Proposal reinterprets 'disability'
Last Updated on 10/16/2008
Published on 7/18/2008
By Jim Elekes
On Thursday, June 26, while many Americans were considering the Supreme Court's 2nd Amendment decision regarding Washington, D.C., gun control, another equally important story passed many under the radar. The previous evening, the House of Representatives passed by a vote of 401-17, the Americans with Disabilities (ADA) Restoration Act, which is designed to clarify the intent of the initial legislation approved by Congress and signed into law by President Bush's father in July 1990.
The intent of the original ADA legislation was to level the playing field for individuals with disabilities. Unfortunately, the overall result was helping some and not others. For example, if you had an incurable disease, such as insulin-dependent diabetes, often referred to as "Type I," that affected your everyday quality of life but was controlled by medication. You were not considered disabled, the Supreme Court determined, and were not afforded the protections of the ADA.
Through the cooperation of advocates representing the over 54 million Americans with disabilities, the public and private sectors and the bi-partisan efforts of the House, the initial intent of the ADA legislation is on the road to being fully restored. Our own Congressional delegation voted unanimously to endorse the ADA Restoration legislation, and it is expected to be taken up by the senate later this summer or before the November general election. President Bush is expected to follow the lead of his father and sign the ADA Restoration into law before he departs Washington in January 2009.
How does it differ from its predecessor? The ADA Restoration Act provides more generous protections than the original. As a result, the public and private sectors were convinced it was in their interest to negotiate with the disability community as the proposed legislation directs the courts to broadly interpret the definition of disability but not to include every impairment under the definition. It lays out specific parameters to evaluate what constitutes "substantially limits activities of daily life." Someone with an actual or perceived impairment will be able, quite clearly, to seek a judgment on the basis of that impairment.
For example, an applicant for a position requiring "good vision" can no longer be discriminated against on the basis of eyesight as long as he/she has the ability to correct the vision with prescribed eyeware.
The present ADA language that defines disability as "an impairment that substantially limits one or more of the major life activities" has greatly restricted many of the protections intended to be provided. As a result, it gave the Supreme Court little choice when confronted by the option to narrowly interpret "substantially limits" and exclude those with significant medical conditions affecting quality of life, or to expand the definition and include those with minor impairments who the Congress did not intend to include in the Act's protections. Over the 18 years since its initial passage, the court has overwhelmingly and consistently selected the former definition. Passage of the ADA Restoration should remedy this shortcoming.
With the "Baby Boomer" generation now beginning its retirement, there is likely to be a shortfall in available individuals to fill the positions left by the retirees. The ADA Restoration Act will aid greatly in clarifying what is and is not a disabling condition that needs be accommodated when considering a qualified individual with a disability for employment.
James J. Elekes
Surfside Beach
Mr. Elekes is a presidential appointee and immediate past public member of the United States Access Board, Washington, D.C.
