits his ability to engage in one or more major
life activities.\87\
---------------------------------------------------------------------------
\87\ McClure v. General Motors Corp., 75 Fed. Appx. 983, 2003 WL
21766539 (5th Cir. 2003).
Vanessa Turpin, an auto packaging machine operator with
epilepsy, resigned after her employer required her to take a work-shift
that would have worsened her seizures. Ms. Turpin challenged her
employer's actions by filing a claim under the ADA, but the court never
decided whether these actions were discriminatory. The court held that
even though Vanessa Turpin experienced nighttime seizures characterized
by ``shaking, kicking, salivating and, on at least one occasion,
bedwetting,'' which caused her to ``wake up with bruises on her arms
and legs,'' Vanessa was not ``disabled'' because ``[m]any individuals
fail to receive a full night sleep.'' The court further held that
Vanessa's daytime seizures, which ``normally lasted a couple of
minutes'' and which caused her to ``bec[o]me unaware of and
unresponsive to her surroundings'' and ``to suffer memory loss,'' did
not render her ``disabled'' because ``many other adults in the general
population suffer from a few incidents of forgetfulness a week.'' \88\
---------------------------------------------------------------------------
\88\ Equal Employment Opportunity Comm'n v. Sara Lee Corp., 237
F.3d 349 (4th Cir. 2001).
---------------------------------------------------------------------------
Zelma Williams is a right-hand dominant person whose right
arm was amputated below the elbow. Despite an exemplary work record,
Ms. Williams was not among those rehired after the company for which
she worked was sold. Ms. Williams brought a claim under the ADA, but
the court never decided whether her employer discriminated against her
because of disability. Instead, the court held that Ms. Williams was
not ``disabled'' because she was not ``prevented or severely restricted
from doing activities that are of central importance to most people's
daily's lives . . . [like] household chores, bathing oneself, and
brushing one's teeth.'' According to the court, Ms. Williams' amputated
arm was only a ``physical impairment, nothing more.'' \89\
---------------------------------------------------------------------------
\89\ Williams v. Cars Collision Center, LLC, No. 06 C 2105 (N.D.
Ill. July 9, 2007).
---------------------------------------------------------------------------
Christopher Phillips, a store maintenance worker with a
traumatic brain injury, brought a claim under the ADA after he was
fired from his job. Although Mr. Phillips' brain injury caused a 4-
month coma, weeks of rehabilitation, an inability to work for 14 years,
blurred vision, dizziness, spasms in his arms and hands, slowed
learning, headaches, poor coordination, and slowed speech, the court
held that ``this evidence does not establish that [Mr. Phillips] is
substantially limited in the major life activities of learning,
speaking, seeing, performing manual tasks, eating or drinking.''
Therefore, Mr. Phillips was not ``disabled'' under the ADA.\90\
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\90\ Phillips v. Wal-Mart Stores, Inc., 78 F. Supp. 2d 1274 (S.D.
Ala. 1999).
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Robert Tockes, a truck driver who had limited use of one
hand as a result of an injury he sustained in the Army, was fired from
his job and was told by his employer that ``he was being fired because
of his disability, he was crippled, and the company was at fault for
having hired a handicapped person.'' Mr. Tockes brought a claim under
the ADA, but the court never addressed whether he had been
discriminated against. Instead, the court concluded that he was not
protected by the ADA because he was not ``disabled.'' While,
``[o]bviously [the employer] knew [Mr. Tockes] had a disability,'' the
court stated, that ``does not mean that it thought him so far disabled
as to fall within the restrictive meaning the ADA assigns to the
term''.\91\
---------------------------------------------------------------------------
\91\ Tockes v. Air-Land Transport Services, Inc., 343 F.3d 895 (7th
Cir. 2003).
---------------------------------------------------------------------------
Mary Ann Pimental, a registered nurse with stage III
breast cancer, took time from work to undergo a mastectomy,
chemotherapy, and radiation therapy. While Mary Ann was hospitalized
and receiving treatment for cancer, the hospital reorganized its
management team and eliminated Mary Ann's position. When the hospital
refused to rehire her into an equivalent position, Ms. Pimental brought
a claim under the ADA. But the court never decided whether Ms.
Pimental's breast cancer played a role in the hospital's hiring
decision. Instead, the court agreed with the hospital that ``the most
substantial side effects [of Ms. Pimental's breast cancer and
treatment] were (relatively speaking) short-lived'' and therefore
``they did not have a substantial and lasting effect on the major
activities of her daily life.'' Because Ms. Pimental failed to show she
was limited by the breast cancer on a ``permanent or long-term basis,''
she was held to be not ``disabled'' and therefore not protected by the
ADA. Sadly, Ms. Pimental died of breast cancer 4 months after the court
issued its decision.\92\
---------------------------------------------------------------------------
\92\ Pimental v. Dartmouth-Hitchcock Clinic, 236 F. Supp. 2d 177
(D.N.H. 2002).
---------------------------------------------------------------------------
Daniel Didier, a frozen food delivery manager with a
permanently injured arm, was fired from his job because of limitations
resulting from his injury. Believing he had been discriminated against
based on disability, Mr. Didier challenged his firing under the ADA.
Despite firing Mr. Didier because of his physical limitations, his
employer argued in court that his limitations did not rise to the level
of ``disability'' under the ADA. The court agreed. Even though Mr.
Didier ``does have some medically imposed restrictions,'' the court
stated, ``he has not met his burden of showing that the extent of his
limitations due to his impairment are `substantial.' '' According to
the court, since Mr. Didier was able to perform activities of daily
living, ``such as shaving and brushing his teeth, with his left hand .
. . he does not have a disability as defined under the first prong of
the ADA.'' \93\
---------------------------------------------------------------------------
\93\ Didier v. Schwan Food Co., 387 F. Supp. 2d 987 (W.D. Ark.
2005).
---------------------------------------------------------------------------
Charles Littleton, a 29-year-old man who was diagnosed
with ``mental retardation'' as a young child, applied for a cart-pusher
position at Wal-Mart. When he got to the interview, Wal-Mart refused to
allow his job coach into the interview as previously agreed upon. The
interview did not go well for Mr. Littleton and he did not get the job.
Believing he had been discriminated against because of his disability,
Mr. Littleton brought a claim under the ADA. But the courts never
determined whether Wal-Mart discriminated against him because of his
disability. Instead, the courts simply ruled that Mr. Littleton was not
``disabled'' under the ADA. While acknowledging that Mr. Littleton ``is
somewhat limited in his ability to learn because of his mental
retardation,'' the Eleventh Circuit Court of Appeals concluded that he
was not substantially limited in his ability to learn because he could
read. In addition, the court concluded that while ``[i]t is unclear
whether thinking, communicating, and social interaction are `major life
activities' under the ADA,'' Mr. Littleton was not substantially
limited in these activities because he was able to drive a car and
communicate with words.\94\
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\94\ Littleton v. Wal-Mart Stores, Inc., 231 Fed. Appx. 874 (11th
Cir. 2007).
Is this what Congress thinks the law should be today?
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.\95\
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\95\ See Feldblum, Definition of Disability, supra note 19, at 93
(``That decision [Sutton] threw into question coverage for thousands of
individuals with impairments whom I, and other advocates who worked on
the ADA, presumed Congress had intended to cover when it passed the
ADA.'' ); see also Claudia Center and Andrew J. Imparato, Development
in Disability Rights: Redefining ``Disability'' Discrimination: A
Proposal to Restore Civil Rights Protections for All Workers, 14 Stan.
L. & Pol'y Rev 321, 323 (2003) (``In light of the unwillingness of the
U.S. Supreme Court and the lower Federal courts to interpret the ADA's
definition of disability in an inclusive manner, consistent with the
intent of the law's drafters in Congress, it is time to rewrite the
ADA's definition of disability and restore civil rights protections to
the millions of Americans who experience disability-based
discrimination.'' ); Robert Burgdorf, ``Substantially Limited''
Protection from Disability Discrimination: The Special Treatment Model
and Misconstructions of the Definition of Disability, 42 Vill. L. Rev.
409, 561 (1997) (``The restrictive interpretations of statutory
protection under the ADA and Rehabilitation Act, however, have
engendered a situation in which many cases are decided solely by
looking at the characteristics of the plaintiff.'' ).
---------------------------------------------------------------------------
The National Council on Disability, relying upon the expertise of a
range of lawyers provided over a period of time, has suggested that the
best way to fix the problems encountered in the courts is to change the
language of the ADA so that it forces the court to focus on the reason
an adverse action has been taken, rather than on the specifics of a
person's physical or mental condition.\96\ In this way, litigation
under the ADA would mirror litigation under Title VII of the Civil
Rights Act--in which a plaintiff must prove that discrimination
occurred because of race, sex, religion, or national origin, but is not
required to get into the specifics of his or her race, sex, religion,
or national origin.
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\96\ National Council on Disabilities, Righting the ADA, Executive
Summary, 13 (2004), available at http://www.ncd.gov/newsroom/
publications/2004/righting_ada.htm.
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One can achieve this result with two basic changes to the language
of the ADA. First, the definition of ``disability'' should be a
``physical or mental impairment,'' with those terms defined as they
have been for years by the regulatory agencies. While this obviously
changes the words of the original ADA, it does not change the intent of
Congress in terms of coverage under the law. As I explain above, it was
understood and expected during passage of the ADA that a person with
any type of impairment, even a minor one, would be covered under the
third prong of the definition if the person could prove that he or she
had been subjected to adverse action because of that physical or mental
impairment. Indeed, it was based on this assumption of broad coverage
that Congress chose to go with the long-standing definition of Section
504 of the Rehabilitation Act, rather than with the new definition
offered by the National Council of Disability that had been
incorporated into the first version of the ADA.\97\ The rejection of
that new definition was not because Congress thought the definition was
too broad. Rather, it was because Congress agreed that such breadth was
necessary--and believed it was already encompassed under the third
prong of the definition.\98\
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\97\ S. 2345, 100th Cong., 2d Sess., 134 Cong. Rec. S5089 (daily
ed. Apr. 28, 1988).
\98\ See Feldblum, Definition of Disability, supra note 19, at 126-
129.
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Changing the ADA in this manner would bring it into conformity with
Title VII of the Civil Rights Act of 1964. Under that law, every person
in this country is covered, since every person has a race, a sex, a
religion (or lack of a religion), and a national origin. And any
individual may believe that he or she has been discriminated against
because of his or her race, sex, religion, or national origin. But
under our system of law, an individual claiming discrimination on any
of these grounds must prove that the discrimination occurred because of
the prohibited characteristic and could not be explained based on a
legitimate non-discriminatory reason. This same body of law would apply
to individuals arguing discrimination on the basis of disability.
Second, the ADA should be modified so that the employment section
prohibits discrimination ``on the basis of disability,'' rather than
the existing formulation that prohibits discrimination ``against a
qualified individual with a disability.'' This change would again bring
the ADA into conformity with Title VII of the Civil Rights Act of 1964,
which similarly prohibits discrimination ``on the basis of '' race,
sex, religion, and national origin. This formulation ensures that
courts will begin their analysis by focusing on whether a person has
proven that a challenged discriminatory action was taken because of a
personal characteristic--in this case, disability--and not on whether
the person has proven the existence of various complicated elements of
the characteristic.\99\
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\99\ Such a change would not change the right of an employer to
defend a claimed discriminatory action on the grounds that a particular
applicant or employee does not have the requisite qualifications for
the job. The four-part test set forth by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973) for a plaintiff 's prima
facie case of discrimination under title VII would continue to apply to
individuals bringing cases under the ADA. Under this test, a plaintiff
must present evidence that he or she is a member of a class protected
by the law; that he or she was subjected to an adverse employment
action; that the employer treated similarly situated employees who were
not members of the protected class more favorably; and that the
plaintiff was qualified to perform the required functions of the job.
Id. at 802. Thus, a basic level of qualification is already necessary
to meet the threshold of establishing a prima facie case under title
VII and would apply as well under the ADA. To the extent that an
employer wishes to impose affirmatively a qualification standard that
will screen out, or will tend to screen out, persons with disabilities,
the ADA permits an employer to do so if such standards are job-related
and consistent with business necessity. See 42 U.S.C. Sec. 12112(b)(6)
and Sec. 12113(a) (2007). This defense on the part of the employer
would not be changed by the suggested changes to the general employment
section.
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S. 1881, the Americans with Disabilities Act Restoration Act, would
make these changes in the law. I believe this bill is an appropriate
and justified response by Congress to the judicial narrowing of
coverage under the ADA and would provide the essential protection
needed by those who experience discrimination in our country today.
Thank you.
______
APPENDIX A.--People Covered Under Section 504 of the Rehabilitation Act
vs. People Not Covered Under the ADA
When writing the Americans with Disabilities Act (ADA), Congress
borrowed the definition of ``disability'' from the Rehabilitation Act
of 1973. (Originally noted as ``handicap.'' \1\) For 15 years, the
courts had generously interpreted this definition to cover a wide range
of physical and mental impairments. Below is a sampling of people that
courts held were ``disabled'' under the Rehabilitation Act based on
their impairments. The courts tended to decide questions of coverage
quickly and easily, without extensive analysis.
\1\ What the court terms ``mental retardation.''
---------------------------------------------------------------------------
Epilepsy.--Person with epilepsy ``disabled'': Reynolds v. Brock,
9th Cir. 1987.
Diabetes.--Person with diabetes ``disabled'': Bentivegna v. U.S.
Dep't of Labor, 9th Cir. 1982.
Intellectual & Developmental Disabilities*.--Person with
intellectual and developmental disabilities ``disabled'': Flowers v.
Webb, E.D.N.Y. 1983.
Bipolar Disorder.--Person with bipolar disorder ``disabled'':
Gardner v. Morris, 8th Cir. 1985.
Multiple Sclerosis.--Person with multiple sclerosis ``disabled'':
Pushkin v. Regents of Univ. of Colorado, 10th Cir. 1981.
Hard of Hearing.--Person who used hearing aid ``disabled'':
Strathie v. Dep't of Transp., 3rd Cir. 1983.
Vision in Only One Eye.--Person with vision in only one eye
``disabled'': Kampmeier v. Nyquist, 2d Cir. 1977.
Post-Traumatic Stress Disorder.--Person with PTSD ``disabled'':
Schmidt v. Bell, E.D. Pa. 1983.
Heart Disease.--Person with heart disease ``disabled'': Bey v.
Bolger, E.D. Pa. 1982.
Depression.--Person with depression ``disabled'': Pridemore v.
Rural Legal Aid Soc'y, S.D. Ohio 1985.
HIV Infection.--Person with HIV infection ``disabled'': Local 1812,
Am. Fed'n of Gov't Employees v. U.S., D.D.C. 1987.
Asthma.--Person with asthma ``disabled'': Carter v. Tisch, 4th Cir.
1987.
Asbestosis.--Person with asbestosis ``disabled'': Fynes v.
Weinberger, E.D. Pa. 1985.
Back Injury.--Person with back injury ``disabled'': Schuett Inv.
Co. v. Anderson, Minn. Ct. App. 1986.
People Not Covered Under the ADA
Congress expected the definition of ``disability'' would be
interpreted the same way under the ADA as it had been interpreted under
the Rehabilitation Act. But instead of following Congress'
expectations, the courts have read the definition in a strict and
constrained way. Below is a sampling of people that courts have
considered to be not ``disabled'' under the ADA. In contrast to cases
decided under the Rehabilitation Act, these courts have often devoted
pages of contorted analysis to arrive at their conclusions.
Epilepsy.--Person with epilepsy not ``disabled'': Todd v. Academy
Corp., S.D. Tex. 1999.
Diabetes.--Person with diabetes not ``disabled'': Orr v. Wal-Mart
Stores, Inc., 8th Cir. 2002.
Intellectual & Developmental Disabilities*.--Person with
intellectual and developmental disabilities not ``disabled'': Littleton
v. Wal-Mart Stores, Inc., 11th Cir. 2007.
---------------------------------------------------------------------------
* What the court terms ``mental retardation.''
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Bipolar Disorder.--Person with bipolar disorder not ``disabled'':
Johnson v. North Carolina Dep't of Health and Human Servs., M.D.N.C.
2006.
Multiple Sclerosis.--Person with multiple sclerosis not
``disabled'': Sorensen v. University of Utah Hosp., 10th Cir. 1999.
Hard of Hearing.--Person who used hearing aid not ``disabled'':
Eckhaus v. Consolidated Rail Corp., D.N.J. 2003.
Vision in Only One Eye.--Person with vision in one eye not
``disabled'': Albertson's, Inc. v. Kirkingburg, U.S. 1999.
Post-Traumatic Stress Disorder.--Person with PTSD not ``disabled'':
Rohan v. Networks Presentations LLC, 4th Cir. 2004.
Heart Disease.--Person with heart disease not ``disabled'': Epstein
v. Kalvin-
Miller Intern., Inc., S.D.N.Y. 2000.
Depression.--Person with depression not ``disabled'': McMullin v.
Ashcroft, D. Wyo. 2004.
HIV Infection.--Person with HIV infection not ``disabled'': Cruz
Carrillo v. AMR Eagle, Inc., D.P.R. 2001.
Asthma.--Person with asthma not ``disabled'': Tangires v. Johns
Hopkins Hosp., D. Md. 2000.
Asbestosis.--Person with asbestosis not ``disabled'': Robinson v.
Global Marine Drilling Co., 5th Cir. 1996.
Back Injury.--Person with back injury not ``disabled'': Wood v.
Crown Redi-Mix, Inc., 8th Cir. 2003.
Background Info for People Covered Under Rehab Act and ADA
The Rehabilitation Act originally referred to people covered under
the act as ``handicapped'' individuals. This changed in 1992, when the
act was amended to cover individuals with ``disabilities.'' Pub. L. No.
102-569.
A statement of Congress' expectations with regard to the definition
of ``disability'' under the ADA is nicely captured in: Steny H. Hoyer,
Not Exactly What We Intended Justice O'Connor, Wash. Post, Jan. 20,
2002, at B01.
people covered under section 504 of the rehabilitation act
Epilepsy: Reynolds v. Brock, 815 F.2d 571, 574 (9th Cir. 1987).
Diabetes: Bentivegna v. U.S. Dep't of Labor, 694 F.2d 619, 621 (9th
Cir. 1982).
