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First Published Wednesday, 16th July, 2008.


ADA Amendments Act

*ADA Amendments Act
Senate Roundtable* – Who Showed Up, What Went Down JFA is a free service of
the American Association of People with Disabilities
Today’s JFA:  *ADA Amendments Act Senate Roundtable: Who Showed Up &
What Went Down<http://mail.google.com/mail/?ui=2&view=js&name=js&ver=80lCHVuPxfI&am=T_E4pcLnE08YZQ#11b2d7385b3cb889_LETTER.BLOCK3>
* *ADA Restoration: Frequently Asked Questions
*  *ADA Amendments Act Senate Roundtable: Who Showed Up & What Went
Down* [image:
U.S. Capitol]<http://rs6.net/tn.jsp?e=001uHFZqC1SPmSjO-yMH6XxkCKXRQqJfiatXXatIJlu2axFRx8_Xa686K4Hlg5h1ykUJPceQg2TWj3Yzp8_QXfmvBmNqe_X__X06ZadHy_c8iU=>The
Senate Health, Education, Labor, and Pensions Committee (HELP Committee)
convened a public Roundtable meeting/hearing yesterday entitled, “Determining
the Proper Scope of Coverage for the Americans with Disabilities
chaired by Senator Tom Harkin (D-IA).

*Who Showed Up?
*Senators: *Tom Harkin (D-IA) Mike Enzi (R-WY)
Orrin Hatch (R-UT)
Patty Murray (D-WA)
Pat Roberts (R-KS)

What went down?*

Speaking in defense of the bill that passed the House 402-17 on June 25
were law professors Chai Feldblum (Georgetown University), Sam Bagenstos
(Washington University), Carey McClure (an electrician with muscular
dystrophy who lost his employment discrimination case on the grounds that he
wasn’t “disabled enough” to qualify for civil rights protections under the
ADA), attorney Jo Anne Simon (a disability rights lawyer with education
expertise), and Michael Eastman from the U.S. Chamber of Commerce.

Sue Gamm, an education consultant from Chicago, expressed concerns that the
House bill had the potential of creating rights for more students under the
ADA and Section 504 of the Rehabilitation Act in the context of  K-12
education, and were that to happen, there may be unintended
consequences of…

…Read the rest<http://rs6.net/tn.jsp?e=001uHFZqC1SPmRZlpGvS1qC54npST5ralS_yzjYyBidM6jJMfy8jXpPy27MGpLaHv58Z747bSsdtf1r-2c_wivuYNy3cz7RoOs5-zcWu649YavjFf66mLFDRymPmTLpVOLLAhEfIV5Ebn0TbS4oUgGhU50mq26D204Ch8utcrW4BolJBe98bcmiJg==>to
find out  who
else expressed concerns and how the supporters addressed them.
*ADA Restoration: Frequently Asked Questions (FAQs)
*  *Q: Why did the name change?
*A:* Since originally introduced in 2006, we’d all grown used to and fond of
calling this legislation the “ADA Restoration Act.” The important point is
that the effort can still be referred to as restoration of the ADA – a
return to original Congressional intent. The legislation’s name was changed
to the ADA Amendments Act of 2008 to avoid confusion by signaling that the
language as negotiated by the employer and disability communities was
different from the legislation as introduced in July 2007. Particularly for
Members who either did not support or had misgivings about the previous
legislation, the name change was helpful in demonstrating that this was
something other than the bill with which they had previously held concerns.

*Q: Why are we trying so hard for this Congress? Why not wait?
*A:* Optimistic of the effect of a new Congress and administration on ADA
restoration efforts, some advocates have wondered why we don’t wait for the
next Congress to revisit this legislation and get it passed. First, there
are no guarantees of a more favorable outcome in a future Congress. Most
importantly, however, because there are scores of people with disabilities
all across this country who have been told by the courts for nearly a decade
that they do not have civil rights in the workplace, we cannot wait to act.
Tabling efforts for a future Congress asks these individuals to continue
waiting for their civil rights and can promise them nothing for it.

Practically and politically speaking, there are many conservative Democrats
in the House especially who will be reluctant to vote for a civil rights
bill that affects employers in their home districts and that is opposed by
the major groups representing employers at the national and local levels. We
recognize that support at least neutrality from the employer community is
necessary to get a bill through both the House and the Senate in future
Congresses (which is consistent with the experience of the passage of the
original ADA).

*Q:  What is the “deal”?
*A:* The negotiation reached between the disability and employer communities
is both legislative language (discussed below) and the promise to one
another that we will uphold the balance struck by defending the bill against
amendments to the language unless they are mutually agreed upon.

The negotiated language overturns three Supreme Court decisions that came
down in 1999 (called the “Sutton trilogy” because the lead case was Sutton
v. United Airlines and all three dealt with a similar issue and were decided
on the same day) which decided for the first time that a person cannot use
the ADA to challenge discrimination if they are able to manage the symptoms
associated with their disability by using medication, prosthetics, or other
means of diminishing their level of impairment. Under the negotiated
language, courts would evaluate whether a person qualifies as “disabled”
under the ADA without considering these measures (what courts call
“mitigating measures”). This is a HUGE improvement for people with
conditions like epilepsy, diabetes, depression, bipolar disorder, cancer,
and many others who will have a much easier time establishing that they fall
within the ADA’s protected class.

