Heart-Poundingly Important: ADA Restoration
Kaaryn Sanon of the National Disability Rights Network (NDRN) has generously sent me the following transcript of a recent Disability nation podcast (referenced in an earlier blog entry at ReunifyGally). The audio version of this podcast can be downloaded from the ADA Restoration Act blog.
Why the title “Heart-Poundingly Important”? Larry points out in the transcript below that often legislative issues seem so complicated and boring that many people just can’t make themselves care enough to pay attention. It can be hard to understand why they should matter to us, personally. How do the laws impact our daily lives?
Well, answer me this: have you used a TTY relay service or a video relay service lately? That service exists because of the Americans with Disabilities Act (ADA) of 1990. Many of us deaf people would be unable to use the phone without the ADA. So some parts of the ADA have already had a huge impact on our lives. But other parts of the ADA have failed–not because it was poorly written, but because the courts have destroyed them.
This is especially important for anyone who is looking for a job. You want to pay the rent and afford the food on your table, right? But the courts have left all Deaf, deaf, hard of hearing, and disabled people with far less protection for our rights in the workforce than we should have had. That’s why your heart should be pounding with worry if the ADA Restoration Act of 2007 doesn’t pass. That’s why you should pay attention to the following podcast:
Disability Nation Podcast: Debunking the Myths
Larry Wanger: Hi, it’s Larry and welcome to Disability Nation, an audio magazine by and for people with disabilities. Thanks for listening again this week, and I hope things are going well for you.
Well, I know that often when we talk about governmental or legislative issues, that some people kind of glaze over and wonder, “What does this have to do with me and why is it important?” Well, this week on the show we’re going to focus on the ADA Restoration Act, which was introduced back at the end of July – it happened to be the 17th anniversary of the ADA – why it’s important and how this legislation actually will affect people with disabilities across the country.
Now before you decide that this really doesn’t affect you and doesn’t matter, let me kind of stress a few things that are actually pretty startling when it comes to the ADA and what’s gone on related to employment and people with disabilities in the last couple years.
Obviously you’ve heard a lot about court decisions and situations where people who do have disabilities never get their claim heard or the case is thrown out because of the fact that the employer is somehow able to prove that the person doesn’t have a disability or isn’t disabled enough under the ADA to be covered by the law. As you’ll hear in my interview that’s coming up, that wasn’t the intent of Congress. They didn’t want cases to be thrown out simply because a person isn’t disabled enough to be covered. The intent is discrimination on the basis of disability – not proving that you have a disability.
Probably the most recent situation that people might be aware of where the case was thrown out of court because the employer was able to prove that the person didn’t have a significant disability that warranted coverage under the ADA was a case where an individual with a developmental disability sued WalMart for discrimination based on disability. This individual has a significant developmental disability and needed a lot of support related to employment, and yet the courts ruled that he really wasn’t disabled, so he couldn’t proceed with his case. And that has happened a number of times recently at various levels of the courts – from lower federal courts all the way up to the Supreme Court.
This week on the show I’ll feature an interview that I did with Lee Persley, who is with Senator Tom Harkin’s office, and we’ll talk a little bit about the ADA Restoration Act and also try to debunk some of the myths that have been put forward by those who oppose the bill that’s pending in Congress. I’ll also be bringing you an excellent presentation that highlights the need for this ADA Restoration Act and some of the issues that need to be considered that was presented by Day Al-Mohammed on her podcast called “Day in Washington.” To get more information about Disability Nation or to contact me, you can visit our website at www.disabilitynation.net, send email to email@example.com, or to leave voicemail, and/or listen to past episodes of Disability Nation, be sure to call (480) 302-9300.
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Larry: As I mentioned at the top of the show, the ADA Restoration Act was introduced into Congress on the 17th anniversary of the Americans with Disabilities Act. One of the purposes of this legislation is to restore the intent of Congress when it first passed the ADA back in 1990. If you’ve been following this issue, you know that a number of groups – especially the United States Chamber of Congress – have come forward in opposition of the ADA Restoration Act, citing a number of issues that businesses should be concerned about and why Congress should not pass this bill. I should let you know that I contacted the US Chamber of Congress on several occasions in the last couple of weeks to request an interview, but they declined.