Intellectual & Developmental Disabilities (``mental retardation''):
Flowers v. Webb, 575 F. Supp. 1450, 1456 (E. D. N.Y. 1983).
Bipolar Disorder: Gardner v. Morris, 752 F.2d 1271, 1280 (8th Cir.
1985).
Multiple Sclerosis: Pushkin v. Regents of Univ. of Colorado, 658
F.2d 1372, 1377, 1387 (10th Cir. 1981).
Hard of Hearing: Strathie v. Dep't of Transp., 716 F.2d 227, 230
(3rd Cir. 1983).
Vision in Only One Eye: Kampmeier v. Nyquist, 553 F.2d 296, 299 n.7
(2d Cir. 1977).
Post-Traumatic Stress Disorder: Schmidt v. Bell, No. 82-1758, 1983
WL 631, at *10 (E.D. Pa. 1983).
Heart Disease: Bey v. Bolger, 540 F. Supp. 910, 927 (E.D. Pa.
1982).
Depression: Pridemore v. Rural Legal Aid Soc'y, 625 F. Supp. 1180,
1185-86 (S.D. Ohio 1985).
HIV Infection: Local 1812, Am. Fed'n of Gov't Employees v. U.S.,
662 F. Supp. 50, 54 (D.D.C. 1987).
Asthma: Carter v. Tisch, 822 F.2d 465, 466 (4th Cir. 1987).
Asbestosis: Fynes v. Weinberger, 677 F. Supp. 315, 321 (E.D. Pa.
1985).
Back Injury: Schuett Inv. Co. v. Anderson, 386 N.W. 2d 249, 253
(Minn. Ct. App. 1986).
people not covered under the ada
Epilepsy: Todd v. Academy Corp., 57 F. Supp. 2d 448, 452-54 (S.D.
Tex. 1999).
Diabetes: Orr v. Wal-Mart Stores, Inc., 297 F.3d 720, 724-25 (8th
Cir. 2002).
Intellectual & Developmental Disabilities (``mental retardation''):
Littleton v. Wal-Mart Stores, Inc., No. 05-12770, 2007 WL 1379986, at
*2-4 (11th Cir. 2007).
Bipolar Disorder: Johnson v. North Carolina Dep't of Health and
Human Servs., 454 F. Supp. 2d 467, 473-74 (M.D.N.C. 2006).
Multiple Sclerosis: Sorensen v. University of Utah Hosp., 194 F.3d
1084, 1087-89 (10th Cir. 1999).
Hard of Hearing: Eckhaus v. Consolidated Rail Corp., No. Civ. 00-
5748 (WGB), 2003 WL 23205042, at *8-10 (D.N.J. 2003).
Vision in Only One Eye: Albertson's, Inc. v. Kirkingburg, 527 U.S.
555, 562-67 (1999).
Post-Traumatic Stress Disorder: Rohan v. Networks Presentations
LLC, 375 F.3d 266, 273-78 (4th Cir. 2004).
Heart Disease: Epstein v. Kalvin-Miller Intern., Inc., 100 F. Supp.
2d 222, 224-29 (S.D.N.Y. 2000).
Depression: McMullin v. Ashcroft, 337 F. Supp. 2d 1281, 1294-99 (D.
Wyo. 2004).
HIV Infection: Cruz Carrillo v. AMR Eagle, Inc., 148 F. Supp. 2d
142, 144-46 (D.P.R. 2001).
Asthma: Tangires v. Johns Hopkins Hosp., 79 F. Supp. 2d 587, 594-96
(D. Md. 2000).
Asbestosis: Robinson v. Global Marine Drilling Co., 101 F.3d 35,
36-37 (5th Cir. 1996).
Back Injury: Wood v. Crown Redi-Mix, Inc., 339 F.3d 682, 685-86
(8th Cir. 2003).
______
APPENDIX B.--The Effect of the Supreme Court's Decisions on Americans
With Disabilities
The following stories illustrate many of the problems that the
Supreme Court has created for people with disabilities who seek
protection from disability discrimination in employment. Through a
series of decisions interpreting the Americans with Disabilities Act of
1990 (``ADA''), the Supreme Court has narrowed the law in ways that
Congress never intended. First, in a trio of decisions decided in June
1999, the Supreme Court ruled that mitigating measures--medication,
prosthetics, hearing aids, other auxiliary devices, diet and exercise,
or any other treatment--must be considered in determining whether an
individual has a disability under the ADA.\1\ This means people with
serious health conditions who are fortunate enough to find a treatment
that makes them more capable and independent--and more able to work--
often find that they are not protected by the ADA at all. Next, in a
2002 decision, the Supreme Court emphasized that courts should
interpret the definition of ``disability'' strictly in order to create
a demanding standard for qualifying as disabled.\2\
In the wake of these restrictive rulings, individuals who Congress
intended to protect--people with epilepsy, diabetes, cancer, HIV,
mental illness--have been denied protection from disability
discrimination. Either, the courts say, the person is impaired but not
impaired enough to substantially limit a major life activity (like
walking or working), or the impairment substantially limits something--
like liver function--that does not qualify as a ``major life
activity.'' Courts even deny ADA protection when the employer freely
admits it terminated someone's employment because of their disability.
This has resulted in an absurd Catch-22 where an employer may say a
person is ``too disabled'' to do the job but not ``disabled enough'' to
be protected by the law. This is not what Congress intended.
Congress never intended to exclude people like Charles Irvin
Littleton, Jr., Mary Ann Pimental, Carey McClure, Stephen Orr, or James
Todd. Their stories are among those collected below, which demonstrate
the problem created by the courts' misinterpretation of the definition
of disability. These stories make it clear this problem is not limited
to a single judge, employer, or geographic area. This is a nationwide
problem that requires an appropriate congressional fix.
______
State: Alabama
Disability: Intellectual & Developmental Disabilities
Courts: 11th Circuit 2007 (AL, FL, GA)
charles irvin littleton, jr.
Charles Littleton is a 29-year-old man who was diagnosed with
intellectual and developmental disabilities* as a young child.
---------------------------------------------------------------------------
* ``Intellectual and developmental disabilities'' are preferred
terms in the disability community. The term ``mental retardation'' is
used in this description only in direct quotes from the court's
opinion.
---------------------------------------------------------------------------
A high school graduate with a certificate in special education,
Charles lives at home with his mother and receives social security
benefits.\3\ In an effort to work, Charles has been a client of several
State agencies and public service organizations, including the Alabama
Independent Living Center, that provide vocational assistance to people
with disabilities.\4\
In 2003, Charles' job counselor at the Independent Living Center
helped Charles get an interview for a position as a cart-pusher at a
local Wal-Mart store in Leeds, Alabama.\5\ The job counselor asked Wal-
Mart if she could accompany Charles in his interview, and Wal-Mart's
personnel manager agreed. When they got to the store, however, the job
counselor was not allowed into the interview. The interview did not go
well for Charles and Wal-Mart refused to hire him. According to Wal-
Mart, he was not hired because he displayed ``poor interpersonal
skills'' and a lack of ``enthusias[m] about working at Wal-Mart.'' \6\
Charles felt that he had been discriminated against based on Wal-
Mart's refusal to allow his job counselor to accompany him in the
interview as previously agreed, and decided to file a claim under the
ADA. But no court ever reached the question of whether Charles was
qualified for the job, whether Wal-Mart discriminated against Charles
because of his disability, or whether Wal-Mart violated the law by not
modifying its policies to allow a job counselor to accompany Charles.
Instead, the courts simply ruled that Charles Littleton was not
``disabled'' under the ADA:
We do not doubt that Littleton has certain limitations
because of his mental retardation. In order to qualify as
``disabled'' under the ADA, however, Littleton has the burden
of proving that he actually is . . . substantially limited as
to ``major life activities'' under the ADA.\7\
Noting the Supreme Court's ``demanding standard for qualifying as
disabled,'' \8\ the courts found that ``there is no evidence to support
Littleton's necessary contention that his retardation substantially
limits him in one or more major life activities.'' \9\
Charles first tried to show that he was substantially limited in
the major life activities of thinking, learning, communicating, and
social interaction. Charles explained that:
his cognitive ability is (according to his job counselor)
comparable to that of an 8-year-old\10\;
he needed a job counselor during the interview process and
on the job with him after hiring, until he became familiar with the
routine \11\;
his own testimony demonstrated ``difficulty thinking and
communicating'' as the courts, themselves, acknowledged \12\;
the reason Wal-Mart's personnel manager originally agreed
to allow Charles' job counselor to accompany him to his interview was
precisely because of his difficulty communicating and interacting with
others \13\; and
according to the Supreme Court: ``[c]linical definitions
of mental retardation require not only subaverage intellectual
functioning, but also significant limitations in adaptive skills such
as communication, self-care, and self-direction . . . [People with
mental retardation] by definition . . . have diminished capacities to
understand and process information, to communicate, to abstract from
mistakes and learn from experience, to engage in logical reasoning, to
control impulses, and to understand the reactions of others.'' \14\
The courts were not persuaded.
``It is unclear whether thinking, communicating and social
interaction are `major life activities' under the ADA,'' the Court of
Appeals for the 11th Circuit stated.\15\ Even assuming that they are,
the court relied on Charles' ability to drive a car as evidence that
Charles was not substantially limited in his ability to think. In
addition, the appellate court found that ``[a]ny difficulty Littleton
has with communicating does not appear to be a substantial limitation''
since Charles' mother and job counselor testified that, among other
things, Charles is ``very verbal.'' \16\
The court acknowledged that Charles ``is somewhat limited in his
ability to learn because of his mental retardation,'' but concluded
that this did not substantially limit his ability to learn. According
to the appellate court, ``Littleton is able to read and comprehend and
perform various types of jobs.'' \17\
Charles also tried to show that he was substantially limited in the
major life activity of working. He explained that he receives social
security disability benefits, which are granted only to those who are
unable to work by reason of a medically determinable physical or mental
impairment. He also explained that the only jobs that he ever held
involved stocking shelves at supermarkets, custodial work, and a summer
job as a recreational aide. He required application assistance and a
job coach for all of them.\18\ The appellate court concluded that while
Charles was not hired for the cart-pusher job, there were other jobs he
could do and, therefore, he was not substantially limited in his
ability to work.\19\
State: Texas
Disability: Epilepsy
Court: Southern District Texas 1999
james todd
James Todd has lived with epilepsy since he was 5 years old. While
medication helps to minimize the duration and intensity of his
seizures, it does not cure his epilepsy--he still has seizures about
once a week. His seizures follow a familiar pattern, beginning with a
tingling sensation that signals the onset of a seizure. During a
seizure, which can last anywhere from 5 to 15 seconds, James is unable
to speak, the left side of his body shakes involuntarily, and his
thinking becomes clouded. James removes himself from the company of
others as soon as he feels a seizure coming on, and lies down until the
seizure is over.\20\
In September of 1996, sporting goods giant Academy Corporation
hired James as a stocking clerk, whose job it was to inventory and
stock merchandise. James made approximately $5.00/hour on the job.
Several weeks into the job, James had his first seizure at work, told
his supervisors he had epilepsy, and explained how to respond if he had
a seizure at work.\21\
Five months later, after James had been out sick with a stomach flu
for 5 consecutive days, Academy fired him. Although James had notified
his supervisor of his illness and absence each day, as required by the
company's written work policy, Academy told him that he had violated an
``unwritten policy'' that prohibits taking more than 3 consecutive days
off without sick leave or vacation leave, when the FMLA does not cover
the situation. James decided to challenge Academy's decision to fire
him, and filed a complaint under the ADA.\22\
The district court never reached the question of whether James had
been fired because of his epilepsy. Instead, the court concluded that
since James was able to manage his seizures with medication, he was not
disabled enough to claim protection under the ADA in the first
place.\23\
Had James Todd's case been decided just 2 months earlier, before
the Supreme Court's decision in Sutton v. United Airlines, James would
have received protection under the ADA. As the district court noted,
before Sutton,
epilepsy would, without question, be considered a substantial
limitation on several major life activities, and a person
suffering from epilepsy would receive nearly automatic ADA
protection.\24\
However, after Sutton, the court explained that it needed to
consider whether James was substantially limited in a major life
activity after taking into account how well James' epilepsy medication
worked for him. Under that analysis, James was not disabled: ``[e]xcept
for a time period of 15 seconds per week, [James] is able to work,
walk, talk, think and learn'' and thus ``cannot be considered
`disabled' under the ADA.'' \25\ The fact that James lay shaking on the
floor and unable to talk for 15 seconds per week amounts to ``only'' a
``momentary physical limitation[] which could not be classified as
substantial.'' \26\
State: New Hampshire
Disability: Breast Cancer
Court: New Hampshire District Court 2002
mary ann pimental
Mary Ann Pimental was a registered nurse who lived in Hudson, New
Hampshire with her husband and two children and worked in a hospital.
Five years into her job as a staff nurse, the hospital promoted Mary
Ann to its nurse management team. A little more than a year later, Mary
Ann was diagnosed with stage III breast cancer.\27\
Mary Ann initially took time from work to undergo surgery
(mastectomy) and follow-up treatment (chemotherapy and radiation
therapy). While Mary Ann was hospitalized and receiving treatment for
cancer, the hospital reorganized its management team and eliminated
Mary Ann's position. When Mary Ann was able to return to work, she
applied for several different positions but was not hired. The hospital
finally rehired her into a staff nurse position that provided only 20
hours of work each week. As a result, Mary Ann was not eligible for
higher benefits offered to employees working 30 or more hours each
week.\28\
Given her strong work history, and because she was asked about her
ongoing cancer treatments and ability to handle work with the stress of
battling cancer, Mary Ann believed that the hospital failed to rehire
her into a better position because of her breast cancer. She decided to
challenge these decisions, and filed a claim under the ADA.\29\
The hospital argued that she wasn't protected by the ADA because
she didn't have a ``disability.'' \30\
So Mary Ann provided highly personal, sometimes embarrassing,
evidence to her employer and the courts of how her impairment--breast
cancer--impacted her life in a severe and substantial way. That impact
included:
hospitalization for a mastectomy, chemotherapy, and
radiation therapy;
problems concentrating, memory loss, extreme fatigue, and
shortness of breath;
premature menopause brought on by chemotherapy, and burns
from radiation therapy;
problems in her shoulder resulting in an inability to lift
her left arm over her head;
sleep-deprivation caused by nightmares about dying from
the cancer;
difficulty in intimate relations with her husband because
of premature menopause and Mary Ann's discomfort and self-consciousness
following the mastectomy; and
the need for assistance from her husband and mother in
order to care for herself and for the couple's two children because of
extreme fatigue, and difficulties performing basic tasks like climbing
stairs or carrying household items.\31\
When Mary Ann returned to work she still was undergoing radiation
therapy and experiencing fatigue. She still could not lift her arm
above her head, still experienced concentration and memory problems,
and still received help at home from her husband and mother.\32\
The district court never reached the question of whether Mary Ann's
breast cancer played a role in her failure to be rehired into a better
management position. Instead, the court agreed with the hospital that
``the most substantial side effects [of Mary Ann's breast cancer and
treatment] were (relatively speaking) short-lived'' and therefore
``they did not have a substantial and lasting effect on the major
activities of her daily life.'' \33\ Because MaryAnn failed to show she
was limited by the breast cancer on a ``permanent or long-term basis,''
she was held not to have a ``disability'' under the ADA.\34\
The district court also relied on Mary Ann's assertions that her
cancer ``did not substantially impair her ability to perform various
tasks associated with her employment.'' This assertion, according to
the court, undermined Mary Ann's claim that the cancer had
substantially affected her ability to care for herself on a long-term
basis.\35\
Mary Ann Pimental died of breast cancer 4 months after the court
issued this decision.
State: Nebraska
Disability: Diabetes
Court: 8th Circuit 2002 (AR, IA, MN, MO, NE, ND, SD)
stephen orr
Stephen Orr was a pharmacist at Wal-Mart in Chandron, Nebraska, a
town of 6,000 nestled in the rural northwestern part of the State.
Stephen was hired in early 1998. During his interview, he told his
soon-to-be boss that he had diabetes and needed to take regular,
uninterrupted lunch breaks. Stephen was authorized to take a 30-minute
lunch break during his 10-hour work shift.\36\
Doctors diagnosed Stephen with diabetes in 1986. He requires
multiple injections of insulin daily and uses a device called a
glucometer to monitor his blood sugar levels. In order to keep his
blood sugar stable, Stephen follows a regimented diet, monitoring what
and when he eats in coordination with his medication regimen. If he
does not, he experiences episodes of either hypoglycemia (low blood
sugar) or hyperglycemia (high blood sugar).\37\
When his blood sugar levels are not in his target range, Stephen
experiences:
seizures;
deteriorated vision;
trouble talking;
the need to urinate frequently;
loss of consciousness;
lack of physical strength and energy;
coordination problems;
difficulty reading or typing; and
impaired concentration and memory.\38\
Complications caused by fluctuating blood sugar levels can, and
have, resulted in hospitalization.\39\
After he started working, Stephen took lunch breaks as agreed,
closing the pharmacy to eat without being interrupted.\40\ During this
time, Stephen did not experience severe hypoglycemia and performed his
job well.\41\ No one complained about the pharmacy being closed for the
half hour that Stephen was taking lunch.
When a new district manager took over, he told Stephen to stop
closing the pharmacy, and to eat lunch whenever possible during down
times in the pharmacy.\42\
Stephen obeyed this order, but started having problems with low
blood sugar because he was no longer able to control the times that he
ate. Stephen told his new boss that, because of the no-lunch-break
order, he had experienced several hypoglycemic incidents and that he
needed to resume his noon lunch breaks to control his blood sugar.
Stephen's boss continued to deny the request for a lunch break and
ultimately fired him.\43\
Stephen decided to challenge his firing and filed a claim against
Wal-Mart under the ADA.
Wal-Mart responded that Stephen did not have a ``disability''
because Stephen was able to manage his diabetes with insulin and
diet.\44\
The courts agreed. Because the Supreme Court directed courts to
consider ``mitigating measures'' in deciding whether an individual has
a disability, the Court of Appeals for the 8th Circuit found that
Stephen did so well managing his condition that he was not disabled
enough to be protected by the ADA.\45\
Wal-Mart's refusal to allow Stephen to take a lunch break was never
questioned.
