ADA Restoration:

1. ADA Restoration: Doing What Congress Intended DREC Region 8 Presentation June 27, 2007

2. The Purpose of the ADA Signed into law by President H. W. Bush in 1990: “This law is powerful in its simplicity. It will ensure that people with disabilities are given the basic guarantees for which they have worked so long and so hard: . . . the opportunity to blend fully and equally into the rich mosaic of the American mainstream.”

3. ADA History The first bill introduced by Representative Tony Coelho and Senator Lowell Weicker, in 1988, contained a definition of disability modeled on the recommendations of the National Council on Disability.

4. ADA History The ADA eventually adopted the definition of disability included in Section 504 of the Rehabilitation Act of 1973, the federal civil rights statute for people with disabilities.

5. Who’s protected by the ADA? • Anyone who has a “disability,” meaning anyone • With a physical or mental impairment that substantially limits one or more of the major life activities of such individual; • With a record of such an impairment; or • Who is regarded as having such an impairment.

6. Say what? Huh? Wonder what that really means? Am I protected from discrimination?

7. What Does the ADA Do? • Protects people with disabilities from discrimination and advances their interests in a variety of ways. These laws are written in a series of Titles, I through V.

8. Title I of the ADA • Prohibits employment discrimination based on disability • Requires employers to provide reasonable accommodations that will allow an individual with a disability to do the job

9. Title I Says: • No (entity) shall discriminate against a ‘qualified individual with a disability’ because of the disability of such individual in regard to (employment). • Qualified individual with a disability is one who, with or without reasonable accommodation, can perform the essential functions of the job.

10. AND Title II • Prohibits discrimination in public services and programs • Requires improvements in services like public transportation

11. AND Title III • Ensures access to public accommodations like restaurants, hotels, movie theatres, stores, and offices

12. Titles IV and V • Title IV – provides for telecommunication relay services for hearing and speech impaired people, and for closed captioning • Title V – contains a lot of details that affect the other parts of the law - including a listing of the few people Congress did not want covered by the law (illegal drug users, transvestites)

13. Who’s protected by the ADA? • Anyone who has a “disability,” meaning anyone • With a physical or mental impairment that substantially limits one or more of the major life activities of such individual; • With a record of such an impairment; or • Who is regarded as having such an impairment.

14. Who’s Protected by the ADA? Congress’ Intent • Legislative history (bipartisan committee reports) recognize that people with epilepsy, hearing impairments, legal blindness, HIV, paraplegia, and mental retardation would automatically be covered by the ADA. • Legislative history also states that people who are perceived and regarded as if they had a disability would be covered by the ADA.

15. Supreme Court Recognizes Broad Coverage of Section 504 • In 1987, School Board of Nassau County v. Arline, the Supreme Court recognizes that “society’s myths and fears about disability and disease are as handicapping as the physical limitations that flow from actual impairment.” • Court broadly construes the law to apply to a woman with asymptomatic tuberculosis.

16. Administrative Agencies Under Bush Adopt Broad ADA Coverage • Department of Justice states that people with disabilities should be assessed without regard to mitigating measures. • EEOC interprets conditions such as contagious and non-contagious diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, specific learning disabilities …as automatically covered by the ADA.

17. Coverage under the Rehabilitation Act of 1973 • Epilepsy • Mental Retardation • Diabetes • Bipolar Disorder • Hearing Impairment • Multiple Sclerosis • Vision in One Eye Only • Post Traumatic Stress Disorder • Heart Disease

18. Who’s Not Being Covered by the ADA • Epilepsy • Diabetes • Multiple Sclerosis • Inability to Use Hand (crushed hand) • Cancer • Bipolar Disorder • Mental Retardation • Hearing Impairment • Myopia • High Blood Pressure • Post Traumatic Stress Disorder • Heart Disease

19. So What Went Wrong? • Supreme Court decisions in ADA and employment cases narrowly construe coverage. • In 1999, the Court ruled that that any “mitigating measure” – for example, medicine, a prosthesis, hearing aid, diet, exercise, or any other treatment – must be considered in determining whether an individual’s impairment substantially limits a major life activity. (Sutton trilogy)

20. Say again? If medication helps control your seizures, your employer or a court may now decide that your impairment (epilepsy) is not substantial enough and you are not protected from discrimination by the ADA.

