Restoring the ADA by Pamela R. Williamson Director of Training and Technical Assistance DBTAC: Southeast ADA Center, Burton Blatt Institute at Syracuse University June 2007 When President George H.W. Bush signed the Americans with Disabilities Act (ADA) into law on July 26, 1990, the event represented an historical benchmark and a milestone in America's commitment to full and equal opportunity for all of its citizens. The ADA was the world’s first comprehensive civil rights law for people with disabilities./1/ [Endnotes are listed at the end of this document.] The purpose of the ADA was “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”/2/ The provisions of the ADA addressing architectural, transportation, and communication accessibility have changed the face of American society in numerous positive ways by enhancing the independence, full participation, inclusion, and equality of opportunity for individuals with disabilities./3/ For example, many doctor’s offices, hospitals and courthouses are more accessible to people who use wheelchairs. Local theaters offer some of their live performances with audio descriptions or sign language interpreters for persons with visual or hearing impairments. Unfortunately, from a legal standpoint, not all of the news is positive. Over the past 17 years, some of the fundamental provisions of the ADA have been narrowed by Supreme Court rulings. Consequently, the ADA currently does not provide the scope of opportunities and protections that were originally expressed by the legislators and disability advocates involved in the creation and passage of the law./4/ “When the ADA was enacted, Congress intended that the executive agencies and the courts would continue the broad, flexible interpretation of the definition [of disability] and scope of coverage under Section 504 [of the Rehabilitation Act of 1973] previously adopted by executive agencies and courts.”/5/ In addition the Supreme Court affirmed in its decision in the School Board of Nassau County v. Arline/6/ that the “Section 504 definition [of disability] ‘acknowledged that society’s myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment’. Therefore, the Court emphasized that “Section 504 of the Rehabilitation Act was designed to protect individuals who are discriminated against because of the negative attitudes of others toward them, whether or not they have an actual physical or mental impairment.”/7/ In a series of ADA cases alleging employment discrimination on the basis of disability (e.g., Sutton v. United Airlines/8/, Alberston’s v. Kirkingburg/9/, Murphy v. United Parcel Service/10/, and Toyota Motor Manufacturing v. Williams/11/), the Supreme Court has “moved away from a broad remedial interpretation it had previously given to the Rehabilitation Act [of 1973 and its amendments] and the disability definition in the Arline case”/12/. In its place, the Court adopted, and has since applied, a significantly narrower approach.” /13/ This narrower approach is considered to be similar to the reasoning historically used by the courts in Social Security and disability benefit cases. These cases placed the burden on the individual to prove that s/he is medically disabled enough to receive certain benefits. The impact of the court’s new application of medical criteria to employment issues is that millions of Americans who want to work - and who were otherwise intended by Congress and the ADA to be able to work free from discrimination - have had the door of opportunity shut in their faces because of these legal decisions./14/ As a result, an individual may be not be hired or may be fired because s/he has a physical or mental condition that may or may not pose an actual barrier to his/her ability to perform a particular job. Many employees with disabilities have no recourse under the law as it is being interpreted, because courts focus on whether the employee is covered or not, rather than on whether illegal discrimination has occurred. The authors of the ADA did not envision this scenario when the law was developed and passed./15/ Many people who are committed to the basic principles of civil rights, including supporters of the ADA, believe that these court decisions and the reasoning behind them are deeply flawed. They believe that the courts have ignored common sense, defied clear Congressional intent, and disregarded explicit federal regulations when interpreting the ADA. Moreover, the courts have ignored legal history and precedence, including Section 504 of the Rehabilitation Act of 1973 and state anti-discrimination laws that allowed people to sue for unfair discrimination based upon a broad definition of disability./16/ The ADA Restoration Act The National Council on Disability (NCD), in its December 1, 2004 report, Righting the ADA, urged the [George W. Bush] Administration and Congress to support legislation that will “right” the course of the ADA and protect the civil rights of people with disabilities. It further states that “legislation is urgently needed to restore the ADA to ‘assure equality of opportunity, full participation, independent living, and economic self-sufficiency’ for Americans with disabilities.” The report included a draft bill, the ADA Restoration Act of 2004, designed to restore the original intent of the ADA. /17/ Responding to the NCD report and similar concerns of national disability rights advocates, Representatives James Sensenbrenner, Jr. (R-Wis.) and Steny H. Hoyer (D-Md.), introduced HR 6258, the Americans with Disabilities Act Restoration Act of 2006, on September 29, 2006. HR 6258 is intended to restore the definition of disability to the original meaning intended by Congress in 1990. The legislative goal is to clarify that the ADA covers any individual with an impairment, as defined by the bill, without