Although Wal-Mart vigorously defended its refusal to allow Stephen
a lunch break, Wal-Mart voluntarily changed company policy in 2000 to
allow one-pharmacist pharmacies to close for 30 minutes at lunch
because of ``retention'' problems.\46\
State: Texas
Disability: Muscular Dystrophy
Court: 5th Circuit 2003 (LA, MS, TX)
carey mcclure
Since age 15, Carey McClure has had a form of muscular dystrophy
that affects the muscles in his upper arms and shoulders. Carey has
difficulty raising his arms above shoulder level and has constant pain
in his shoulders. In his work as a professional electrician, Carey
performs most of his job functions without modification, and has
adapted how he performs overhead tasks like changing light fixtures or
working on ceiling wiring. Carey performs these job functions by (a)
throwing his arms over his head to perform the work, (b) repositioning
his body so that he can raise his arms, (c) supporting his arms on an
adjacent ladder, or (d) using a ladder, step-stool, or hydraulic lift
so that it is not necessary for him to raise his arms above shoulder
level.\47\
Carey was living in Georgia and had 20 years of experience working
as an electrician when he applied for a better opportunity at a General
Motors' assembly plant in Arlington, Texas. GM offered Carey the job
pending completion of a pre-employment physical examination. During
that exam, GM's physician asked Carey to raise his arms above his head.
When he saw that Carey could only get his arms to shoulder level, the
physician asked how Carey would perform overhead work. Carey, who had
performed such work in the past, responded that he would use a ladder.
Despite the fact that other electricians in the plant often used
ladders or hydraulic lifts to do overhead work, the physician revoked
GM's offer of employment.\48\
Carey challenged GM's decision. Eventhough GM revoked its job offer
because of limitations resulting from Carey's muscular dystrophy,\49\
GM argued that Carey did not have a ``disability'' and was not
protected by the ADA.\50\
Carey responded with highly personal information regarding the many
ways that his muscular dystrophy limits his daily life activities.
Carey explained that:
he is able to wash his hair, brush his teeth, and comb his
hair only by supporting one arm with the other;
he wears button down shirts because it is too difficult
for him to pull a t-shirt over his head;
he must rest his elbows on the table in order to eat, and
lowers his head down over the plate so that he can get the food to his
mouth;
he cannot exercise or play sports, and cannot care for his
grandchildren by himself; and
his ability to engage in sexual activities is limited by
his muscular dystrophy.\51\
GM argued that--because Carey had adapted so well--he was not
substantially limited in any major life activity.\52\
The courts agreed. According to the Court of Appeals for the 5th
Circuit,
[Carey] has adapted how he bathes, combs his hair, brushes his
teeth, dresses, eats, and performs manual tasks by supporting
one arm with the other, repositioning his body, or using a
step-stool or ladder. . . . [Carey's] ability to overcome the
obstacles that life has placed in his path is admirable. In
light of this ability, however, we cannot say that the record
supports the conclusion that his impairment substantially
limits his ability to engage in one or more major life
activities.\53\
Because the courts found that Carey did not have a ``disability,''
GM's decision to revoke his offer because of limits resulting from his
muscular dystrophy was never questioned.
State: Utah
Disability: Multiple Sclerosis
Court: 10th Circuit 1999 (CO, KS, NM, OK, UT, WY)
laura sorensen
Laura Sorensen started working as a clinical nurse for the
University of Utah Hospital in 1990. A year later, the Hospital hired
her to work as a flight nurse for its helicopter ambulance service.\54\
Two years into her dream job, Laura was diagnosed with multiple
sclerosis and hospitalized for 5 days.
Laura's physician cleared her to return to work within 2 weeks, but
Laura's supervisors initially refused to allow her to return as a
flight nurse. Laura agreed to return as a regular nurse for an
evaluation period, during which time she worked successfully in the
burn unit, the surgical intensive care unit, and emergency room. After
a 2-month evaluation period, a neurologist examined Laura and cleared
her to return to work as a flight nurse.\55\
Laura's AirMed supervisor still refused to allow Laura to return in
the flight nurse position because the neurologist could not guarantee
that Laura would never experience symptoms related to her multiple
sclerosis while on duty. Laura's AirMed supervisor felt that this
justified his decision to keep Laura grounded indefinitely.\56\
Laura continued working for the Hospital for a few more months,
resigning after it became clear that she would never be allowed to work
as a flight nurse.\57\
Laura believed, consistent with her evaluating neurologist, that
she could perform the flight nurse job safely. Because she felt that
she was demoted because of unjustified fears about her disability,
Laura decided to challenge the Hospital's decision.\58\
The Hospital responded that Laura's multiple sclerosis did not
qualify as a ``disability'' under the ADA, eventhough it was the sole
reason that Laura was barred from working as a flight nurse.
The courts agreed.\59\
According to the Court of Appeals for the 10th Circuit, eventhough
Laura ``could not perform any life activities during her
hospitalization,'' her hospital stay had not been permanent or long-
term enough to qualify Laura as disabled under the ADA.\60\ And
eventhough the Hospital based its decision on Laura's multiple
sclerosis, its refusal to hire her in the ``single job'' of flight
nurse was not enough to show that it regarded her as disabled.\61\
In an interview with the Salt Lake Tribune following the court's
dismissal of her case, Laura explained that ``[t]he university took a
red paintbrush and put a scarlet `MS' on my forehead. I was a disease
from that point on. I can do that job--that's the bottom line.'' \62\
Laura proved this point by leaving Utah briefly to work as a flight
nurse in Arizona. Upon her return to Utah, Laura won the Utah Emergency
Room Nurse of the Year Award,\63\ but still has not been allowed to
work as a flight nurse in her home State.
State: Florida
Disability: Epilepsy
Courts: 11th Circuit 2001 (AL, FL, GA)
charlotte chenoweth
Charlotte Chenoweth is a registered nurse from rural Florida with
over 15 years of nursing experience. In 1995, Charlotte started working
for the county health department, where she reviews the files of
hospital patients for whom the County is financially responsible.\64\
Two years into her job with the county, Charlotte had a seizure and
was diagnosed with epilepsy. Her doctor put Charlotte on an anti-
seizure medication and advised her not to use a stove or bathe alone,
and not to drive until she had gone 6 months without another
seizure.\65\ Charlotte's anti-seizure medication also increases the
risks of having a child with birth defects, and Charlotte decided not
to have children as a result.\66\
During the 6-month period after starting anti-seizure medication,
Charlotte asked the health department if she could do document review
work from home for 2 days per week as she and others had done in the
past or, alternatively, if her hours could be varied slightly to allow
friends and family to drive her to work.\67\ The health department
refused. Believing that her requests were reasonable, Charlotte decided
to challenge the county's decisions.\68\
The county initially agreed that epilepsy is a disability under the
ADA. But, while Charlotte's case was still pending, the Supreme Court
issued its 1999 ``mitigating measures'' decisions, and the county
retracted this admission. Following those decisions, the county started
arguing that Charlotte's epilepsy did not qualify as a ``disability''
and that she was not protected by the ADA at all.\69\
The courts agreed. Eventhough Charlotte had been unable to cook,
bathe by herself, or drive until she had gone 6 months without a
seizure, the Court of Appeals for the 11th Circuit found that Charlotte
was not ``disabled'' because none of these activities are ``major life
activities'' under the ADA. Though it recognized that having children
is a major life activity, the court refused to consider whether
Charlotte had a ``disability'' because of limitations on her ability to
have children due to the increased risk of birth defects from her anti-
seizure medication. The court dismissed this evidence that Charlotte
meets the ADA's definition of ``disability'' as irrelevant to her work
for the county.\70\
State: Wyoming
Disability: Depression
Court: D. Wyoming 2004
michael mcmullin
Michael McMullin has lived and worked as a law enforcement officer
in Wyoming his entire adult life. In 1973, he started his career as an
officer with the Casper, Wyoming Police Department. Thirteen years into
that job, Michael started experiencing symptoms of depression,
including insomnia and severe sleep deprivation. After struggling with
these symptoms for a few years--during which he periodically got only
2-3 hours of sleep a night--Michael became suicidal and sought medical
leave and assistance. His physician referred him to a psychiatrist, who
diagnosed Michael with clinical depression and prescribed medication to
treat his depression, insomnia, and sleep deprivation. This treatment
controlled Michael's symptoms and he was able to return to work after 5
months of medical leave.\71\
Michael stayed with the Casper Police Department for another 8
years, receiving numerous awards and commendations. In 1996, Michael
left Casper and moved to Cheyenne, Wyoming where he was hired by the
Capitol Police Department to provide security and protection to the
Wyoming Governor and First Family. At the time of his hiring, Michael
told the Capitol Police Department about his clinical depression, and
asked that he not be assigned regularly to the graveyard shift. Michael
successfully served as a security officer for the Governor for 5 years,
until 2001, when he decided to apply for a job as a court security
officer at the Federal building in Cheyenne.\72\
Michael again disclosed his clinical depression when he applied for
employment and was assured that--as long as his depression was under
control and treated with medication--it would not pose an obstacle to
employment as a court security officer. Michael took the required pre-
employment medical examination and answered questions about his medical
history and use of medication. The examining physician found that
Michael could perform the job without limitation, and Michael started
working as a court security officer.\73\
Michael performed the job without any complaints from supervisors
until another doctor reviewed his medical files and decided that he was
``not medically qualified'' because of his depression and use of
medication.\74\ Michael was suspended without pay, and was then
medically disqualified from working as a court security officer.
Michael filed an internal appeal, providing his previous employment
evaluations--including those from the State of Wyoming--and letters
from doctors stating that he was fully capable of performing law
enforcement duties. After his internal appeal was denied, Michael
decided to challenge his medical disqualification and filed claims of
disability discrimination under the ADA and the Rehabilitation Act of
1973.\75\
After firing him because of his clinical depression, his employers
argued that Michael's depression did not qualify as a ``disability''
under Federal law, eventhough it was the admitted basis for its
termination decision.\76\
The court agreed.
Because Michael's medication successfully managed his symptoms, his
depression was not disabling enough. With regard to his history of
sleep deprivation and insomnia, the court decided that:
Sleep deprivation which results in a plaintiff getting only
2-3 hours of sleep per night is not ``severe'' enough to
constitute a substantial limitation on the major life activity
of sleeping.\77\
As for limitations on his ability to work, the court found that--
while he had been excluded from working as a court security officer--
Michael was still able to perform other jobs and, therefore, was not
substantially limited in his ability to work.\78\ Eventhough his
depression had prevented him from working in the past, the ``5-month
period in which [Michael] actually missed work in 1988 was of limited
duration; this weighs against a finding of substantial limitation.''
\79\ Finally, his employers had not ``regarded'' Michael as disabled
because they had only barred him from ``a single job rather than a
class of jobs.'' \80\
Because ``[t]he definition of disability is the same for claims
under either the ADA or Rehabilitation Act,'' the court dismissed
Michael's disability discrimination claims under both laws.\81\ As a
result, his employers' decision to rescind their initial medical
clearance and to ignore Michael's 30 years of law enforcement
experience went unchallenged.
The court recognized the unfairness of this result, but said that
its hands were tied by current interpretations of the law, noting that:
[t]his is one of the rare, but not unheard of, cases in which many of
the plaintiff 's claims are favored by equity, but foreclosed by the
law.\82\
References Cited
1. 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).
2. Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S.
184, 197 (2002).
3. Littleton v. Wal-Mart Stores, Inc., No. 05-12770, 2007 WL 1379986,
at *1 (11th Cir. May 11, 2007).
4. Brief for Appellant, 2005 WL 4720205, at *3 (No. 05-12770FF).
5. Littleton, 2007 WL 1379986, at *1; Brief for Appellant at *4.
6. Brief for Appellant at *29.
7. Littleton, 2007 WL 1379986, at *4.
8. Id. at *2 (quoting Toyota Motor Mfg. v. Williams, 534 U.S. 184, 197
(2002)).
9. Id.
10. Brief for Appellant at *8, *34.
11. Id. at *21.
12. Littleton, 2007 WL 1379986, at *3.
13. Brief for Appellant at *29.
14. Id. at *27 (quoting Atkins v. Virginia, 536 U.S. 304, 318 (2002))
(emphasis added).
15. Littleton, 2007 WL 1379986, at *3.
16. Id. at *4.
17. Id.
18. Brief for Appellant at *34-35.
19. Littleton, 2007 WL 1379986, at *3.
20. Todd v. Academy Corp., 57 F. Supp. 2d 448, 449-50 (S.D. Tex. 1999).
21. Id. at 450.
22. Id. at 450-51.
23. Id. at 454.
24. Id. at 452.
25. Id at 454.
26. Id. at 453-54.
27. Pimental v. Dartmouth-Hitchcock Clinic, 236 F. Supp. 2d 177, 179-80
(D.N.H. 2002).
28. Id. at 180.
29. Id. at 179-80, 186-87.
30. Brief for Defendant, 2002 WL 33016261 (No. CV-01-292-M).
31. Pimental, 236 F. Supp. 2d at 183-85; Brief for Defendant at
para.para. 14-16.
32. Brief for Defendant at para.para. 14-16.
33. Pimental, 236 F. Supp. 2d at 183.
34. Id. at 184.
35. Id. at 183.
36. On v. Wal-Mart Stores, Inc., 297 F.3d 720, 722 (8th Cir. 2002).
37. Id.
38. Id.; Orr, 297 F.3d at 726 (Lay, J. dissenting); Brief for Appellee,
2001 WL 34156010, at *15-16 (No. 01-2959).
39. Orr, 297 F.3d at 727 (Lay, J., dissenting).
40. Id. at 722.
41. Brief for Appellee at *11-12.
42. Orr, 297 F.3d at 722.
43. Id. at 723.
44. Brief for Appellee at *17.
45. Orr, 297 F.3d at 724.
46. Id. at 727 n.9 (Lay, J., dissenting); Brief for Appellee at *16,
44-45.
47. McClure v. General Motors Corp., 75 Fed. Appx. 983, 2003 WL
21766539, at *1-2 (5th Cir. 2003); Brief for Appellant, 2003 WL
22452651, at *4-5 (No. 03-10126).
48. McClure, 2003 WL 21766539, at *3; Brief for Appellant at *5-8.
49. Brief for Appellant at *7.
50. Brief for Appellee, 2003 WL 22452652, at *5 (No. 03-10126).
51. McClure, 2003 WL 21766539, at *1-2; Brief for Appellant at *2-5,
18-23.
52. Brief for Appellee at *6.
53. McClure, 2003 WL 21766539, at *2.
54. Sorensen v. University of Utah Hosp., 194 F.3d 1084, 1085 (10th
Cir. 1999).
55. Id.
56. Id. at 1085-86.
57. Id. at 1086.
58. Id.
59. Id. at 1088-89.
60. Id. at 1087-88.
61. Id. at 1089.
62. Sheila R. McCann, Former Flight Nurse With MS Frustrated by
Disability Ruling, Salt Lake Trib., Apr. 6, 1998, at D1.
63. Id.
64. Chenoweth v. Hillsborough County, 250 F.3d 1328, 1329 (11th Cir.
2001).
65. Id.
66. Id.; Brief for Appellant, 2000 WL 33988759, at *4 (No. 00-10691-
EE).
67. Chenoweth, 250 F.3d at 1329; Brief for Appellant at *5.
68. Chenoweth, 250 F.3d at 1329.
69. Brief for Appellant at *9 n. 1.
70. Chenoweth, 250 F.3d at 1329-30.
71. McMullin v. Ashcroft, 337 F. Supp. 2d 1281, 1287, 1297 (D. Wyo.
2004).
72. Id. at 1287-88.
73. Id. at 1288.
74. Id. at 1289.
75. Id. at 1289-90.
76. Id. at 1294.
77. Id. at 1297.
78. Id. at 1296.
79. Id. at 1297.
80. Id. at 1298.
81. Id. at 1294.
82. Id. at 1286.
Senator Harkin. Thank you very much, Ms. Feldblum.
Thank you all very much for your testimonies. I think
therein you have, sort of, the spectrum of arguments on it that
I've heard thus far. Although, since we haven't really had too
many hearings on it, we haven't been really able to flesh out,
this being the first hearing, I'm sure we'll have more as we
move ahead on this, either later this year or after the first
of the year.
I'm going to ask Mr. Thornburgh, if I might. You've heard
these arguments. Now, it seems to me and I'll go down the line,
I wanted to read, again, the exact language, I paraphrased it
earlier in the day. You know, we pass laws here, I've been
doing this for 37 years, we pass a lot of laws in Congress, we
don't put into every law every little jot and tiddle of
everything it's supposed to cover. I mean, the U.S. Code is big
enough as it is. If we did that, it will fill every library in
this country.
So what we do is we pass laws that are fairly broad, but in
order to give instructions to the Court, we give report
language, that's why we have report language. We put in there
to guide courts as to what we meant by that.
We said in the report language that, ``whether a person has
a disability should be assessed without regard to the
availability of mitigating measures, such as reasonable
accommodations or auxiliary aids.'' Again, with that kind of
language, I'm so baffled after all these years--and reading
these court decisions, and the reasoning of the court--as to
why they wouldn't take that into account. And I just wonder,
Dick, if you could share any light on that, I'm wrestling with
this.
We put it in there, the House put in similar language, I'm
sorry, I don't have the House language, but it's basically
pretty similar. That we just said that mitigating
circumstances--I can't remember specifically. But I can sure
remember all of the hearings and investigations and testimony
that we had in those days, back in 1986, 1987, 1988, 1989, that
there were cases of--there were times when people would,
obviously, with the assistance of an aid--whether it was a
wheelchair or a prosthetics or whatever it might be, could get
a job. But we were still aware that they were being
discriminated against on a daily basis. I think that, my memory
serves me right, that's why we put that in there.
That's also why we put the language in, definition of
disability, ``As used in the ADA, the term disability means,
with respect to an individual, a physical or mental impairment
that substantially limits one or more of the major life
activities of such an individual,'' that's 504, ``a record of
such an impairment,'' or C, ``Be regarded as having such an
impairment.'' I remember, we wrestled for days, weeks, on that
language. And, it was different than that from where we
started, and we finally agreed on that language as being
regarded as having such an impairment. And we put that in for a
reason. Because, we knew that at times, people may not appear
to be disabled. To the eye, to the ear, to casual observation
and stuff, may not appear to be disabled in one or more
activities, but are, nonetheless, regarded as being disabled.