21. That’s exactly what happened to Charlotte Chenoweth • Charlotte had over 15 years nursing experience when she had her first seizure and was diagnosed with epilepsy. • Charlotte’s employer refused to accommodate her by altering her work hours for a few months while she was getting her seizures under control.

22. Charlotte wasn’t protected by the ADA • Charlotte challenged the refusal to accommodate her; at first, her employer agreed that her epilepsy was a “disability” under the ADA. • After the Supreme Court issued its 1999 “mitigating measures” decisions, however, her employer changed its tune. • The court agreed with the employer’s argument that Charlotte’s epilepsy did not qualify as a “disability.”

23. James Todd wasn’t protected either • James has lived with epilepsy since he was 5 years old. While medication helps, he still has seizures about once a week. • In 1996, James was hired as a stocking clerk. • Several weeks into his job, he had a seizure and was forced to tell his supervisors about his condition.

24. James was fired, and found out that he wasn’t protected by the ADA • When James was out sick several months later, his employer fired him. • James challenged his firing, but the court decided that he was not disabled enough to claim protection under the ADA. • The fact that James lay shaking on the floor, unable to talk during his seizures amounted to “only” a “momentary physical limitation” “which could not be classified as substantial.”

25. But James would have been protected . . . • In dismissing his claim, the court recognized that James would have been protected before the Supreme Court’s 1999 “mitigating measures” decisions: “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.”

26. Charles Littleton Wasn’t Protected by the ADA • Mr. Littleton has significant intellectual and developmental disabilities and lives on SSDI (in his mother’s home). He applied for a job as a cart-pusher with Wal-Mart. His job counselor from the local ILC got him an interview, but was not allowed to accompany him on that, even though both Mr. Littleton and the coach thought he would need assistance understanding the questions and talking to the employer. When he did not get the job, Mr. Littleton felt he had been discriminated against and filed a claim under the ADA.

27. The Court finds that Mr. Littleton has no employment rights under the ADA • The appellate court held that even though, as it stated: Mr. Littleton had “mental retardation” with cognitive skills at the level of an 8 year old; needed a counselor (coach) on the job, until he learned the routine; and had difficulty thinking and communicating; • Because he had graduated from high school with a certificate in special education, could drive, and could read, • Mr. Littleton was not substantially limited in major life activities of thinking and learning.

28. Disabled Enough to Qualify for SSDI, But Not for Protection Under the ADA • In addition, the court found that Mr. Littleton could work in some jobs, even though those were limited in range and types, and even though he was so impaired that he qualified for SSDI, he was not limited in the major life activity of working.

29. We don’t want this to happen to you or to someone you love • Congress needs to fix the definition of “disability” so that the law covers all individuals who experience discrimination based on disability. • This action is needed to ensure that the fundamental promise of the ADA – equality of opportunity for all Americans – is fulfilled.

30. ADA Restoration • In 2004, National Council on Disability Report “Righting the ADA” identifies the major problems with ADA coverage created by the Supreme Court’s decisions, and develops a model bill to correct the problems created by the Court.

31. Congressional Activities on ADA Restoration in Last Term • House Subcommittee on the Constitution (Judiciary Committee) ADA Oversight Hearing in September 2006. • H.R. 6258 introduced by Sensenbrenner (R-WI) then Chair of Judiciary Committee, Conyers (D-MI), Ranking Member, and Hoyer (D-MD), House Minority Whip.