consideration of the severity of the impairment, the use of mitigating measures, or whether the impairment is episodic or long-term. In addition to restoring the definition of disability, the ADA Restoration Act proposes technical amendments to the ADA, including replacing the phrase “against an individual with disability” with “on the basis of disability.” This change will harmonize the ADA with the Civil Rights Act of 1964 and other civil rights laws that prohibit discrimination on the basis of race, color, religion, national origin, and sex. /18/ This change will also make clear that the ADA is intended to be equal to the legal provisions of the Civil Rights Act of 1964 and other civil rights laws. HR 6258 also amends the definition of “qualified individual,” as defined in Title I of the ADA, to ensure that employers focus on the essential job functions or the employment qualifications of an individual with a disability and not on the disability itself./19/ The ADA Restoration Act would allow “Americans who have been denied the right to demonstrate that they have been subjected to discrimination…[to] be judged on the basis of their abilities, not their actual or perceived disabilities.”/20/ The Act continues to be a work in progress and there is much to be done. At press time, the Congressional Health Committee is considering a hearing, however, a date has not been scheduled./21/ 1 U.S. Equal Employment Opportunity Commission and the U.S. Department of Justice. (1991). Americans with Disabilities Act Handbook (EEOC-BK-19). Washington, DC: U.S. Government Printing Office. 2 Americans with Disabilities Act of 1990, Pub. L. No. 101-336, §2, 104 Stat. 328 (1991). 3 National Council on Disability. (2004). Righting the ADA. Washington, D.C. Retrieved June 27, 2007 from www.ncd.gov/newsroom/publications/2004/righting_ada.htm. 4 Ibid. 5 Consortium of Citizens with Disabilities. (2006). Background and Justification for and Summary of the ADA Restoration Act. Retrieved June 27, 2007 from http://aucd.org/docs/policy/civil_rights/ada_restoration_act_background_0906.doc. 6 School Board of Nassau County v. Arline, 480 U.S. 273 (1987). 7 op. cit. Consortium of Citizens with Disabilities. 8 Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999). 9 Albertsons, Inc. v. Kirkingburg, 527 U.S. 555 (1999). 10 Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999). 11 Toyota Motor Mfg.,KY., Inc. v. Williams, 534 U.S. 184 (2002). 12 op. cit. School Board of Nassau County v. Arline,. 13 Sensenbrenner, F. James (March 26, 2007). Transcript: Third Annual Tony Coelho Lecture in Disability Employment Law and Policy. Retrieved June 27, 2007 from www.nyls.edu/pdfs/SensenbrennerSpeech.pdf. 14 Ibid. 15 Hearing before the Subcommittee on the Constitution of the Committee on the Judiciary House of Representatives, 109th Congress, Second Session (September 13, 2006), Transcript: Americans With Disabilities Act: Sixteen Years Later, Retrieved June 27, 2007 from http://commdocs.house.gov/committees/judiciary/hju29870.000/hju29870_0f.htm 16 Ibid. 17 op.cit. National Council on Disability. 18 op.cit. Sensenbrenner. 19 op.cit. Sensenbrenner. 20 op. cit. Consortium of Citizens with Disabilities. 21 DBTAC: Regional ADA Centers ADA Audioconference, (May 15, 2007). Transcript: ADA Restoration Act: Legislative Update. Retrieved June 27, 2007 from www.ada-audio.org/Archives/index.php?type=transcript&id=2007-05-15. ADA Restoration Act Resources National Council on Disability Report: Righting the ADA (December 1, 2004) www.ncd.gov/newsroom/publications/2004/righting_ada.htm Americans with Disabilities Act: Sixteen Years Later, Hearing before the Subcommittee on the Constitution of the Committee on the Judiciary House of Representatives, 109th Congress, Second Session (September 13, 2006) http://judiciary.house.gov/oversight.aspx?ID=259 Sensenbrenner/Hoyer Introduce Bipartisan Legislation Restoring Americans with Disabilities Act Protections, Press Release (September 29, 2006) www.nyls.edu/pdfs/Sensenbrenner_Hoyer.pdf H. R. 6258: ADA Restoration Act (September 29, 2006) http://thomas.loc.gov/home/gpoxmlc109/h6258_ih.xml Third Annual Tony Coelho Lecture in Disability Employment Law & Policy: Presented by The Honorable F. James Sensenbrenner, Jr. (March 26, 2007) Overview: www.nyls.edu/pages/5041.asp Transcript: www.nyls.edu/pdfs/SensenbrennerSpeech.pdf DBTAC: Regional ADA Center ADA Audioconference Series ADA Restoration Act: Legislative Update (May 15, 2007) www.ada-audio.org/Archives/index.php?type=transcript&id=2007-05-15 Consortium for Citizens with Disabilities: ADA Restoration Page www.c-c-d.org/task_forces/rights/tf-rights-ada.htm Consortium for Citizens with Disabilities: ADA Restoration Act Fact Sheet http://aucd.org/docs/policy/civil_rights/ada_restoration_act_background_0906.doc (September 2006) Consortium for Citizens with Disabilities: Principles Underlying Proposed Legislation Prohibiting Discrimination in Employment against Persons with Correctable and/or Episodic Conditions www.c-c-d.org/task_forces/rights/ada/ADA-Principles%20to%20Restore%20the%20ADA-July,%202005.pdf Consortium for Citizens with Disabilities: Specific Problems with the Definition of Disability in the Americans with Disabilities Act as Interpreted by Federal Courts www.c-c-d.org/task_forces/rights/ada/ADA-Problems%20with%20ADA%20Definition-July,%202005.pdf Consortium for Citizens with Disabilities: Vote Yes on the ADA Restoration Act www.c-c-d.org/task_forces/rights/ada/TPs.pdf Need Additional Information? DBTAC: Southeast ADA Center 1419 Mayson Street, Atlanta, GA 30324 (404) 541-9001 (v/tty) (800) 949-4232 (v/tty) (404) 541-9002 (Fax) sedbtacproject@law.syr.edu www.sedbtac.org Funded by the National Institute on Disability and Rehabilitation Research of the U.S. Department of Education #H133A060094