As I read these cases, I start to wrestle with this, I'm
wondering how, with all of this, could we have strayed so far
to the point now where we have these Catch-22 situations. And
later, I'm going to ask Ms. Olson to address some of those, as
to how they might approach them.
I guess what I'm asking, it may be an impossible question,
may be an impossible answer, is to help me think about, how did
we get so far off of this rule, what could the Court have been
thinking, and I guess from your testimony, you think that S.
1881 would be a proper response, is that what we have to do to
get it back on track again?
Kind of a convoluted question, I guess.
Mr. Thornburgh. Don't ask me to explain how the U.S.
Supreme Court operates, in this or any other situation,
Senator, I'm not privy--as you aren't--to their deliberations,
in detail. It does seem to me as a lawyer, however, that
reliance on legislative history is hardly a bizarre undertaking
in the normal case. But you and I are both aware that there has
been a back and forth on the U.S. Supreme Court for some time
between those justices who put more or less emphasis on the use
of legislative history.
I think you're right, I mean, you go to the well again, and
lay it out in no uncertain terms, again, and I think that's
about all that you can do. And I think that that's what this
bill does.
I certainly don't think that the types of situations that
have resulted in exclusion of persons from the coverage of the
act--as I said in my testimony--were ever contemplated by those
of us who were engaged in the storm and throng of debate that
led up to the passage of the bill. You have to look at it this
way, I think, why do we care if someone is covered by the ADA?
Why do we care if they have a disability that is entitled to
protection under the ADA?
It seems to me for two reasons. One is to protect them
against discrimination. That if they're defined as having a
particular disability and are discriminated against in the
workplace, we're talking about, today, they're entitled to some
relief.
Second, is that they're also entitled to have a reasonable
accommodation made to that disability, an accommodation that
doesn't place an undue burden on the employer, so that they can
assume their place in the workforce, notwithstanding the fact
that they have a disability. Those are two very crucial
determinations that turn upon what the proper definition of a
person with a disability is.
As I say, I think that by importing the definition from the
long-utilized and well-recognized provisions of the
Rehabilitation Act, that intention--to my view--could not have
been made more clear. Obviously, for reasons unknown to you and
me, the Court didn't agree, and that's why I think that you're
embarked on a proper course to make these fine-tuning
adjustments that restore the original intent that we all had.
Senator Harkin. It almost seems to me that the Court is
just kind of taking a standard that disabled means that you're
not able to do anything. That's sort of the standard. You're
disabled and you're not really able to do something, you're not
really able to work. It concerns me that there's a theme in
these cases that run through that, well, gee, you're able to
work and do something else, I mean if you've got a job, that
means you're not disabled but in some of these cases, it's the
difference between a job that a person can get that provides
them with some income, but it's not the job for which they are
really, fully capable of doing and trained to do. They can't
reach their full, maximum potential. It seems like the U.S.
Supreme Court said, ``Well, gee, if you can get a job bagging
groceries, then you're not disabled.'' But with a reasonable
accommodation, you can be a pharmacist.
It seems to me that's sort of what they're looking at, and
I'm trying to wrestle with that. And I don't know, that's just
sort of my reading of it, I don't know if that strikes a chord
with you about that we seem to be thinking about it that way,
that disabled just means, you're unable to do it. And that's
not what we intended when we wrote the ADA. Our intent was,
basically as you said, was to provide for the freedom for
people with disabilities to reach their full maximum potential.
As we will get into the questions in a little bit, here
it's not just proving a concern that you're disabled, you also
have to be qualified.
Sometimes we forget that. There's nothing in the law that
says you've got to hire someone just because they're disabled.
You still have to be qualified for that position. A lot of
times, we forget that.
Anyway, John Kemp, let me ask you. Ms. Olson said something
about, and I've heard this before, that if we pass this bill, a
person with headaches, things like that, will now be regarded
as disabled, and they can file for protections under the ADA.
How does that strike you?
Mr. Kemp. It strikes me as extreme, unfair, and I think the
definition is pretty clear, if we use the one in the
legislation that talks about a person with an impairment that
substantially limits a major life activity. These don't rise to
that level whatsoever.
Senator Harkin. I assume that you would respond and say,
``Well, that would be okay, but not under S. 1881,'' is that
right Ms. Olson?
Ms. Olson. The definition that was just described is the
definition of the ADA. The definition in S. 1881 is just the
showing that there is a mental or physical impairment, without
regard whether that mental or physical impairment impacts an
individual in such a way that any major life activity is
substantially limited, for any particular duration.
Again, I think it's particularly important to focus on
this, because where does the limitation exist, is S. 1881, in
connection with who wouldn't be covered as somebody who is
disabled.
Under S. 1881, having an impairment equates the person to
be disabled. Exactly what you were saying, Senator Harkin, in
terms of what you think that the courts are doing, with respect
to interpretations of the ADA, that's exactly what S. 1881
does. It says, I don't want to know the functionality of the
person. If I know that they have a condition, I'm labeling them
disabled, without regard as to whether or not they are. And
again, you have to look at it in the context where the ADA was
passed without a question, with significant compromise and
discussion between the business community, disability rights
groups and others in this country. Part of the reason is
because there are always limited resources in a workplace, and
employers do have obligations to provide affirmative steps to
assist disabled individuals in the workplace.
For example----
Senator Harkin. Ms. Olson, C, ``being regarded as having
such an impairment.'' Being regarded.
Ms. Olson. Yes.
Senator Harkin. Mr. Orr was regarded. I mean, how do you--
it's not that we say everybody's disabled or impaired, we say
it, that we are regarded as such, whether or not they were or
not, that is covered.
Ms. Olson. I would love to address for just a moment, Mr.
Orr's situation, if I may.
Senator Harkin. Sure.
Ms. Olson. With respect to Mr. Orr, unfortunately, his
attorney and his complaint in the case did not bring to the
court any allegation that the impairment that he had adversely
affected any major life function.
To make it very clear for this committee, his complaint
didn't include the allegation that he was substantially limited
in the major life activity of eating. It was a procedural
decision. It doesn't describe a defect of the Americans with
Disabilities Act, it describes a defect with the pleading and
the litigation that occurred in the case.
I'll give you another example, Senator Harkin. Had Mr.
Orr's attorney not filed the lawsuit until 95 days after
receiving a notice of Right to Sue, 5 days later in the
procedural time limit, in terms of filing that complaint, he
also would not have had a successful complaint. Yet, no one
could argue that that's a problem with the Americans with
Disabilities Act. It was a procedural issue that was missed.
In that particular case, even the dissent, notwithstanding
that particular issue being raised, it was a 2 to 1 decision,
that perhaps we ought to look beyond it, and look at the facts
that are being raised at the 8th Circuit.
Mr. Orr lost that case, not because he was regarded as
disabled. In that case, initially, the employer assumed that,
or made the determination that, in fact, in terms of his day-
to-day work, he was going to be entitled to a reasonable
accommodation, implemented it, and then at some point made the
determination--which we may disagree with or agree with. But,
in fact, it was an undue hardship for the employer to continue
to close the pharmacy, because there was only one pharmacist on
duty during that lunch hour, when most people were coming in to
fill prescriptions.
We may all disagree and we may be frustrated with that
decision, but it is not a cause to change the Americans with
Disabilities Act to the broad definition that is being proposed
in the Senate bill.
Senator Harkin. I understand that Wal-Mart changed its
policy later on. Wal-Mart changed its policy later on to
exactly cover what Mr. Orr's situation was, Ms. Olson. Why did
they do that? I guess they're free to do that if they want? Or
are they free not to do that if they want?
Ms. Olson. I don't know the answer to that question.
Senator Harkin. Well, I'm just telling you, they did.
Ms. Olson. I understand that they did, but I don't know why
they did, which is what you asked.
Senator Harkin. Do you have a response to that Ms.
Feldblum?
Ms. Feldblum. Yes, I think that Ms. Olson has just made the
strongest case I have heard for why you've done the right thing
in S. 1881, for getting rid of the term ``substantially
limits'' a major life activity. Here's why, it's all about the
pleadings. It's all about whether you are now smart enough to
say, ``Well, actually, when I have diabetes, even though with a
medication that's now mitigating it, I'm still substantially
limited in eating.'' And here's why, because I have to remember
to take my food--and there are some cases where people have
argued that, although of course now you have to show that
you're severely restricted in eating, and so if you have to
think about whether you have to eat, then is that severe--she
has exactly described the state of ADA case law today.
Absolutely.
Whether Mr. Orr wins or not, is going to be about whether
his lawyer was smart enough to argue substantially limited in
eating.
I mean, if we hadn't had the Sutton case, and mitigating
measures weren't taken into account, the lawyer wouldn't have
had to argue about eating, because once you take mitigating
measures--when you don't take it into account, you're
substantially limited in lots of things.
OK, but here's a way you can get around it--sure, you can
write a law that says that. And you know what? To quote what I
often hear from the Chamber, that would be a nice employment
bill for lawyers. I don't think you want to write an employment
bill for lawyers. I think you want to write a simple, clear
bill that protects people who are discriminated against,
because of a physical or mental impairment.
Let's take the colds, let's take the flu. How many people
do you know, recently, who've been fired because they have a
cold or the flu? I don't know a lot that have been fired. I can
tell you that if you were fired and under the ADA, under the
``regarded as'' you could demonstrate that you were fired
because of that, you could have been protected. Pretty high
burden, but you could have done it.
Let's be clear--we are not worried about people being fired
for the cold. We are worried about people being fired because
they have epilepsy or diabetes or a mental illness that might
be mitigated with medication. But even if, God forbid, you want
to think about the cold, that was covered under the ``regarded
as'' prong. If you could show you were fired because of that.
That's why I said, the difference is the type of
discrimination that some of us face, and others don't. That's
what this Congress needs to care about.
Senator Harkin. Well, we could get into a nice debate here.
[Laughter.]
Ms. Olson, I'd just love to have a response on that, I mean
these are----
Ms. Olson. I do have a response.
Senator Harkin [continuing]. Logical arguments, go ahead.
Ms. Olson. I do have a response. Ms. Feldblum said that
Congress is not worried. And, in fact, nothing could be more
true then that statement. Individuals with minor, temporary
impairments were never intended to be covered by the Americans
with Disabilities Act in 1990, and they should not be covered
today.
It is not just an issue of being terminated, because you
have a cold or a sprained ankle, because you were in a
basketball game on Saturday afternoon and you sprained your
ankle and you're requesting the closest parking space to the
door because of that.
It's a question also of reasonable accommodation, which
also includes the issue of sick leave. It includes the issue of
limited resources in the workplace. And the question is, who
under the Americans with Disabilities Act was intended to
benefit, to have those benefits. And the answer, under the
Rehabilitation Act, as well as the Americans with Disabilities
Act, are individuals who have a mental or physical impairment
that substantially limits a major life activity. That's
language that came right out of the Rehabilitation Act and if
you look at the cases, for every case that's--for every
condition that is listed on the chart behind you, Senator
Harkin, there is another case which I can cite to you, and many
of them are included in my written materials already that have
been submitted to this committee that show that under the
Rehabilitation Act, those conditions were determined to not be
disabilities, because although it was an impairment, the
impairment did not substantially limit the individual's major
life activities.
It's a functional approach, not an approach that's based on
labeling someone as having a particular condition. And that's
what the Americans with Disabilities Act has always been about.
Not labeling people, but looking at their abilities.
Senator Harkin. Ms. Olson, in 2007, you walked into someone
on the street and you saw that they was missing an arm, would
you say they were disabled?
Ms. Olson. There's no----
Senator Harkin. If you saw someone without an arm, would
you say they were disabled?
Ms. Olson [continuing]. There's no question that that
person has a physical impairment that in--I would imagine--
substantially limits major life activities, but I would have to
have more facts than just the facts you gave me to make a
determination.
Senator Harkin. Well, like what kind facts?
Ms. Olson. The facts would be, how are their major life
activities being affected by that loss?
Senator Harkin. Then really, it's kind of up to the courts,
then, to determine how much that person's life activity is
affected by the loss of that arm, is that right?
Ms. Olson. It is----
Senator Harkin. Courts have to determine that?
Ms. Olson. Under the Rehabilitation Act and under the
Americans with Disabilities Act, having a condition itself does
not define someone as disabled. That has always been the case,
even prior to the passage of the ADA.
Senator Harkin. So that, it almost seems that the better,
then, that a person has adapted to a disability, the less
likely they are to be determined to be disabled.
Ms. Olson. The more functional a person with a mental or
physical is----
Senator Harkin. Then the less they are likely to be
determined as disabled under, what, the ADA?
Ms. Olson. Under both statutes on the basis that they are
not a person that has functionally been limited in their
abilities to work, and they aren't the individuals who are
intended to be benefiting from affirmative obligations
employers are engaging in to assist them into the workplace,
because they are able, already functionally, to be there.
Senator Harkin. But it seems to me, then, we're in a
situation where--and I remember we went through this in the
1980's, Dick, we went through it where people said, ``you've
got to list every single disability.'' And we were coming up
with lists that were longer than this. And finally we said,
``We can't do that, we can't possibly list every single
disability and the extent to which it may impair a person's
abilities.'' And so that's why we came up with the definitions
that we did. And it almost seems what I'm hearing you saying is
that this person I ask you to describe, they don't have any
arms, do you consider them disabled, it's almost--to
paraphrase--it's almost saying, ``Well, I don't know, I'd have
to know how they function.''
Well, does that mean that someone who, then has adapted
better to medicine or something like that, or maybe diabetes,
well then they're less covered than someone else? The fact that
they both have diabetes? They both have an amputation? Or
missing a limb? It seems to me that that, by itself, de facto,
says that you are disabled.
Now, now you've got, you see if you've got that, then you
still then have to prove a couple of other things, you know.
That you're qualified for the job----
Ms. Olson. Not under S. 1881.
Senator Harkin. What?
Ms. Olson. Not under S. 1881, the burden shifts to the
employer to prove that you're qualified under the current
draft.
Senator Harkin. I don't believe that's so.
Ms. Feldblum.
Ms. Feldblum. Yes, let me address the qualified issue, and
then also, what I think is just some factual mistakes, and
since this is a hearing and I want to make sure the record is
clear.
First on the ``qualified.'' One of the things that S. 1881
does is simply make the language of ADA be comparable to the
language of Title VII of the Civil Rights Act of 1964,
something you were trying to do mostly in the ADA, but in a few
places we diverged, and under title VII, it says you can't
discriminate on the basis of race, sex or religion. And, in the
ADA, it said, you can't discriminate against a qualified
individual with a disability.
In S. 1881, the language now reads exactly like title VII,
``you may not discriminate on the basis of a disability.'' This
entire analysis of the burden shifting is coming from the fact
that the word qualified no longer appears in that first
section. It's not that you can't discriminate against a
qualified person with a disability, instead it's just like
title VII. That you may not discriminate on the basis of
disability.
So then you have to, so now it's going to be exactly like
title VII, the burden of proof will be exactly like title VII,
okay? What's the law under title VII? Right there in the
beginning of the plaintiff 's case, what's called the prima
facie case, under title VII, the fourth element that a
plaintiff has to prove is that they're qualified for the job,
because they're trying to raise an inference that they were
discriminated against based on race or sex. This will now be
the exact same rule for people with disabilities. They will
have the same burden of proof that exists under title VII. Why
should there be a different one for disability than for title
VII?
It is the same burden of proof that exists for anyone who
argues discrimination based on sex or religion or national
origin, which includes in the prima facie case a requirement
that you were qualified, that you could demonstrate some
evidence that you're qualified. It's not said in title VII,
it's the case law in title VII.
This entire brew ha-ha about the change of burden of proof,
is because the language is now going to look just like title
VII. I'm really curious as to whether now under title VII no
one has to prove that they're qualified as part of their prima
facie case.
I think employers will be very unhappy to hear that
plaintiffs don't have that requirement. Very unhappy.
I understand--I feel like this is--someone reads the text
and says, ``Oh my God, the word qualified has come out of this
sentence. I guess the whole burden of proof has shifted.'' I
would suggest that while that might be your first reading of
the text, it's not the correct legal ruling. And, if you want--
as you pass this bill, in your committee report, to make it
clear that the burden of proof on qualified remains exactly the
same, I don't think you will get any resistance from any of us
who care about disability rights.
Senator Harkin. That's why I was surprised at your
response, because I thought we'd put that in there. And so I
was asking Mr. Percy to get that for me, and it's in section 7
of the bill. That's why I'm wondering if you had an earlier
draft of the bill or something like that, because the qualified
individual is still in section 7.
Ms. Feldblum. Yes, the section 7, this is where they pick
up their defense issues, section 7 is also a set of defenses.
Basically, what we have done in the ADA, and what you continue
with S. 1881, even though the comment that you'd be qualified
doesn't appear in the text of title VII, it's just read in by
the courts, because often someone with a disability is, in
fact, not qualified--we all recognized, you basically say it
twice. So, you've moved it in section 7 to make it very clear,
we are not removing your defense. That you always had, you
still have it.
Senator Harkin. That you're not qualified.
Ms. Feldblum. That you're unqualified. You still have that
defense.
Ms. Olson. The current law is different. Under the
Americans with Disabilities Act it is absolutely clear that the
burden of proof today is not as an affirmative defense as an
employer to prove qualified, it is with the plaintiffs in the
case. That is a complete shift of the burden on that issue to
the defense as an affirmative defense.
There's a reason why title VII is different. There's a
reason why it's different. It's different because title VII
does not provide affirmative obligations on employers to
provide affirmative relief to individuals in a protected class.
Under title VII, you are protected no matter what your sex is,
because there are reverse discrimination claims. You are
protected no matter what your race is, what your national
origin or what your religion. It's different under the
Americans with Disabilities Act.
In addition, there's a policy reason as to why the burden
of proof on the issue of qualified is appropriately on the
plaintiff. And the reason is, employers are very limited by the
existing law as to what inquiries they can make in terms of
qualifications and abilities of existing employees. The facts
and terms of qualifications are held by the plaintiff, the
plaintiff in all of the cases--under the Rehab Act, and under
the Americans with Disabilities Act, have always found, that,
in fact the plaintiff has the burden of proving that it is not
a defense.