32. What’s Happening in Congress Now • Searching for Bi-partisan cosponsors of an ADA Restoration fix in Senate • Senate HELP committee considering an ADA oversight hearing • Senators Harkin and Kennedy commit to addressing the problem of coverage by the ADA. • House is considering re-introduction of a bipartisan ADA Restoration bill this term

33. What is the Proposed New Definition? • If you have a disability (defined as an impairment), and are discriminated against on the basis of such impairment; • or because of a history or record of such impairment; or • because you are regarded or treated as having such an impairment, • you are covered by the ADA.

34. New Definition Continued • Determination of whether one is covered by the ADA shall be made without regard to whether an individual uses mitigating measures or whether manifestations of such impairment are episodic, in remission, or latent. • Physical and mental impairments are defined in the bill and are essentially the regulatory definitions of impairment used by DOJ and EEOC.

35. ADA Restoration Principles and Legislation • H.R. 6258 essentially adopts NCD legislative language on definition and coverage, and includes broad construction requirement. • The Consortium of Citizens with Disabilities (CCD ) develops a model bill – proposed ADA Restoration – focused on definition and coverage that solves the problem created by the Courts.

36. H.R. 6258 and CCD Model Legislation Both: • Eliminate ‘mitigating measures’ test • Eliminate ‘substantially impaired in major life activities’ as part of definition • Require broad construction of law • Assign implementing agency responsibility for regulations to carry out law on definition

37. Why Address the Definition Only? • Supreme Court rulings created several significant problems, but definition is area on which no other choice than a legislative solution; strong consensus cross disability groups on solution; and addresses most significant of ADA problems. • CCD is committed to addressing all the problems created by the Supreme Court, which must eventually be addressed by Congress, to ensure the law is in line with Congressional intent. • Political and strategic realities are at play.

38. Let the ADA Be the Law Congress Intended • The focus of the law is/should be on whether a person with a disability can perform the essential functions of the job – with or without an accommodation. • If a condition is used as a reason to deny you a job, the employer should have to show why the absence of such a condition is necessary (or that to accommodate your disability would be an undue burden)

39. NOT whether you have a disability and how severely impaired you are by the condition or disability!

40. So, let’s meet some of the PLAYERS who can help restore the ADA

41. Tony Coelho was the original sponsor of the ADA in the House • D-CA, then majority whip; • Tony has epilepsy and takes medication every day; • Tony’s understands that stereotypes, fears, mistaken beliefs, and prejudices can be far more limiting than his epilepsy; • He wanted to cover people with epilepsy and other disabilities.

42. Congressman Steny Hoyer (D-MD) House Majority Leader Championed passage of the ADA in 1990 Introduced ADA Restoration in the 109th Congress along with Congressman Jim Sensenbrenner

43. Congressman F. James Sensenbrenner, Jr. (R-WI) Introduced ADA Restoration in the 109th Congress Along with Congressman Steny Hoyer

44. Congressman John Conyers, Jr. (D-MI) Chair of the House Judiciary Committee Supported ADA Restoration in the 109th Congress

45. Senator Tom Harkin (D-IA) Championed passage of ADA in 1990 Member of the Senate HELP Committee

46. Senator Edward Kennedy (D-MA) Chair of the Senate HELP Committee (Health, Education, Labor, and Pensions) Championed passage of the ADA in 1990

47. Senator Orrin G. Hatch (R-UT) Current Member, and Former Chair, of the Senate HELP and Judiciary Committees

48. Democrats Kennedy (MA) Dodd (CT) Harkin (IA) Mikulski (MD) Bingaman (NM) Murray (WA) Reed (RI) Clinton (NY) Obama (IL) Brown (OH) Republicans Enzi (WY) Gregg (NH) Alexander (TN) Burr (NC) Isakson (GA) Murkowski (AK) Hatch (UT) Roberts (KS) Allard (CO) Coburn (OK) Independent: Sanders (VT) Senate HELP Committee Members

49. Other Senators • Majority Leaders - Reid (NV); Durbin (IL)Majority Whip; Dorgan (D-ND) Democratic Policy Committee Chair • Minority Leaders – McConnell (KY); Lott (MS) Minority Whip; Hutchinson (TX) Republican Policy Committee Chair

50. And You!