The legislation would also overturn a 2003 Supreme Court decision called
Toyota v. Williams. In that case, the court ruled for the first time that
the standard for establishing the existence of a disability under the ADA is
a demanding standard that should be interpreted narrowly. The court said in
that unanimous decision that the term “substantially limited in a major life
activity” means “prevented or severely restricted in an activity that is of
central importance to most people’s daily lives.” The negotiated language
makes clear that Congress wants the ADA definition to be interpreted broadly
in a manner that protects the full range of individuals who experience
discrimination on the basis of disability. It clarifies that “substantially
limits” does not mean “prevents or severely restricts” but instead means
“materially restricts,” which is a new term defined in the report language
as “more than moderate but less than severe”.  The negotiated language also
includes for the first time in the statute a non-exhaustive list of major
life activities and major bodily functions that is designed to restore
protections for many people who have had difficulty establishing coverage in
the wake of Toyota v. Williams and the Sutton trilogy.

The bill would also make it clear that when you are evaluating whether a
person with an episodic condition like epilepsy or depression is
substantially limited or materially restricted, you evaluate them when their
condition is presenting symptoms.

Finally, the bill includes a broad “regarded as” prong of the definition
that makes clear that you are protected by the ADA if you experience an
adverse action based on a physical or mental impairment (whether it is real
or it is simply perceived by the employer), regardless of whether that
impairment actually substantially limits a major life activity. To get that
substantial improvement, the disability negotiators had to relinquish the
argument that had worked in a a small amount of federal appellate courts
that people who come into the protection of the ADA solely under the
“regarded as” prong are still entitled to a reasonable accommodation. Under
the deal language, in order to get an accommodation, you must establish
protection under the first prong of the definition and be actually
materially restricted in a major life activity.

*Q:  How does this differ from H.R. 3195 as introduced last July?
*A:* H.R. 3195, as introduced last July, would have extended civil rights to
any individual with a “physical or mental impairment,” without
qualification. The new language continues to rely on the original ADA’s
phrasing  – “”substantially limited in a major life activity” – while
defining it differently and adding explicit direction that courts are to
interpret the legislation broadly for robust protections.

*Q:  Why did we negotiate?
A: With over 200 co-sponsors on the original bill, many have wondered why we
negotiated at all. The original ADA enjoyed broad bipartisan support. This
support was garnered through the protracted negotiations and compromises
between the business and disability communities. It was at the request of
key leadership and disability champions in the House who understood how
vital the employers’ role was in the passage of this legislation that the
disability and employer communities sat down in good faith to talk about the
bill language and come up with a compromise that would overturn the
problematic Supreme Court decisions and thus restore Congress’s intent in
passing the original ADA.

*Q:  Who was at the table?
*A:* From the disability community, the groups represented at the
negotiating table were the Epilepsy Foundation, the National Council on
Independent Living (NCIL), National Disability Rights Network (NDRN),
Bazelon Center for Mental Health Law, and the American Association of People
with Disabilities (AAPD). The Disability Rights Education and Defense Fund
(DREDF) was invited to participate but elected not to join the negotiation
process. DREDF and many other groups provided key advice to the negotiators
throughout the process. The groups representing the employers in the
negotiations were the U.S. Chamber of Commerce, the Society for Human
Resource Management (SHRM), the HR Policy Association, and the National
Association of Manufacturers.

*Q:  Who was involved in the vetting process for what became the ADAAA?
*A:* The negotiated language was widely vetted on both the disability and
employer sides. In fact, AAPD sent the proposed deal language to thousands
of grassroots disability advocates on its Justice For All email listerv,
asking for feedback before AAPD signed off on the deal. AAPD received well
over a hundred email responses back, some with questions, which were
answered, a few with concerns, which were discussed, but overwhelmingly,
from those indicating their strong support of the negotiated language.

The National Council on Independent Living (NCIL) followed a similar process
with their own grassroots communications. Leaders from all groups comprising
the Consortium for Citizens with Disabilities (CCD) were also involved in
the vetting process, suggesting tweaks and revisions that were often
incorporated into final bill language.

*Q:  Who supports this?
*A:* ADAAA enjoys extremely broad support from disability, civil rights,
faith-based, veterans, and employer groups. AAPD has been collecting the
names of supporting organizations for several weeks now, and at last count,
there were 183 national and 157 state, local, and other groups indicating
their support.

*Q:  We got it passed in the House, now what in the Senate?
*A:* With the solid victory in the House (402 to 17), we are working to
build the same kind of overwhelming bipartisan support in the Senate that
the bill enjoyed in the House and that the original ADA also had in both
houses. We anticipate Senate action on the bill in September when the Senate
returns from their August recess.

*Q:  Does the President support this?
*A:* President Bush supports and understands the need to overturn the
problematic Supreme Court decisions and seems ready to sign the bill. He did
express some “concerns” and some ideas for how to improve the language the
day before the House vote, and those concerns are being considered during
the Senate process.

*Q:  What happens if we don’t get it done this year?
*A:* We try, try again. The good news is that through the tireless efforts
of grassroots advocates across the country, Members of Congress and their
staff are far more educated on the need for restoration than ever before, so
we’ll be starting from a stronger place in terms of education and awareness.

If the bill isn’t passed in this Congress, we come back in the next Congress
and try hard to get it passed as quickly as possible. Before beginning that
effort, we will likely reevaluate the bill language to determine if there
are things that we want to change in light of a potentially different
political environment, although no major changes to the bill are expected in
the next Congress.
MODERATOR, Anne Sommers, JUSTICE FOR ALL — A Service of the American
Association of People with Disabilities (AAPD).

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