Ms. Feldblum. Well, I will be happy to submit to the
committee, by the way, a legal memo on this issue, which I
think should definitely set at rest any fears that this is
different from what the current requirements are. So, let us
leave it.
Senator Harkin. I have to find out more about that, because
I thought we basically had kept it more or less the same. You
still had to have another hurdle of showing qualified.
Of course there's always been the defense there that you
were not qualified, you always have that, the defense always
had that. How did I get off on that? That's an interesting
point of law, and it's something I think we have to look at.
I guess my point was that, and why I put that chart up
there, because these were all of the disabilities that were
covered in the Rehab Act, on the left, these were all covered
in the Rehab Act. Under the ADA today, those same ones are not
considered a disability.
Ms. Olson. I disagree with that statement, Senator.
Senator Harkin. OK.
Ms. Olson. There are cases that hold, under the Rehab Act,
that some of those conditions are not covered, because a
condition, per se, is not covered. It depends on what the
condition's impact is on the individual. No conditions are per
se covered, under the Rehabilitation Act as a disability. Under
both statutes, all of these conditions are generally referred
to as a mental or physical impairment. The question under both
statutes really is, are they a disability, because do they
functionally impact the individual in a major life function?
I disagree with your chart.
Senator Harkin. Well, these are the court cases, that's why
I put it up there.
Ms. Olson. I've included in my written testimony, the
examples that are different.
Senator Harkin. Chai Feldblum.
Ms. Feldblum. We have read all of the Rehabilitation Act
cases. Including the ones cited by Ms. Olson in her testimony.
In 99 percent of these cases, people were just held to be
people with handicaps. They just were. There was none of this
long analysis--are you really functioning well or not?
There were a few outlier cases--which she's managed to find
and cite all 12--where sometimes a court got connected up with,
I don't know, and are you really limited in working? They were
doing exactly what you were saying, Senator Harkin, that these
courts are focused on whether you can't work, when in fact the
whole point was that this was supposed to be a law that was
going to protect people who wanted to work. As I say, there
were a few of those outlier cases. These cases were discussed
in 1989 and 1990, because we said, ``Do we have to do something
to deal with these outlier cases? '' And the consensus decision
was, we don't, because what the U.S. Supreme Court just said in
the Arline case, all of those ones that were wrongly decided,
in our view, under the Rehabilitation Act, would now be taken
care of under the ``regarded as'' prong, and I have to correct
a misstatement of fact, here. That term that you said in
reports that ``temporary minor impairments are not covered,''
because they must substantially limit a major life activity--
you absolutely did say that in your reports, you said that
under prong 1 of the definition, as an explanation.
Under prong 3, you had clearly said, if someone is fired
because of an impairment, regardless of how minor, then they're
covered. There were a few of those cases, they were outlier
cases then, you thought you took care of them under the third
prong.
The U.S. Supreme Court has done two things to your words.
They've added this requirement of mitigating measures, that now
makes 99 percent of the cases not be covered, so you are not
wrong that if you looked at the number of cases of people with
epilepsy covered under the Rehab Act--tons. The number of cases
with people with epilepsy not covered? Not covered under the
ADA? Tons.
The mitigating measures point shifted so many people out of
coverage. And then what you thought was the failsafe, which was
the third prong, got messed up because of this requirement,
that the employers regard you as limited in a broad range of
jobs. That's it.
Oh, one last thing, on the per se--this idea that, Oh my
goodness, if you just assume that someone who doesn't have an
arm is a person with a disability, right away, that that's
somehow a group-based, per se, and counter to the
individualized assessment that you want for people, this is
what you said in your Senate Labor report, under the first
prong, ``substantially limits.''
For example, a person who is paraplegic will have a
substantial difficulty in the major life activity of walking. A
dead person will have a substantial difficulty in hearing oral
communications, and a person with lung disease will have a
substantial limitation in the major life activity of breathing.
Will have.
It doesn't matter if with the lung disease, now you took
your medication, and so now you're functioning well--no. You
thought groups of people would be considered disabled under
that first prong. We're worried about a group-based analysis.
You wanted the individualized assessment to see whether the
person with the paraplegia could do the job--that's the
individualized assessment, not as to whether they're covered.
Senator Harkin. No, that's good, one of the reasons why we
have these hearings is to make the record, and this is making
the record.
Let me ask every one of you, just this simply--I'm a
lawyer, but not a very good one.
[Laughter.]
Straightforward, nonlawyer type of question. Just in your
opinion, because of your background, is there a problem with
the Americans with Disabilities Act we have now, is there a
problem with the way that it's being interpreted. Is the way
the ADA now is impacting people's lives, does it need to be
changed, rectified, changed, does something need to be done? Or
is it fine just to go on the way we are?
Mr. Kemp.
Mr. Kemp. It needs to be changed. There are great
weaknesses in the definition. We have changed the way in which
we approach this, it's a discrimination on the basis of
disability is what is prohibited. There isn't a day that goes
by that I am not assigned or ascribed either super-ordinate
attributes, which is unreal and unfair, and not true. And most
of the time, there are perceptions of me that are quite
limiting and quite negative. And whether my prostheses help me
function independently, which they do, the third prong of the
definition is critical, because people still perceive me as
being less than a qualified individual, almost on a daily
basis.
We have got to get the definition back to where we thought
we had it, and where the record showed us in 1990.
Senator Harkin. OK.
Mr. Thornburgh.
Mr. Thornburgh. No question but what the act, as it's been
interpreted by the U.S. Supreme Court and other subordinate
courts has had a negative impact on persons with disabilities
who were involved in those cases. You're not going to address
them case by case, you're looking for a systemic solution, and
I think you have come up with a reasonable approach to making
sure that the original intent of those of us who were involved
in drafting this act is fulfilled.
I commend you for that, and I suggest it's good guidance
for your colleagues in both Houses, in passing this into law.
Senator Harkin. Thank you very much.
Mr. Orr, from your personal experience--I hope you're not a
lawyer, too.
Mr. Orr. No. That would be a real disability.
[Laughter.]
Senator Harkin. Just from your own personal experience. The
ADA as it is impacting people's lives now, does it need to be
changed?
Mr. Orr. Most definitely we need some clarification on the
ADA. I should not have been told by my employer that I could
not be able to have a lunch and be able to treat my diabetes.
And I was told in court responses that I was not disabled, and
I don't know of any of us here that does not need three squares
a day.
Senator Harkin. Do you have sufficient accommodation in
your job now?
Mr. Orr. Yes, I do. And----
Senator Harkin. Let me ask you this--and I thought I was
right, I thought I had read this, that after all of the dust
settled on your case, that Wal-Mart did change its policy, is
that the case?
Mr. Orr. Yes, they have. In the store that I was a
pharmacist, they now have a sign posted that the pharmacy will
be closed for a half an hour while the pharmacist takes a lunch
break when there's only one pharmacist on duty.
Senator Harkin. To me, that just says reams. Now, Ms. Olson
says it's because you had a bad lawyer. You know, that your
pleading wasn't right. You know, and I guess what we're trying
to do here, is to make it so that it doesn't just depend upon
the pleadings itself.
Mr. Orr. Well, I feel like if I would have had the language
in the ADA's intent, I should have had protection to be able to
have continued in the job that I had taken, and had hoped to
continue with.
Senator Harkin. Ms. Olson, the way the ADA impacts people's
lives today, does it need to be changed?
Ms. Olson. Thank you, Senator Harkin.
I'd like to be begin by saying, I recognize the frustration
that you've expressed today in this committee and that others
have expressed and have testified today, regarding the results
that have been reached in individual cases. The solution is not
the change that's been proposed in connection with S. 1881. S.
1881 is not consistent with legislative history, with the
language of the statute, that the language of the statute that
the Americans with Disabilities Act was based upon, the
Rehabilitation Act. It's not consistent with the balancing of
rights, and with the focus on the individuals who were intended
to be impacted by the Americans with Disabilities Act.
Senator Harkin. What is the solution? I can't change the
U.S. Supreme Court.
Ms. Olson I understand, and I understand you're having
hearings and that you're considering, and reviewing those
decisions to understand whether there may be some other
accommodations and I mean that word in a different way--some
other ways to look at some of the issues that have been raised
in these cases.
I am addressing----
Senator Harkin. Excuse me for interrupting--but getting
back to my initial question. Is the way the ADA is impacting
lives today, of people with disabilities, does it need to be
changed?
Ms. Olson. It is impacting the lives of individuals with
disabilities in a very positive way, as I've described at the
beginning of my testimony, and as I, and many human resource
professionals and employers who work on issues daily with
individuals in their workplaces that have disabilities.
Senator Harkin. But, I'm still trying to get to this, I
can't get an answer yes or no. I mean, if it does need to be
changed, I want to know how you think it ought to be changed,
if it doesn't need to be changed, say so. And then that's quite
clear cut--it gets down to the point--does Mr. Orr have a
disability or not? In your opinion, does he have a disability?
Ms. Olson. There's no question that there was a split in
the Court as to whether or not he has a disability, and----
Senator Harkin. I'm asking you--I'm not asking the Court.
You're here----
Ms. Olson [continuing]. I understand, but I think that's
important, as well, not just my opinion, Senator Harkin. My
opinion as a labor practitioner in this area is that----
Senator Harkin. You have a lot of knowledge in this area.
Ms. Olson [continuing]. My opinion is that based on the
facts as I read them before the 8th Circuit, that I would
conclude that he does have a disability, as described under the
Americans with Disabilities Act. But those weren't the facts
that were presented and that were before the 8th Circuit on the
lower court's decision. We can't make legislation based on an
inaccurate or inappropriate presentation of facts in a court
proceeding.
In connection with that particular case, I will tell you
that there's no question that in many, many cases involving the
exact same conditions that's presented by Mr. Orr, the courts
have concluded that the individual has a disability. The
particular information was not presented to the court, and, in
fact that wasn't the conclusion that was ultimately determined.
Senator Harkin. But it's not--not to get into a back and
forth here--but it's not one case. We have several cases. And
because those cases were at the U.S. Supreme Court level,
they've filtered down now through the appellants and down into
the lower courts. And so it's not just one case, it's hundreds
of cases, now it's thousands of cases to the point where the
latest statistic I saw was that 97 percent of the cases brought
are now judged not covered by ADA. Ninety-seven percent.
Ms. Olson. Senator Harkin----
Senator Harkin. Something's wrong there when it's 97
percent, something's wrong.
Ms. Olson [continuing]. Senator Harkin, the U.S. Supreme
Court isn't the body that imported the functional approach to
determining whether somebody has a disability into the law. The
legislative history, the act itself and the predecessor act, or
the related act, the Rehabilitation Act, all contain language
that support that approach. That approach is working in the
workplaces that I work with every day.
Senator Harkin. But it sure didn't work for Mr. Orr, nor is
it working for thousands of Americans out there today that are
facing this Catch-22 situation, Ms. Olson. Where if they take
any medicine to mitigate their diabetes or whatever it might
be, their epilepsy, let's take that, then they're qualified for
a job, then they become qualified, they can do that job. Once
they have that job, and the employer finds out they have
epilepsy, they can be fired, because they're no longer covered
by ADA.
That happens a lot in a real life today--and I see these
cases all the time--what happens is that a person with a
disability is caught--do I use a prosthetic, do I use a device,
do I take my medicine? I can get my job now, and I can not just
get a job bagging groceries, but I can get a job for which I'm
qualified. But then I lose all of my protections under the ADA.
Or, do I not take my medicine, and I'm covered by ADA but I
can't get the job. That is the real-life situation that
thousands--not just Mr. Orr, not just one or two cases--but
thousands and thousands of people with disabilities are
confronting every day in our country. When we talk about
passing legislation, I don't want to pass the bill just for Mr.
Orr. That's not what I'm here about, that's what none of us who
are here--to try to aleve a discrimination that's happening in
our society, that's what ADA was about, discrimination.
Now we're having the same kind of discrimination in a very
adverse way, in a way that Dick Thornburgh and John Kemp and I
and others worked so hard to get back in 1990.
Now, if people have suggestions on S. 1881 that it might
change, it might do something, I'm well open to that. But,
again, I think that the body of opinion--with all due respect,
Ms. Olson, is that something needs to be changed. And so, in
good faith we contacted you, to try to get as much information
on S. 1881, obviously, we have a long process to go through, if
people have suggestions and things like that on how it should
be shaped, or molded or changed--we're open to that. I don't
have a blind eye, here.
I was with Lowell Wicker when we started this whole
process, and what we started with is not exactly what we wound
up with. We were willing to work with people to make these
changes.
The situation, Ms. Olson, I will say to you, cries out for
something to be done, so that people aren't going in and aren't
faced with this dilemma that they're faced with now.
It happens, it's a real-life situation out there, it
happens every day. And that's why I'm so intent on trying to
get some legislation that will get back, as Mr. Kemp said, the
original intent. I can tell you, this was my bill, I spent a
lot of years of my life on this. And the intent was not to have
the courts say, ``Well, maybe you, and not you, maybe you and
not you, depending on how good you are at this and how bad you
are at that.'' If John Kemp uses his prosthesis better than you
then he's not disabled, but you are.
We went through all of this. We decided, no, we don't want
to get into that, we want this broadly covered, and that's why
we did that third prong, ``regarded as.'' If all else failed,
we had the catch, gotcha, on the ``regarded as'' if all else
failed.
It seems right now, what's happening is, that has been done
away with. I don't mean to get so passionate about that. Now if
you have suggestions and advice, I could look at that.
I'm sorry to take so long, Ms. Feldblum. My question I was
going to ask you was, Is the way the ADA is impacting lives
today, does it need to be changed?
Ms. Feldblum. Yes.
[Laughter.]
Senator Harkin. I guess you've expounded on it more than
that.
Ms. Feldblum. But, I mean, honestly, it does, for all of
the reasons you just said. And let's get to work, and let's try
to make that happen.
Senator Harkin. Like I said, I'm willing to take advice and
suggestions, but if someone says to me, ``No, it's perfectly
fine the way it is,'' that just doesn't seem right to me, it
doesn't seem like that's what I'm seeing out there. It's not
what I'm seeing and getting in from all kinds of things that
come into my office. I have a full-time person I've had ever
since I came into Congress, I've got a full-time staff just
working on disability issues, that's how much I care about this
issue. I've always had a full-time component of my staff, just
working on disability issues, good people, smart. This is why
I'm here, this is what's coming in. I didn't just dream this
up.
A lot of people--every disability group in this country is
coming to me saying, ``We've got to do something.'' Being a
public servant being a representative, I feel that we must
respond.
As I've looked at it, I have also come to the conclusion,
something must be done. I don't know if S. 1881 is the right
approach or not, I'm willing to debate that, I mean that's
open. But to say that things are fine and we can just sit
there, I don't accept that. I don't accept that.
Well, I've gone on too long, I sound like a witness myself.
[Laughter.]
Is there anything else that anybody would like to add? I've
kept you here, you've been wonderful to be here this long, is
there anything anybody else would like to add at all? John,
anything else you'd like to add to this?
Mr. Kemp. I have the privilege of serving as the Executive
Director of the United States Business Leadership Network,
which is a group of 5,000 companies through 32 affiliates
around the country. And the Board of Directors strongly
believes that we should get back to the principles, and support
the principles of the rights of people with disabilities as
were defined in the 1990 ADA. Businesses that are interested in
hiring people with disabilities, doing customer service for
people with disabilities, and even vendoring to companies owned
by people with disabilities are interested in getting back to,
restoring the rights of people with disabilities.
Senator Harkin. Thank you very much.
Anybody else have anything they want to add?
Mr. Thornburgh. Let me just reiterate a point that I made
in passing during my testimony, Senator, and that is there's a
deplorable record of employment of persons with disabilities in
this country, in our society and economy today. And while this
discussion is useful and the changes that are suggested would
be helpful, I just wanted to make the point that we can't lose
sight of the fact that much more has to be done in terms of
preparing people with disabilities to assume their place in the
workplace. They want to work, and appropriate education and job
training on top of the removal of any barriers of
discrimination and honoring of the principle of accommodation
could move that process forward by light years.
I know you share these views, and this isn't necessarily
the forum to raise those needs as well as ones being discussed
today, but I think we can't let that pass without notice.
Senator Harkin. I'm glad you brought it up, thank you.
That's the one thing that has bedeviled me since the
passage of the ADA, we made wonderful strides in accommodations
and transportation, a lot of the things, and that coupled with
IDEA, main-
streaming it, getting kids into school. But we really haven't
cracked that nut on employment, what is it, 63 percent of
people with disabilities are not employed, and of those, I
don't know the percentage but a high percentage are
underemployed. In other words, they may be working, but they're
not working at their full potential for one reason or another.
It really is a scar on our society, and it's just the one
thing that we've, just, again, I thought ADA would start moving
us in that direction, and we haven't made the strides we should
make in that area, we just haven't done it. And it's very
frustrating.
Mr. Orr, do you have anything else to add?
Mr. Orr. No, the only thing I can say is what happened to
me. When I bring it up to people I know, my customers in the
pharmacy and tell them the story of why I'm coming out here to
testify, and I tell them what had happened to me in my past
employment, everybody says, ``They can't do that.'' The only
thing I can say here is that, to testify that, they can and
they did, the way the thing's set up, and it needs to be
changed.
Senator Harkin. Anything else to add?
Ms. Olson. Only to say that I appreciate the opportunity to
discuss some of the issues that I see in S. 1881, and I look
forward to the continued discussion on this issue.
Senator Harkin. If you have suggestions, let me know.
Ms. Feldblum.
Ms. Feldblum. I want to say that I actually would look
forward to working on a new piece of legislation, like
something to really deal with the underemployment and
unemployment. And I wish we weren't having to do a re-do of an
old piece, absolutely.
I have to say, and this is just speaking personally, that I
am looking forward to your leadership and the leadership of the
members of your committee on both sides of the aisle just the
way that leadership was demonstrated in the original ADA. I
absolutely believe that we can get to that bipartisan strong
support on this re-do, and then we move forward with everything
else that needs to be done, as well.
Senator Harkin. Well, I can assure you, we're doing
everything we can, that's why I wanted to make sure when we
introduced the legislation on both the House side and the
Senate side we did it in a bipartisan fashion.
I've said many times before, this issue is not a partisan
issue--never has been, I don't want it to become one, it
shouldn't become one. Some true heroes of this movement have
been people on the other side of the aisle, like Lowell Weiker
and Bob Dole, and Dick Thornburgh and Boyden Gray and former
President Bush and others. And there have been those on our
side, too.