Here to talk with me about some of the issues related to the ADA Restoration Act, why it’s being brought forward, and to talk about some of the issues raised in opposition to this bill is Lee Perselay. Lee is really the point person for Senator Tom Harkin on disability issues, especially related to the HELP Committee, which is the Health, Education, Labor, and Pension Committee. Lee, welcome to the show and why don’t you take just a second to tell listeners what you do exactly and what your position is with Senator Harkin’s office.
Lee: I’m actually Disability Counsel for Senator Harkin on the HELP Committee. HELP is the Health, Education, Labor, and Pensions Committee of the Senate, and I handle all the disability policy issues for Senator Harkin, so that includes working on a variety of initiatives, drafting legislation, working with disability advocates, and promoting four goals of the ADA, in terms of how we view most legislation, particularly with respect to PWD.
Larry: Well as we get into this discussion about the ADA Restoration Act, one of the things we hear a lot when we talk about this proposed bill is that its purpose is to restore the intent of Congress when it first passed the ADA. Can you say little about what Congress’ intent was? Who was meant to be covered by the ADA?
Lee: Sure. The definition of disability that Congress used in the ADA is the same definition that already existed in Section 504 of the Rehabilitation Act of 1973, so Congress expected that this definition that was in the ADA would be interpreted by the courts in a way that was similar to the way the courts had interpreted the definition under Section 504. However, what’s happened over the past few years is that the courts have interpreted this definition of disability much more narrowly than Congress had intended under the ADA. For example, in looking back through the legislative history, Congress intended that the protections in the ADA apply to all persons without regard to mitigating circumstances, such as taking medications or using an assistive device. And if you look back through the Senate and House committee reports, it says exactly that. In the senate report it says, 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.” The House Education and Labor Committee report says the same thing, and then goes on to say, “For example, a person who is hard of hearing is substantially limited in the major life activity of hearing, even though the loss may be corrected through the use of a hearing aid. Likewise, persons with impairments such as epilepsy or diabetes which substantially limit a major life activity, are covered under the definition of disability, even if the effects of the impairment are controlled by medication.”
So I think that’s clearly what Congress had intended when the law was originally passed, however, in a series of cases, the Supreme Court ignored this Congressional intent. For example, they’ve interpret the statute to exclude people with diabetes or epilepsy if they’re taking medication which alleviates some of their symptoms. That’s clearly contrary to the language that was in the committee reports.
So in the process, they’ve created this absurd and unintended Catch 22. People who have serious health conditions, like diabetes or epilepsy, who are fortunate enough to find treatments that make them more capable and independent and more able to work may find that they’re no longer covered by the ADA. And if they’re no longer covered under the ADA, then their request for a reasonable accommodation at work can be denied. On the other hand, if they stop taking their medication, they’ll be considered a person with a disability under the ADA, but they’ll be unable to do their job. So, this is not just absurd – it’s wrong – and it flies in the face of what Congress clearly intended when the law was passed in 1990.
Larry: Obviously we’ve heard a number of people in the disability community come forward in support of this legislation, but there’s also some opposition out there, most notably presented in a letter to Congress last month by the United States Chamber of Commerce. They cited a couple of reasons why this legislation is not good and why it will be problematic for businesses, so we’ll talk about two of those specifically. First of all, they stated in their letter that this is a wholesale change of the ADA and not just a modification – it’s a complete change – and that it will increase frivolous complaints and the number of people seeking rights and protections under the disabilities act. Is Congress concerned about this, or do you think this is a stretch and nothing that’s really going to be a reality?
Lee: I don’t really think that it’s what Congress expects to have happen. In reality, most people with disabilities just want an opportunity to work, and sometimes this means they need to be able to access the reasonable accommodations that will allow them to do their job – things like interpreters for people who are Deaf, or a desk that fits someone who uses a wheelchair, or a software program for someone with a visual impairment.
Sadly, the employment rate, as you know Larry, among people with disabilities is around 37 percent, which means that more than 60 percent of people with disabilities are not employed. And many of these people want opportunities to work and to have a job that’s commensurate with their skills and interests, just like everyone else. For those small percentage of people who do file complaints, even under the proposed ADA Restoration language, they still need to show that they’re an individual with a disability, not matter how it’s defined, and that they were discriminated against on the basis of disability. It’s not just enough to claim you’re an individual with a disability; you also have to prove the discrimination.
