Further Defense Against US Chamber of Commerce
[If you were looking for my telethon post, then that’s here. THIS post returns regular readers to the ADA Restoration Act.]
You may recall from my earlier posts on the subject that the US Chamber of Commerce has been fighting against the ADA Restoration Act. The US Chamber of Commerce is a powerful opponent: they represent 3 million businesses. That’s 3 million potential employers who want the right to turn away qualified job seekers who just happen to have disabilities. They want to be able to claim that these workers are “too disabled to work” but “not disabled enough” to be protected under the ADA.
I appealed to all lawyers and amauteur arm-chair law-hobbyists to pick apart the US Chamber of Commerce letter and help explain to the rest of us exactly where the US Chamber of Commerce has gotten it wrong. That way, advocates like YOU could write better-informed letters of complaint to the US Chamber of Commerce or letters to your legislators. One lawyer, Randy Chapmann, responded, and I posted his analysis.
Now another lawyer, David Ferleger, has followed suit with an analysis of his own:
I am David Ferleger, Philadelphia, PA. I write as a lawyer who has done disability law for decades, argued in the US Supreme Court five times, and who currently has an ADA case pending before the Supreme Court. http://www.ferleger.com
The ADA Restoration Act has been criticized for:
1. Changing the definition of disability by deleting the “substantially limits…major life activities” phrase in favor of the simpler “physical or mental impairment.” Result would allegedly be that, for example, anyone with reading glasses would be considered disabled for ADA purposes.
2. Reversing “rule” that employers determine the essential functions of a job.
3. Granting deference to federal government agencies, taking away judicial authority.
4. Expanding coverage to ADA Title III for access to public facilities.
It is too early to interpret the effect of the ADA Restoration Act, at least in this sort of informal discussion.
A few comments, however, are appropriate; these are numbered to correspond with the critiques above:
1. The “substantialy limits…major life activities,” as interpreted by the Supreme Court, has caused confusion and difficulty, and much conflict among the circuit courts and lower courts. I have a petition pending before the US Supreme Court, Littleton v Wal-Mart, Inc., No. 07-123, on behalf of Charles Littleton, a man with mental retardation, whom the court of appeals essentially held was not disabled. The core defiinitional issue in that case os on “major life activities” and the circuit courts are fractured. Thus, the current law has caused difficulty. The ADA Restoration Act seeks to ease that difficulty.
2. Courts have long both deferred to employers on essential job functions, and also been able to pierce pretextual definitions if employers were wrong or unreasonable or discriminatory.
3. Courts routinely defer, or give great weight, to the federal agencies charged by Congress with implementing federal laws.
4. The ADA covers public facilities. Having consistent rules across employment and public access is something that Congress reasonably seems to favor.
If anyone wants the Certiorari Petition on the above ADA issue, please feel free to email me at david[AT]ferleger.com (replace “[AT]” with @)
Are YOU a lawyer or someone interested in the law? Are there any more problems with the US Chamber of Commerce letter that Randy Chapmann and David Ferleger have not yet covered? If so, let me know — either via email at ashettle (at) patriot.net, or by leaving a comment here. OR, even better: if you have a blog, then blog about it and give me the link.
Have YOU blogged about the ADA Restoration Act of 2007 since July 26 this year? Have I overlooked you in my on-going list of blog posts on the ADA Restoration Act? Please let me know and give me the exact URL address for your blog posts. GO AND BLOG!