It hasn't been partisan. I hope that in that spirit we can
get this thing moving again, and get something done to solve a
real-life problem that's out there, and do it in a way that
garners good national support.
I think we can do it. We did it in 1988. You know, for
those of you that weren't around at the time, when we started
on this no one thought this was ever going to happen. And we
had a lot of brick bats thrown at us--I can remember in 1980--
well, I came here in 1985, and I had been doing some stuff in
the House before--minor disability issues, and here in 1985 and
1986 with Lowell Weiker, at that time, and he was just a
champion of this. And then Lowell left the Senate, and we kept
moving ahead on it--boy, those were some pretty dark years, no
one thought we could ever get this thing done. But people of
good conscience and people of goodwill--you mentioned Sam
Skinner, Sam was very heavily involved at that time and we were
able to get it done.
I can remember my personal conversations with President
Bush, first President Bush at that time about it. I mean, he
really was committed to this, I mean, he got it, he understood
it.
I think, I'm just saying, been there, I know what it's
like. We did it before, we can do it this time, I just hope it
doesn't take as many years to do it this time, as it did at
that time.
We'll move ahead, I thank you all very much, I thank our
audience for being here. This is the first hearing, we have a
record started to be made. We will, I'm sure, have other
hearings, if not this year, early next year, as we, again, try
to move this legislation forward.
With that the committee will stand adjourned.
[Additional material follows.]
ADDITIONAL MATERIAL
Prepared Statement of Senator Enzi
Mr. Chairman, thank you for holding this very important
hearing. Some 17 years ago President George Herbert Walker
Bush, signed into law the Americans with Disabilities Act, a
landmark piece of legislation that reflected America's
fundamental and continuing concern for human rights. The ADA,
by extending civil rights protections to individuals with
disabilities, reaffirmed the most basic values of our
democracy.
Prior to the passage of the ADA, far too many of our fellow
American's with disabilities led isolated lives, artificially
separated from the mainstream of society, and denied the basic
opportunity to pursue the American dream.
Today, in America, things are undeniably different for
persons with disabilities than it was when I was growing up. It
is certainly different, as well, from 1990 when the ADA was
enacted. Time, the law, and even science, which has produced
much to aid those living with disabilities, have all brought
change. Therefore, it is entirely appropriate for us to review
the law and its impact. The definition of what constitutes a
disability; or, what is a substantial limitation of a
significant life activity; or, what is a reasonable
accommodation; or, what is sufficient access may all require
review.
The ADA was a victory for fundamental civil rights since it
provided full access to society for those who had been denied
it simply because of their immutable characteristics--something
outside of their control.
Since the passage of the ADA, we have seen significant
improvements in the employment and economic well-being of
citizens with disabilities. In 2003, the U.S. Census Bureau
reported that over the previous 15 years the employment rate
for working age men with a disability had increased by more
than 25 percent. Simultaneously, the percentage of individuals
with disabilities with household incomes at or near the poverty
level had contracted dramatically. Other evidence of the ADA's
effect was even more readily apparent. For instance, the
barriers to mobility once posed by public transportation have
been largely eliminated. Today, here in the District of
Columbia, for example, 97 percent of the Metro system is
accessible to persons with disabilities.
Yet, as might be expected after only 17 years, challenges
do remain. Although 60 percent of working age men and 51
percent of women with disabilities are working, only 35 percent
of people with disabilities report being employed full time,
compared to 78 percent of those who do not have disabilities
(Harris poll). Additionally, according to the U.S. Census,
earnings for full-time workers disabilities are still 24
percent less than workers without disabilities. While 26
percent of adults with disabilities currently have household
incomes of $15,000 or less, only 9 percent of individuals
without disabilities have household incomes of $15,000 or less.
Why is there still a discrepancy between these two populations?
With the pending reauthorization of the Higher Education Act
and the Workforce Investment Act, which includes the
Rehabilitation Act we have the opportunity to address these
disparities, improve our economic competitiveness and cultivate
a society of lifelong learners.
Increasing employment for this population is an incredibly
important goal, and one I hope this committee will undertake
with seriousness. In many cases, the accommodation that is
necessary to empower an individual with a disability to
function fully in society and live with financial independence
is just now becoming available. The Assistive Technology Act of
2004, a bill that I cosponsored along with several of my
committee colleagues, provides a Federal program connecting
individuals with disabilities to new technologies so that they
can achieve even more in school, maintain high levels of
productivity at work, and participate more fully in society.
Here again technology is providing answers that were not even
imaginable 17 years ago when the ADA was written.
I also want to congratulate many of the people who are here
in this room today for their involvement in enacting the ADA.
As I think most of you will agree, one of the reasons it was
able to be signed into law by President George H.W. Bush was
because it was crafted in a bipartisan, cooperative way. People
like Bob Dole and our committee colleagues Orrin Hatch and Tom
Harkin listened to their counterparts on the other side of the
aisle, on the other side issues, and on the other side of
ability. I've said it before, but it needs to be reiterated in
today's environment. The best way to actually accomplish
legislative goals is to work together.
Those of you who have worked with me and my staff on
legislative issues relating to disabilities know that this is
the way I like to operate. On bills such as the Vocational
Rehabilitation Act, which we are still working to get enacted,
The Combating Autism Act, JWOD, and SAMHSA reauthorization,
bringing all of the stakeholders around the table was and
continues to be a critical step in the process.
From what I have seen, that has not yet been done with the
legislation introduced by Senator Harkin. Although the text of
S. 1881 was first introduced over 2 years ago in the House of
Representatives, the bill has yet to undergo the kind of
stakeholder review and revision that is necessary, in my view,
to create a passable legislative product. S. 1881 is the third
version which has been introduced, yet, to my knowledge no
changes have been made in the bill. Undergoing such a process
would have raised, and might have resolved, some of the
concerns that will be raised today about the bill. For example,
does it open the definition of disability too far and allow
virtually everyone to qualify as disabled, at least at some
point in their life? Does the bill create a default Federal
``just cause termination'' right of action?
In negotiation, when you gather the stakeholders around the
table for the first time, the first thing you do is agree on
the problem you are working to address. I do not believe that
step has been taken here. Instead, I believe that some merely
want to claim that they, and they alone, know precisely what
Congress intended 17 years ago; and, that many of the reviewing
Federal Courts have simply gotten it wrong since then.
Therefore, no further discussion is necessary since we merely
need to restore that which was originally intended.
Unfortunately, that claim of a monopoly on the truth is sure to
stand in the way of any meaningful discussion or progress. The
process must respect the fact that reasonable people may
disagree; and, that divining the precise intent of Congress is
a speculative claim at best. Productive dialogue rarely begins
with an absolutist position. I believe we need to begin by
discussing and agreeing on the problem, instead of beginning
with a proposed solution which is clearly overbroad. I look
forward to today's proceedings.
Prepared Statement of John R. Vaughn, Chairman, National Council
on Disability
The National Council on Disability (NCD) would like to thank the
committee for this opportunity to provide testimony in support of the
need to restore the Americans with Disabilities Act (ADA), and to share
information the NCD has learned about the impact on people with
disabilities resulting from a series of Supreme Court interpretations
of the definition of ``disability'' under the ADA.
introduction
NCD is an independent Federal agency, composed of 15 members
appointed by the President and confirmed by the Senate. NCD's purpose
is to promote policies and practices that guarantee equal opportunity
for all individuals with disabilities, regardless of the nature or
severity of the disability, and to empower individuals with
disabilities to achieve economic self-sufficiency, independent living,
and integration into all aspects of society.
NCD's duties under its authorizing statute include gathering
information about the implementation, effectiveness, and impact of the
ADA.\1\ In keeping with this requirement, one of NCD's monitoring
activities has been to analyze the Supreme Court cases interpreting the
ADA. From 2002 to 2004, NCD produced a series of 19 policy briefs
analyzing the Supreme Court's ADA cases \2\ and their ramifications on
subsequent Federal court cases. This work culminated in a comprehensive
report, Righting the ADA,\3\ in which NCD proposed language for an ADA
Restoration Act.
The Supreme Court has issued several decisions relating to the
definition of ``disability'' under the ADA. These decisions have
narrowed the definition of ``disability,'' restricting substantially
the number of individuals entitled to protection under the law. NCD has
reviewed the history and evolution of the definition of ``disability,''
analyzed the Congressional intent with respect to coverage, reviewed
the effect of EEOC regulations and guidance on the definition, and
examined the Supreme Court decisions involving the definition of
``disability.'' \4\ NCD concludes that the Supreme Court's
interpretation of the definition of ``disability'' under the ADA has so
altered the ADA that the majority of people with disabilities now would
have no Federal legal recourse in the event of discrimination,
particularly in instances of employment discrimination. An ADA
Restoration Act is urgently needed to restore the ADA's protections
against disability-based discrimination for all Americans.
ncd's role in the passage of the ada
NCD played a key role in the inception of the ADA.\5\ NCD first
proposed the concept for the ADA, Federal legislation to address the
discrimination experienced by people with disabilities, in its 1986
publication, Toward Independence: An Assessment of Programs and Laws
Affecting Persons with Disabilities--With Legislative Recommendations.
\6\ The first published draft of the law was included in NCD's report,
On the Threshold of Independence \7\ in early 1988. The ADA was then
introduced in the House and the Senate in April of that year.
While the bill was introduced too late in the congressional session
to be voted on by both chambers, NCD continued to play a pivotal role
in the passage of the bill. NCD members continued to meet with various
members of the disability community. NCD released another report,
Implications for Federal Policy of the 1986 Harris Survey of Americans
with Disabilities, which evaluated poll results and made
recommendations based on the findings.
On Capitol Hill, Congressman Major Owens created the Congressional
Task Force on the Rights and Empowerment of Americans with
Disabilities, which researched the extent of discrimination. The Task
Force was chaired by former NCD Vice Chairperson Justin Dart, and its
coordinator was former NCD Executive Director Lex Frieden. Revisions
were made to the initial draft, with the assistance of national
disability consumer organizations. Strong bipartisan support for the
ADA had developed by the time Congress returned for the next session.
Both the House and Senate passed similar bills and, in mid-July, both
chambers passed the final version of the ADA, which was signed into law
by President George H.W. Bush on July 26, 1990.
definition of ``disability'' in the ada
Congress modeled the definition of disability in the ADA on Section
504 of the Rehabilitation Act, which had been construed to encompass
both actual and perceived limitations, and limitations imposed by
society. The definition adopted by Congress and the legislative history
of the ADA demonstrate the intention to create comprehensive coverage
under the statute. This definition of ``disability'' was conceived as a
broad element that would extend statutory protection to anyone who had
been excluded or disadvantaged by a covered entity on the basis of a
physical or mental impairment, whether real or perceived.
The Supreme Court's decision in School Board of Nassau County v.
Arline \8\ was the leading legal precedent on the definition of
disability when Congress was considering the ADA. Several committee
reports regarding the ADA expressly relied on the Arline ruling in
discussing the definition of disability. In Arline, the Court took an
expansive and nontechnical view of the definition of ``disability.''
The Court found that Ms. Arline's history of hospitalization for
infectious tuberculosis was ``more than sufficient'' to establish that
she had ``a record of '' a disability under Section 504 of the
Rehabilitation Act.\9\ The Court made this ruling even though her
discharge from her job was not because of her hospitalization.
The Court displayed a lenient interpretation of what a plaintiff
needed to show to invoke the protection of the statute. It noted that,
in establishing the new definition of disability in 1974, Congress had
expanded the definition ``so as to preclude discrimination against
``[a] person who has a record of, or is regarded as having, an
impairment [but who] may at present have no actual incapacity at all.''
\10\
To ensure that the definition of disability and other provisions of
the ADA would not receive restrictive interpretations, Congress
included a requirement that ``nothing'' in the ADA was to ``be
construed to apply a lesser standard'' than is applied under the
relevant sections of the Rehabilitation Act, including section 504.\11\
At the time of the ADA's enactment, it was not contemplated that
disability discrimination cases would come to be more about determining
the extent of someone's disability, rather than about whether
discrimination, in fact, occurred.\12\
For several years after the ADA was signed into law, the pattern of
broad and inclusive interpretation of the definition of disability,
established under section 504, continued under the ADA. In 1996, a
Federal district court declared that ``it is the rare case when the
matter of whether an individual has a disability is even disputed.''
\13\ As some lower courts, however, began to take restrictive views of
the concept of disability, defendants took note, and disability began
to be contested in more and more cases.
the supreme court changes the ada definition of disability
Beginning with its decision in Sutton v. United Airlines in 1999,
the U.S. Supreme Court started to turn its back on the broad
interpretation of disability endorsed by the Court in the Arline
decision.\14\ By the time of the Toyota v. Williams decision in 2002,
the Court was espousing the view that the definition should be
``interpreted strictly to create a demanding standard for qualifying as
disabled.'' \15\ This position is directly contrary to what the
Congress and the President intended when they enacted the ADA.
A narrow interpretation of the term ``disability'' under the ADA
excludes many people whom Congress intended to protect. Recognizing
that discrimination on the basis of disability takes place in various
ways against people with various types of disabilities, Congress had
adopted a time-tested and inclusive, three-prong definition of
``disability'' in the ADA--protecting not only individuals with actual
disabilities, but also those with a history of having a disability or
who are regarded as having a disability. Congress was entitled to
expect that this definition would be interpreted expansively because
the courts and regulations had interpreted the identical definition in
the Rehabilitation Act broadly. NCD views as draconian and erroneous
the stereotypical view of disability that would extend ADA protection
only to those who are so severely restricted that they are unable to
meet the essential demands of daily life.\16\
In June 1999, the Supreme Court decided Sutton v. United
Airlines,\17\ a case involving pilots needing corrective lenses, and
Murphy v. United Parcel Service,\18\ a case involving a man with high
blood pressure. In both cases, the Court held that, in determining
whether an individual is substantially limited in a major life
activity, courts may consider only the limitations of an individual
that persist after taking into account mitigating measures, e.g.,
medication or auxiliary aids and services and any negative side effects
the mitigating measures may cause.
On the same day in 1999, the Supreme Court decided Albertson's v.
Kirkingburg,\19\ a case involving a man who was blind in one eye. The
Court held in Kirkingburg that a ``mere difference'' in how a person
performs a major life activity does not make the limitation
substantial; how an individual has learned to compensate for the
impairment, including ``measures undertaken, whether consciously or
not, with the body's own systems,'' also must be taken into
account.\20\ These three cases, Sutton, Murphy and Kirkingburg are
often referred to as the ``Sutton trilogy.''
The result of these decisions is that people who Congress clearly
intended to be covered by the ADA,\21\ such as people with
epilepsy,\22\ diabetes,\23\ depression,\24\ and hearing loss,\25\ are
now being denied employment and refused reasonable accommodations
because of their disability or the mitigating measures they use, and
courts refuse to hear their cases, regardless of how egregious their
employers' actions.
These decisions have resulted in courts now making elaborate
inquiries into all aspects of the personal lives of ADA plaintiffs in
order to determine whether, and to what extent, mitigating measures
actually alleviate the effects of the disability--none of which is
relevant to the question of whether discrimination occurred. Such
inquisitions about the extent of people's disabilities is inconsistent
with other provisions of the ADA that sharply restrict the use of
inquiries about the nature and extent of disabling conditions and of
medical information about an individual's limitations.\26\
When elaborate inquiries are called for by the ADA, they should be
about the individual's abilities--not his or her disabilities.\27\ Not
only are elaborate inquiries into the extent of a person's disability
demeaning and extremely costly in terms of litigation resources, they
miss the point. It does not matter if medication stabilizes a person's
blood sugar if the employer harbors an irrational fear that it will not
do so, and terminates the employee. It does not matter how effective
someone's hearing aids are if an employer refuses to hire him because
the employer believes his insurance rates will increase if he hires a
person with a hearing impairment. It does not matter if working the day
shift would eliminate someone's risk of seizures if the employer
refuses the employee's request to switch from the night shift to the
day shift.
By focusing on how well mitigating measures alleviate the effects
of a disability, the Supreme Court has denied discrimination protection
to people who are likely to be capable of doing the job. It is a rare
plaintiff who is able to successfully challenge even the most egregious
and outrageous discrimination involving a condition that can be
mitigated.
The Supreme Court has also changed the meaning of ``substantial
limitation of a major life activity'' in ways that screen out even more
people with disabilities that Congress intended to protect. Closely
tracking the Rehabilitation Act, the first prong of the ADA definition
of disability provides that a condition constitutes a disability if it
``substantially limits one or more of the major life activities of such
individual.'' \28\ In Toyota v. Williams, the Court changed
substantially limits to mean ``prevents or severely restricts.'' \29\
In the Williams case, the Court also decided that to be
substantially limited in a major life activity, a person must be
substantially limited in an activity ``of central importance to most
people's daily lives,'' and held that ``substantially limited in a
major life activity'' must be ``interpreted strictly to create a
demanding standard for qualifying as disabled.'' \30\ The phrase ``of
central importance to most people's daily lives'' has led to extensive
questioning about an individual's ability to brush his or her teeth,
bathe, dress, stand, sit, lift, eat, sleep, and interact with
others.\31\ It has led to contradictory rulings by Federal courts about
whether activities such as communicating, driving, gardening, crawling,
jumping, learning, shopping in the mall, performing house work, and
even working and living are ``major life activities.'' \32\ In hundreds
of cases of alleged disability-based discrimination, people with
disabilities have had to spend their resources litigating such issues,
often with the question of whether disability-discrimination occurred
never being addressed.
The cases discussed here represent only a portion of the
problematic issues raised by a string of decisions by the Supreme Court
which have significantly diminished the civil rights of people with
disabilities. \33\ The ADA Restoration Act is needed to return the
focus to examination of the relevant facts of the case when disability
discrimination is alleged. Can the person with a disability perform the
essential functions of the job, with reasonable accommodations, if
necessary? Would the reasonable accommodation pose an undue hardship on
the employer? Would the person's mental or physical impairment pose a
safety risk to others that could not be eliminated by a reasonable
accommodation? Did the employer discriminate against the employee on
the basis of a real or perceived disability?