The problem right now is that people that Congress clearly intended to cover – again, people with epilepsy, diabetes, and cancer – are spending a lot of time trying to prove that they fit within this sort of aberrant court-created definition of disability and often they never get to being able to show the discrimination and it creates an untenable situation.
For example, in May, the 11th Circuit held that a person with mental retardation who was on Social Security and lived at home with his mother was not disabled under the ADA and said that was the case because he was not able to prove to the court that he was substantially limited in a major life activity. This clearly is not what Congress had intended when the law was originally passed.
Larry: The letter from the Chamber of Commerce also cited issues related to Title III of the ADA and its accompanying regulations that businesses follow when making their facilities and services accessible to people with disabilities. The letter specifically stated that it’s quite possible that businesses may face significant expenses in complying with this change or changes that might follow in regulations that they have to follow. I’ve actually looked at the language of the ADA Restoration Act and I don’t find much if anything that corresponds to Title III of the ADA, so are you aware of anything in this legislation that corresponds to Title III and might cause businesses to have to take on expenses related to the passage of this legislation?
Lee: I really disagree with the Chamber about the impact on businesses under Title III. I don’t think that there’s going to be much of an impact, if any at all.
As you know, the reality is that the accessibility obligations for places of public accommodation under Title III are already tailored to accommodate most people with disabilities, such as those who have visual impairments, those who are Deaf, and those who use wheelchairs or other mobility devices. I don’t think that ADA Restoration’s going to have any significant impact on that. The current requirements remove architectural and communications barriers. It’s pretty broad right now, and I anticipate it would easily encompass those who would now be issued a coverage under ADA Restoration. So I don’t really see much of an impact at all.
Larry: As we’ve said, the ADA Restoration Act was introduced in July – it happened to be the 17th anniversary of the ADA – and there’s a House version and a Senate version of the bills. But for those who are listening who might not be familiar with the workings of government and how bills become law, can you talk a little bit about the status of the legislation? Where it’s at? Hopefully it’s moving forward. And where we’re going with this and what happens next?
Lee: Sure, the bills are nearly identical – the House and Senate versions – but they’re each moving independently in the different chambers. The way that it works, Larry, is that first the bill gets referred to the appropriate committees in the Senate and House. In the Senate, that’s the Health, Education, Labor, and Pensions Committee. Senator Harkin is a member of that committee. In the House, the bill’s been referred to four committees: Judiciary; Education and Labor; Transportation and Infrastructure; and Energy and Commerce. Some of these committees may have hearings on this issue and all the committees will have an opportunity to consider the bill. Once the bill passes out of committee, it goes to the floor of the Senate and the House, and if it passes in both, then it goes to President for his signature. Usually this process, as you know, takes some time to complete.
Larry: So I know there’s been a lot of positive response and support for this legislation, both by Republicans and Democrats, in that we have a number of cosponsors on the House side right now, but what can people do who might be listening to this show who want to help to support this legislation and move it forward?
Lee: I think the most important thing that people can do is to become knowledgeable about the issue and then to call their members of Congress – Senators and Representatives – and encourage them to cosponsor the bill – either S. 1881 in the Senate or H.R. 3195 in the House. Seventeen years ago, the ADA passed with overwhelming bipartisan support. The civil rights of people with disabilities is not a partisan issue, and should not be a partisan issue. I think bipartisan support is critical in making ADA Restoration a reality. We need all your listeners to reach out to their members of Congress, regardless of their party affiliation, and ask them to support restoring the civil rights protections of people with epilepsy, diabetes, and cancer, as well as other disabilities.
Larry: Well, we certainly appreciate Senator Harkin’s support for this legislation and other disability issues over the years. He’s been a real champion for the disability community and I want to thank you for taking the time to talk with me today about this legislation.
Lee: Sure, it was my pleasure Larry. Thank you.
Larry: I’ve listed a number of resources and info items on the Disability Nation website so you can learn more about this important legislation and get involved. To get more details, be sure to visit the Disability Nation website at www.disabilitynation.net.
Want to learn more? See my running list of blog entries on the ADA Restoration Act from all over the web. Also, don’t miss these: One group of activists has posted a short list of simple ideas of things you can do. And do check out the ADA Restoration Blog for updates. Or browse through more background information on the ADA Restoration Act. Or contact your legislators (just be sure to uncheck the box asking to be added to their action alert email list, unless you want to receive them).