As NCD declared in its Righting the ADA report:
The Court's position that the definition of disability is to
be construed narrowly represents a sharp break from traditional
law and expectations. It ignores and contradicts clear
indications in the statute and its legislative history that the
ADA was to provide a comprehensive prohibition of
discrimination based on disability, and legislative, judicial,
and administrative commentary regarding the breadth of the
definition of disability. It also flies in the face of an
established legal tradition of construing civil rights
legislation broadly. Congress knowingly chose a definition of
disability that to that time had been interpreted broadly in
regulations and the courts; it was entitled to expect the
definition would continue to receive a generous reading.
In crafting the ADA, Congress did not treat nondiscrimination
as something special that can be spread too thin by granting it
to too many people. Unlike disability benefits programs, such
as Supplemental Security Income (SSI) and Social Security
Disability Insurance (SSDI), which are predicated on
identifying a limited group of eligible persons to receive
special benefits or services that other citizens are not
entitled to obtain, and for which the courts have sought to
guard access jealously, the ADA is premised on fairness and
equality, which should be generally available and expected in
American society. The Court's harsh and restrictive approach to
defining disability places difficult, technical, and sometimes
insurmountable evidentiary burdens on people who have
experienced discrimination.\34\
Given the extensive congressional record regarding findings of
discrimination against many types of disabilities and the broad
coverage of the ensuing ADA regulations, the general understanding
following enactment of the ADA was that anyone experiencing disability-
related discrimination had a remedy in court. People with disabilities
of all types presume they are covered by the ADA when many of them now
are not.
restoration, not expansion
The ADA was intended to apply to every person who experiences
discrimination on the basis of disability; protection from
discrimination is not a special service reserved for a select few. The
law was crafted to extend protection even to people who are not
actually limited by their conditions but who experience adverse
treatment based on fear, stereotyping, and stigmatization.
The ADA Restoration Act supports the purpose of the ADA, to
prohibit discrimination, by removing the obstacle of forcing a person
to prove that he or she has a sufficiently severe impairment to justify
protection under the law. The language in the ADA Restoration Act still
requires a plaintiff to show that discrimination occurred based on his
or her real or perceived physical or mental impairment to successfully
bring a claim under the ADA. The ADA still protects only those who can
prove discrimination based on that impairment, and, in addition, in the
employment context, individuals who can demonstrate that they are
qualified to perform the job.
Congress balanced the interests at stake when it passed the ADA 17
years ago. Congress included, for instance, elements intended to
protect the interests of small businesses, and these elements remain in
place under the ADA Restoration Act, including: the exemption for small
employers, the undue hardship limitation, the readily achievable limit
on barrier removal in existing public accommodations, the undue burden
limitation regarding auxiliary aids and services, and the elevator
exception for small buildings, among others.\35\ The bill currently
before Congress restores the original intent of a carefully crafted
law.
veterans with disabilities
NCD is particularly concerned about the impact of the developments
in the ADA case law on veterans with disabilities. Service members
returning from the current conflict in Iraq and Afghanistan are
experiencing a very high incidence of disabilities, including post-
traumatic stress disorder and traumatic brain injuries.\36\ Veterans
also experience higher than average rates of chronic health conditions
after serving in armed conflicts.\37\ Veterans are nearly three times
as likely as the general population to develop diabetes.\38\ According
to the Epilepsy Foundation,\39\ the high number of veterans
experiencing traumatic brain injuries portends an increase in the
incidents of epilepsy among this group, as traumatic brain injury is a
significant risk factor for developing epilepsy. As a result of
exposure to explosions and close-range weapons fire, veterans also
experience much higher than average incidents of hearing loss.\40\
Given the high number of veterans returning from the current conflicts
with disabilities, and the likelihood that a high number of returning
veterans will experience the very types of chronic health conditions
the Supreme Court has deemed ineligible for protection from disability-
based discrimination in the workplace, it becomes even more urgent that
Congress act now to restore the ADA so that veterans with disabilities
who are able to work are not subjected to employment discrimination.
conclusion
The Americans with Disabilities Act was designed to prohibit
disability-based discrimination against all Americans, whether or not
they actually have a disability. The Supreme Court has issued many
decisions interpreting the ADA since its enactment, limiting the scope
of the ADA and transforming it into a ``special'' protection for a
select few. The result is that disability discrimination now occurs
with impunity, particularly in the workplace. Unless and until Congress
takes action to correct the course of the ADA, most Americans are no
longer protected from disability-based discrimination. NCD urges
Congress to act quickly to re-instate the scope of protection Congress
initially provided in the ADA.
References Cited
1. For a list of NCD's publications on the ADA: http://www.ncd.gov.
2. See NCD's Policy Brief Series: Righting the ADA at http://
www.ncd.gov/newsroom/publications/2003/policybrief.htm.
3. National Council on Disability, Righting the ADA (2004),
available at http://www.ncd.gov/newsroom/publications/2004/
righting_ada.htm.
4. See National Council on Disability, Americans with Disabilities
Act Policy Brief Series: Righting the ADA--No. 6, Defining
``Disability'' in a Civil Rights Context: The Courts' Focus on Extent
of Limitations as Opposed to Fair Treatment and Equal Opportunity,
(2003), at http://www.ncd.gov/newsroom/publication/extentoflimitations
.html.
5. For additional information, see NCD's 1997 publication, Equality
of Opportunity: the Making of the Americans with Disabilities Act,
http://www.ncd.gov/newsroom/publications/1997/equality.htm. NCD's role
with respect to the ADA is also described in the 2004 report National
Council on Disability: 20 Years of Independence, http://www.ncd.gov/
newsroom/publications/2004/publications.htm.
6. National Council on Disability, Toward Independence: An
Assessment of Programs and Laws Affecting Persons with Disabilities--
With Legislative Recommendations (1986), available at http://
www.ncd.gov/newsroom/publications/1986/toward.htm.
7. National Council on Disability, On the Threshold of Independence
(1988), available at http://www.ncd.gov/newsroom/publications/1988/
threshold.htm.
8. School Board of Nassau County v. Arline, 480 U.S. 273, 284
(1987).
9. Id. at 281.
10. Id. at 279.
11. 42 U.S.C. Sec. 12201(a).
12. For additional information, see NCD's policy papers that
discuss the care with which the ADA definition of disability was
selected and the breadth of that definition, A Carefully Constructed
Law and Broad or Narrow Construction of the ADA, papers No. 2 and No.
4, respectively, of NCD's Policy Brief Series: Righting the ADA at
http://www.ncd.gov/newsroom/publications/2003/policybrief.htm.
13. Morrow v. City of Jacksonville, 941 F. Supp. 816, 823 n. 3
(E.D.Ark. 1996).
14. Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999).
15. Toyota Motor Mfg., Ky., Inc. v. Williams 534 U.S. 184, 197-98
(2002).
16. National Council on Disability, National Council on Disability:
20 Years of Independence (2004), available at http://www.ncd.gov/
newsroom/publications/2004/twentyyears.htm.
17. Sutton, 527 U.S. 471 (1999).
18. Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999).
19. Albertson's Inc. v. Kirkingburg, 527 U.S. 555 (1999).
20. Id. at 564-67.
21. See S. Rep. No. 116, 101st Cong., 1st Sess. 23 (1989); H.R.
Rep. No. 485 part 2, 101st Cong., 2d Sess. 52 (1990).
22. See Todd v. Academy Corp., 57 F. Supp. 2d 448, 453-54 (S.D.
Tex. 1999).
23. See Nordwall v. Sears, Roebuck & Co., 46 Fed. App. 364, 2002 WL
31027956 (7th Cir. 2002) (unpublished).
24. See Spades v. City of Walnut Ridge, 186 F.3d 897, 900 (8th Cir.
1999).
25. See Martell v. Sparrows Point Scrap Processing, 214 F. Supp. 2d
527 (MD. 2002).
26. 42 U.S.C. 12112(d)(2)(A) (``Except as provided in paragraph
(3), a covered entity shall not conduct a medical examination or make
inquiries of a job applicant as to whether such applicant is an
individual with a disability or as to the nature or severity of such
disability.''); 42 U.S.C. 12112(d)(2)(B) (``A covered entity may make
inquiries into the ability of an employee to perform job-related
functions.''); 42 U.S.C. 12112(d)(4)(A) (``A covered entity shall not
require a medical examination and shall not make inquiries of an
employee as to whether such employee is an individual with a disability
or as to the nature or severity of the disability, unless such
examination or inquiry is shown to be job-related and consistent with
business necessity.'').
27. Id.
28. 42 U.S.C. Sec. 12102(2)(A).
29. Toyota, 534 U.S. 184 (2002).
30. Id.
31. National Council on Disability, Policy Brief Series: Righting
the ADA, No. 13, The Supreme Court's ADA Decisions Regarding
Substantial Limitation of Major Life Activities (2003), at http://
www.ncd.gov/newsroom/publications/2003/limitation.htm.
32. Id.
33. See NCD, Righting the ADA (2004), available at http://
www.ncd.gov/newsroom/publications/2004/righting_ada.htm. More detailed
descriptions of the specific issues and problems are presented in the
Righting the ADA series of policy briefs published on NCD's Web site at
www.ncd.gov/newsroom/publications/2003/policybrief.htm.
34. National Council on Disability, Righting the ADA (2004) at 11,
available at http://www.ncd.gov/newsroom/publications/2004/
righting_ada.htm#IIA.
35. For more information, see NCD statement on the subject of the
Notification Act at http://www.ncd.gov/newsroom/news/2003/r03-408.htm.
36. According to the 2004 Report of the Special Committee on Post-
Traumatic Stress Disorder, established by Congress in 1984 to monitor
this problem, 40 percent of casualties returning from Iraq and
Afghanistan to Walter Reed Army Medical Center reported symptoms
consistent with PTSD.
37. National Academy of Sciences, Gulf War Veterans Experience
Health Symptoms, But Not Unique Syndrome: Elevated Rates of ALS,
Psychological Conditions Found (Sept. 12, 2006).
38. U.S. Department of Health and Human Services, HHS and VA to
Target Diabetes, Obesity Among American Veterans (Feb. 27, 2006) http:/
/www.hhs.gov/news/press/2006pres/20060227.html (visited Nov. 9, 2007).
39. Brenda Patoine, High Rate of Head Injuries in Iraq Soldiers
Portends Potential Wave of Epilepsy, http://www.epilepsyfoundation.org/
epilepsyusa/tbi-special-
report. cfm (visited Nov. 9, 2007).
40. National Academy of Sciences, Institute of Medicine, Noise and
Military Service: Implications for Hearing Loss and Tinnitus (Sept. 22,
2005).
Prepared Statement of The American Civil Liberties Union, Caroline
Fredrickson, Director, ACLU Washington Legislative Office and Joanne
Lin, Legislative Counsel, ACLU Washington Legislative Office
in support of the americans with disabilities act restoration
act of 2007 (s. 1881)
The American Civil Liberties Union (ACLU) applauds the Senate
Health, Education, Labor, and Pensions Committee for holding this
hearing on the Americans with Disabilities Act (``ADA'') Restoration
Act of 2007 and appreciates the opportunity to submit a statement for
the record. The ACLU also wishes to thank Senators Harkin (D-IA),
Specter (R-PA), and Kennedy (D-MA) for their important leadership in
championing this key legislation.
The ACLU is a nonpartisan public interest organization dedicated to
protecting the constitutional rights of individuals. The ACLU consists
of hundreds of thousands of members, activists, and 53 affiliates
nationwide. The ACLU has pursued pioneering work in disability rights
for over 35 years. A highlight in this long record was the ACLU's
leadership role in securing passage of the Americans with Disabilities
Act (``ADA'') in 1990.\1\ In addition, the ACLU has participated in
landmark disability litigation including Bragdon v. Abbott, 524 U.S.
624 (1998) \2\; Sutton v. United Airlines, Inc., 527 U.S. 471 (1999)
\3\; Chevron, USA, Inc. v. Mario Echazabal, 122 S. Ct. 2045 (2002).\4\
---------------------------------------------------------------------------
\1\ Chai Feldblum, former legislative counsel with the ACLU, served
as a lead legal advisor to the disability and civil rights communities
in the drafting and negotiating of the ADA in the late 1980s and 1990.
\2\ The ACLU wrote an amicus brief in Bragdon which addressed
whether individuals with asymptomatic HIV and AIDS were covered under
the protections of the ADA. Available at http:
//www.aclu.org/scotus/1997/22683lgl19980201.html.
\3\ The ACLU wrote an amicus brief in Sutton, arguing that the ADA
was intended to be applied broadly to protect individuals with
disabilities from discrimination in the workplace. Available at http://
www.aclu.org/scotus/1998/22639lgl19990222.html.
\4\ The ACLU wrote an amicus brief in Echazabal, arguing that an
employer violates the ADA when refusing to hire an individual on the
basis of her or his disability. The ACLU further argued that allowing
individuals to decide what risks--physical, social, or otherwise--she
or he is willing to take is at the very core of a person's civil
rights. Available at http://www.aclu.org
/images/asset_upload_file411_21954.pdf.
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In 1990 Congress passed the ADA with overwhelming bipartisan
support, creating a landmark civil rights law that improved the lives
of millions of people with disabilities. In passing the ADA, Congress
advanced the goals of ensuring equal opportunity, full participation,
independent living, and economic self-sufficiency for all people with
disabilities.\5\ The purpose of the ADA was to ``provide a clear and
comprehensive national mandate for the elimination of discrimination''
on the basis of disability, and ``to provide clear, strong, consistent,
enforceable standards'' for addressing such discrimination.\6\
---------------------------------------------------------------------------
\5\ See 42 U.S.C. Sec. 12101(a)(8).
\6\ See Americans with Disabilities Act Sec. 2(b), 42 U.S.C.
Sec. 12101(b) (2007).
---------------------------------------------------------------------------
Unfortunately 17 years after enactment of the ADA, the promise of
equal opportunity in employment has gone unfulfilled for many people
with disabilities due to a series of U.S. Supreme Court decisions that
have narrowed the definition of disability under the ADA contrary to
congressional intent. This has resulted in the exclusion of many
persons whom Congress intended to protect including people with cancer,
epilepsy, diabetes, hearing loss, multiple sclerosis, HIV infection,
intellectual disabilities, post traumatic stress syndrome, and many
other impairments. The ACLU believes that an individual has the right
to be judged on the basis of her or his individual capabilities, not on
the presumed characteristics and capabilities that others may attribute
to those who share a particular impairment. The court decisions are at
odds with this regimen and have created an unintended Catch-22 where
individuals taking medication or using other mitigation measures to
manage their condition may no longer qualify as ``disabled'' under the
ADA. Thus those individuals who diligently manage their condition or
impairment may be denied reasonable accommodations or be terminated,
without ever being able to present the merits of their case in court.
The ACLU supports the ADA Restoration Act of 2007 (S. 1881) as a
necessary fix to this Catch-22 problem. The ADA Restoration Act
restores Congress' original intent in extending discrimination
protections to all people with disabilities, regardless of mitigating
measures, who are discriminated against because of their disability.
The ACLU encourages its passage in order to guarantee equal protection
for all people, regardless of disability.
Prepared Statement of the Disability Policy Collaboration (In Support
of the ADA Restoration Act of 2007 (S. 1881)
the disability policy collaboration of the arc and united cerebral
palsy urges congress to keep its promise to end unfair employment
discrimination
Although the Americans with Disabilities Act (ADA) of 1990 has
resulted in access to thousands of public accommodations and government
services that people with disabilities were never before able to enjoy,
the full promise of this law is yet unfulfilled. Many people with
disabilities who want to work and be treated fairly in the workplace
face the same continued discrimination that the ADA sought to
eliminate.
The Supreme Court and other court decisions have narrowly
interpreted the definition of disability under the ADA, which is
reasonably defined as: (A) a physical or mental impairment that
substantially limits one or more major life activities; (B) a record of
such an impairment; or (C) being regarded as having such an impairment.
Instead of protecting people with disabilities, the courts have
created a no-win situation for people with disabilities in the
workplace. People with disabilities are often deemed ``too disabled''
to do the job but not ``disabled enough'' to be protected by the law.
The following cases exemplify this unfortunate Catch-22:
A circuit court upheld a lower court's refusal to hear the
case of a man with an intellectual disability. Writing for the
majority, the judge wrote that it wasn't clear under the ADA ``whether
thinking, communicating and social interaction are `major life
activities.' '' \1\
---------------------------------------------------------------------------
\1\ Littleton v. Wal-Mart Stores, Inc., No. 05-12770, 2007 WL
1379986, at *1 (11th Cir. May 11, 2007).
---------------------------------------------------------------------------
A pharmacist with diabetes was fired for taking a break to
eat during his 10-hour shift. He needed a brief lunch break to properly
control his diabetes. He was fired because he continued to manage his
disability by the best practice guidelines of proper food intake. The
court deemed he was not disabled enough to be protected under the ADA
because his diabetes was so well-managed--``Not disabled enough'' for
protection under the ADA and yet ``too disabled'' to work.\2\
---------------------------------------------------------------------------
\2\ Orr v. Wal-Mart Stores, Inc., 297 F.3d 720, 722 (8th Cir.
2002).
---------------------------------------------------------------------------
A stock merchandiser with lifelong epilepsy was fired
after a 5-day absence related to his condition. The court held he was
not protected by the ADA because he typically experienced seizures once
a week, lasting only 5 to 15 seconds, and his medication caused only
``some'' adverse side effects. He was fired because of his disability,
but the court refused to hear his case because he was ``not disabled
enough.'' \3\
---------------------------------------------------------------------------
\3\ Todd v. Academy Corp., 57 F. Supp. 2d 448, 449-50 (S.D. Tex.
1999).
---------------------------------------------------------------------------
restoring congress' intent when it passed the ada in 1990
``When we passed the [ADA] there was common agreement on both sides
of the aisle, and on the part of President George Herbert Walker Bush
and his aides, that the law was designed to protect any individual who
is treated less favorably because of a current, past, or perceived
disability . . . In recent years, the courts have ignored Congress'
clear intent as to who should be protected under the ADA. And the
courts have narrowed the definition of who qualifies as an `individual
with a disability.' As a consequence, millions of people we intended to
be protected under the ADA--including people with epilepsy, diabetes,
and cancer--are not protected any more.'' (Senator Tom Harkin when he
introduced the ADA Restoration Act of 2007)
The bipartisan ADA Restoration Act of 2007 will amend the ADA to
shift the focus from requiring individuals with disabilities to
``prove'' their disability to determining whether a person has
experienced discrimination ``on the basis of disability.'' By
eliminating the Catch-22, the ADA Restoration Act restores the right to
be judged based solely on one's qualifications for the job, bringing
the ADA in line with other civil rights laws and requiring the courts
to interpret the law fairly.
The Disability Policy Collaboration strongly urges Congress to pass
the ADA Restoration Act (S. 1881), restoring the original intent of
Congress when it passed the ADA in 1990.
______
National Council on Independent Living,
Washington, DC. 20036,
November 15, 2007.
Hon. Edward M. Kennedy, Chairman,
Health, Education, Labor, and Pensions Committee,
U.S. Senate,
Washington, DC. 20510.
Hon. Michael B. Enzi, Ranking Member,
Health, Education, Labor, and Pensions Committee,
U.S. Senate,
Washington, DC. 20510.
Dear Chairman Kennedy, Ranking Member Enzi and Distinguished
Members: We are writing on behalf of the National Council on
Independent Living (NCIL) to strongly urge you to support the ADA
Restoration Act of 2007, S. 1881. Since enactment of the Americans with
Disabilities Act of 1990, people with disabilities have made
substantial strides toward societal inclusion and full participation.
However, in recent years, a number of Supreme Court decisions have
significantly reduced the protections available to people with
disabilities in employment settings. Restoring the act to Congress'
original intent would enable people with disabilities to secure and
maintain employment without fear of losing their job because of their
disability. Congress clearly intended to cover the full spectrum of
disabilities, both visible and invisible.
NCIL is the oldest cross-disability, national grassroots
organization run by and for people with disabilities. Our members
include Centers for Independent Living, State Independent Living
Councils, people with disabilities, and other disability rights
organizations. As a membership organization, NCIL advances Independent
Living (IL) and the rights of people with disabilities through
consumer-driven advocacy. NCIL envisions a world in which people with
disabilities are valued equally and participate fully.
A key part of our work is to implement the integration mandate of
the Americans with Disabilities Act by moving people with disabilities
out of institutions and into community-based settings so they can
control their own destinies and live independently. NCIL also works
tirelessly to ensure that the Americans with Disabilities Act and other
crucial civil rights laws are not only fully implemented, but also
enforced.
We welcome the opportunity to comment on this critical civil rights
law and look forward to a robust discussion of ways in which we can
work together to achieve the full promise of the ADA.
Background: Passed with overwhelming bipartisan support, the
Americans with Disabilities Act of 1990 was designed as a ``clear and
comprehensive national mandate for the elimination of discrimination
against individuals with disabilities.'' Without doubt, the ADA has
transformed America's communities, removing barriers to persons with
disabilities in the built environment and infrastructure, and has
substantively advanced the cause of community integration for people
with disabilities.
Issues: Yet, the National Council on Disability documented in its
Righting the ADA report, a series of flawed Supreme Court decisions
have seriously undermined our ability to realize the full promise of
the ADA. In Sutton v. United Airlines, and Toyota v. Williams, the
Supreme Court has taken to interpreting the definition of disability in
a restrictive manner that Congress never envisioned, placing the burden
on persons with disabilities to prove that they are entitled to the
ADA's protections--particularly in the employment sphere. This creates
a Catch-22 in which employees can be discriminated against on the basis
of their disability but unable to enforce their rights because they
cannot meet the high threshold the courts have set to prove they are
disabled. Furthermore, in University of Alabama v. Garrett, the Supreme
Court ruled 5-4 that the 11th Amendment prohibits suits in Federal
court by State employees to recover money damages under Title I of the
ADA. The Supreme Court's restrictive approach to the ADA in employment
cases is especially disconcerting since the unemployment of persons
with disabilities wishing to work remains widespread.
Proper implementation of the original intent of the ADA in the
employment sphere is critical to the economic self-sufficiency and full
societal participation of people with disabilities that is at the core
of the IL movement. The fact that only 7 percent of persons with
disabilities own their own homes and roughly 30 percent of Americans
with disabilities are employed is a reflection of the continued
inability of persons with disabilities to enforce their right to non-
discrimination in the workplace under the Americans with Disabilities
Act.
Issues Raised by the U.S. Chamber of Commerce: The U.S. Chamber of
Commerce claims that the ADA Restoration Act ensures that protections
on the basis of disability apply broadly. This is correct. The Supreme
Court did not understand that significant disability as defined by the
Americans with Disabilities Act includes people with intellectual
disabilities (formerly known as Mental Retardation), epilepsy,
diabetes, cancer, and mental illnesses, among others. For a person who
merely has poor vision that is correctible, he or she may indeed be
considered disabled by a court. The question is not whether a person
with a disability has a disability or is regarded as a person with a
disability. The question is whether or not the person has been
discriminated against on the basis of disability. The intent of S.
1881/H.R. 3195 is to prevent discrimination on the basis of disability,
not to create a protected class.
The Chamber of Commerce also alleges that the ADA Restoration Act
of 2007 ``would reverse the long-standing rule that allows employers to
determine what the essential functions of a job are, allowing
plaintiffs to second-guess routine job decisions that employers must
make every day.'' There is no such language in S. 1881 to this effect.
The problem with the Supreme Court's and lower courts' decisions
referenced in S. 1881/H.R. 3195's ``Findings and Purposes'' is that
they have not even considered whether there has been discrimination
based on disability. Therefore, the courts ruled that the plaintiff was
either not disabled or not disabled enough to be protected by the ADA.
Had the courts properly reviewed these cases, they would have decided
them on the basis of whether the plaintiff was qualified to perform the
essential functions of the job with or without reasonable
accommodation.
The real problem in the Chamber of Commerce's August 22 letter to
the U.S. House of Representatives is not their fallacious reasoning,
but the blatant prejudice it exhibits against Americans with
disabilities. NCIL has members in all but five congressional districts.
Our experience working with businesses in communities across the
country over three decades shows that the majority of businesses are
more open-minded than the board and staff of the Chamber of Commerce.
NCIL supports: Enactment of the ADA Restoration Act as introduced
by Senators Tom Harkin and Arlen Specter and in the House by Majority
Leader Steny Hoyer, Rep. James Sensenbrenner, and co-sponsored by more
than 220 of their colleagues to remedy decades of purposeful,
unconstitutional discrimination and as such should be given a broad,
rather than a narrow, construction.
Funding for ongoing public education on the requirements
of the ADA, and adequate funding for strong enforcement by the U.S.
Department of Justice, U.S. Equal Employment Opportunity Commission,
Federal Communications Commission, and other agencies with enforcement
responsibilities;
Creative efforts by federally funded enforcement,
technical assistance, and advocacy organizations to promote the
positive aspects of the ADA's accessibility and equal opportunity
requirements;
Efforts by States to voluntarily waive their immunity from damage
suits brought by people with disabilities under Titles I and II of the
ADA, and;
Bipartisan congressional efforts to overturn Supreme Court
decisions narrowing the scope of the ADA, by enacting the ADA
Restoration Act, S. 1881/H.R. 3195.
Thank you for your consideration. Please do not hesitate to contact
Deb Cotter of our policy staff if you have additional questions or
concerns. Deb can be reached at (202) 207-0334 or [email protected].
Sincerely,
John A. Lancaster,
Executive Director.
Kelly Buckland,
President.
______
Response to Questions of Senator Hatch by Camille A. Olson
Question 1. Does either the Rehabilitation Act of 1973 or the
Americans with Disabilities Act equate an impairment with a disability
or does each require that, to constitute a disability, an impairment
substantially limit a major life activity?
Answer 1. Neither the Rehabilitation Act of 1973 \1\ nor the
Americans with Disabilities Act \2\ equates an impairment with a
disability. Under both statutes, an impairment must substantially limit
a major life activity to meet the definition of a ``disability.'' In
enacting the ADA, Congress adopted the definition of ``individual with
a disability'' from Section 504 of the Rehabilitation Act. Both
statutes define an individual with a disability using a functional
approach, based on the effect the impairment has on the individual's
life.\3\
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\1\ Pub. L. No. 93-112, amended by Pub. L. No. 93-516, 88 Stat.
1617 (1974) (codified at 29 U.S.C. Sec. 701 et seq.)
\2\ Pub. L. No. 101-336, 104 Stat. 327 (1990) (codified at 42
U.S.C. Sec. Sec. 12101-12213 (1994); 47 U.S.C. Sec. 225711 (2001)).
\3\ 42 U.S.C. Sec. 12101(2); 29 U.S.C. Sec. 705(20)(A).
Question 2. Has any State or Federal court ever ruled that, under
the Rehabilitation Act, any particular condition is a disability
without regard to its effect on a major life activity? Has any State or
Federal court ruled that, under the Rehabilitation Act, any particular
condition is not a disability regardless of its effect on a major life
activity? If so, in either case, please provide citations to such
rulings. Please keep in mind that I am not asking whether or not an
individual with a particular impairment was found to be disabled, but
whether or not a particular impairment was per se found to constitute a
disability.
Answer 2. No court has recognized a per se disability under the
Rehabilitation Act. Instead, courts engage in an individualized
analysis to determine the existence of a disability.\4\ Thus, under the
Rehabilitation Act, depending on the condition's impact on the
individual, the same impairment can rightly lead to findings that one
individual is disabled while another individual with the same
impairment is not.\5\
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\4\ See, e.g., Rezza v. U.S. Dep't of Justice, No. 87-6732, 1988 WL
48541, at *2 (E.D. Pa. May 16, 1988) (The analysis of ``who is a
handicapped person under the [Rehabilitation] Act is best suited to a
`case by case determination.' '') quoting Forrisi v. Bowen, 794 F.2d
931, 933 (4th Cir. 1986); E.E. Black, Ltd. v. Marshall, 497 F. Supp.
1088, 1099 (D. Haw. 1980) (whether a disability is a qualifying
handicap under the Rehabilitation Act requires a case-by-case
analysis); Diaz v. United States Postal Service, 658 F. Supp. 484 (E.D.
Cal. 1987) (employee with back problems did not have disability under
the Rehabilitation Act because the back problems did not substantially
limit major life activities); Schuett Investment Co. v. Anderson, 386
N.W.2d 249 (Minn. App. 1986) (because individual's back injury
substantially limited his ability to perform manual tasks he was
disabled under the Rehabilitation Act); Sharon v. Larson, 650 F. Sup.
1396 (E.D.Pa. 1986); Padilla v. Topeka, 708 P.2d 543 (Kan. 1985)
(myopic applicant for police officer position was not handicapped under
the Rehabilitation Act).
\5\ Compare Pridemore v. Rural Legal Aid Soc., 625 F. Supp. 1180
(S.D. Ohio 1985) (individual with cerebral palsy was not substantially
limited in a major life activity and, therefore, not disabled under the
Rehabilitation Act); with Fitzgerald v. Green Valley Area Educ. Agency,
589 F. Supp. 1130 (S.D. Iowa 1984) (individual with cerebral palsy and
left side hemiplegia was substantially limited in a major life activity
and, therefore, disabled under the Rehabilitation Act).
Question 3. Has any State or Federal court ever ruled that, under
the ADA, any particular condition is a disability without regard to its
effect on a major life activity? Has any State or Federal court ruled
that, under the ADA, any particular condition is not a disability
regardless of its effect on a major life activity? If so, in either
case, please provide citations to such rulings. Please keep in mind
that I am not asking whether or not an individual with a particular
impairment was found to be disabled, but whether or not a particular
impairment was per se found to constitute a disability.
Answer 3. Similar to holdings under the Rehabilitation Act, courts
have consistently held that there are no per se disabilities under the
ADA.\6\ Conversely, courts have not ruled that any particular condition
is not a disability regardless of its effect on a major life
activity.\7\ Rather, courts generally engage in an individualized
analysis to determine whether an individual with an impairment is also
an individual with a disability.\8\
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\6\ See generally Bragdon v. Abbott, 524 U.S. 624 (1998)
(Individual with AIDS is disabled under the ADA due to substantial
limitation on major life activity of reproduction); Swart v. Premier
Parks Corp., 88 Fed. Appx. 366 (10th Cir. 2004) (noting that impairment
does not equal disability and holding that individual with migraines
that did not interfere with work or a major life activity was not
disabled under the ADA); Reed v. Lepage Bakeries, Inc., 102 F. Supp. 2d
33 (D. Me. 2000), aff 'd 244 F.3d 254 (1st Cir. 2001) (individual with
bipolar disorder was disabled under the ADA).
\7\ Compare Anderson v. Indep. Sch. Dist. No. 281, No. 01-560, 2002
WL 31242212 (D. Minn. 2002) (individual with depression disabled under
the ADA); with Cooper v. Olin Corp., 246 F.3d 1083 (8th Cir. 2001)
(individual with depression not disabled under the ADA).
\8\ Our research found one case in which a court did not conduct a
thorough analysis, choosing instead to cite to Federal decisions
holding that AIDS is a disability. See Hamlyn v. Rock Island County
Metro. Mass Transit Dist., 986 F. Supp. 1126 (C.D. Ill. 1997). Hamlyn
is the exception that proves the rule: courts applying the statute in a
principled manner examine an impairment's impact on major life
activities.
Question 4. Like the Rehabilitation Act, the ADA requires that an
impairment substantially limit a major life activity to constitute a
disability. The ADA Restoration Act would eliminate the requirement
that an impairment substantially limit a major life activity to
constitute a disability. Does this change or restore the ADA's
definition of disability?
Answer 4. Eliminating the requirement that an impairment
substantially limit a major life activity fundamentally changes the
ADA's definition of disability. By requiring a substantial limitation
on a major life activity, Congress sought to extend protections to the
``discrete and insular minority'' of disabled individuals who had been
``subjected to a history of purposeful unequal treatment.'' \9\
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\9\ Remarks of President George Bush at the Signing of the
Americans with Disability Act (July 26, 1990), http://www.eeoc.gov/ada/
bushspeech.html (last visited Dec.19, 2007); 42 U.S.C.
Sec. 12107(a)(7).
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Thus, inclusion of ``substantially limits one or more of the major
life activities of such individual'' in the ADA's definition of a
``disability'' demonstrates Congress's deliberate and careful decision
to ensure that ``minor, trivial impairments such as a simple infected
finger'' were not covered by the ADA.\10\ Without this requirement,
even slight impairments would be covered under the definition of a
``disability.'' Such a result would have far-reaching implications,
thus expanding the ADA's reach to cover virtually every American.
Congress did not intend such a result.
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\10\ 29 CFR pt. 1630, App. Sec. 1630.2(j).
Question 5. Page 22 of the Senate Labor and Human Resources
Committee report on the ADA lists various conditions, diseases, and
infections. Does the committee report offer these as examples of
impairments or examples of disabilities? Does the committee report not
state, two paragraphs later, that even these conditions or diseases are
not disabilities unless they substantially limit a major life activity?
Answer 5. The Senate Labor and Human Resources Committee Report
lists specific ``conditions, diseases, or infections'' that could
constitute physical or mental impairments.\11\ The report makes clear,
however, that a person with an impairment is not necessarily a person
with a disability. Rather, for purposes of the first prong of the ADA's
definition of disability, a physical or mental impairment constitutes a
disability only when it results in a ``substantial limitation on one or
more major life activities.'' \12\ The report explains that a person
who is paraplegic, for example, will have a substantial difficulty in
the major life activity of walking.\13\ However, even being paraplegic
is not a per se disability. Rather, the ADA's functional approach
requires a case-by-case analysis of how a specific physical or mental
impairment affects an individual's major life activities.
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\11\ S. Rep. No. 101-16, at 22 (1990).
\12\ Id.
\13\ Id.
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By removing the requirement that an impairment result in a
substantial limitation of one or more major life activities, the ADA
Restoration Act of 2007 would nullify the important distinction between
an ``impairment'' and a ``disability'' drawn by Congress. Under S.
1881's proposed definition of a disability, ``[p]ersons with minor,
trivial impairments, such as a simple infected finger . . .'' \14\
would be per se disabled and, therefore, covered by the ADA. This
contravenes Congress's intent together with Rehabilitation Act
protections that underlie this intent. Finally, a per se approach would
reintroduce paternalistic labels that disability statutes were intended
to eliminate by labeling as ``disabled'' all individuals with
impairments of any sort or degree--regardless of whether those
impairments are functionally limiting.
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\14\ Id.
Question 6. In a February 1986 Report titled Toward Independence
(linked here: http://www.ncd.gov/newsroom/publications/1986/
toward.htm), the National Council on Disability discussed different
approaches for estimating ``the number of Americans with
disabilities.'' The ``health conditions approach'' would include ``all
conditions or limitations which impair the health or interfere with the
normal functional abilities of an individual.'' This is still a
functional definition, though its ``interfere with the normal
functional abilities'' standard is more lenient than the
``substantially limit a major life activity'' standard in the
Rehabilitation Act and the ADA. The NCD report said that this
definition would cover more than 160 million people, or two-thirds of
the United States population at the time. This would be more than 200
million people today, at least four times as many as the disabled
population you identified in your prepared testimony and five times as
many as the disabled population identified in the ADA. The ADA
Restoration Act would be broader still, eliminating any requirement
that a condition limit function. Would the ADA Restoration Act not
include as disabled the large majority of the U.S. population, far more
than the ADA covers? Did Congress intend such a result?
Answer 6. The ADA Restoration Act of 2007,\15\ as drafted, would
include as disabled the large majority of the United States
population--substantially more than the ADA currently covers. By
removing the requirement that an impairment substantially limit a major
life activity to constitute a disability, coupled with prohibiting the
consideration of individual mitigating measures, S. 1881 would greatly
expand the ADA's reach, while at the same time diminishing its meaning.
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\15\ S. 1881, 110th Cong. (2007).
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Because any ``impairment'' would suffice to qualify as a disability
under S. 1881, employers would be obliged to address accommodation
requests from individuals with high cholesterol, back and knee strains,
colds, tennis elbow, poison ivy, an occasional headache, and myriad
other minor conditions that go far beyond any reasonable concept of
disability. Congress did not intend such a result.
In conclusion, rather than simply restoring the ADA's original
purpose, S. 1881 imposes significant new obligations on the employer
community and expands the ADA to cover virtually all persons with
impairments of any kind.
[Whereupon, at 4:00 p.m., the hearing was adjourned.]