Hello by decree


									Hi, it's Larry welcoming you 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
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 of

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 somehow is able to prove that the person doesn't have a disability, or
isn't disable enough under the ADA to be covered by the law.

As you 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 Wal-Mart 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 Perselay, who is with
Senator Tom Harkin's office, and we'll talk a little bit about the ADA Restoration Act,
DN 41 - September 9, 2007

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 e-mail to contact@disabilitynation.net, or to
leave voice mail and/or listen to past episodes of Disability Nation, be sure to call (480)

Larry Wanger:         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

                      If you've been following this issue, you know that a number of
                      groups, especially the United States Chamber of Commerce, 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 U.S. Chamber of Commerce on several occasions in
                      the last couple 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 Pensions committee.

                      Lee, welcome to the show, and why don't you take just a second to
                      tell our listeners what you do exactly and what your position is with
                      Senator Harkin's office?

Lee Perselay:         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. That includes working on a variety of
                      initiatives, drafting legislation, working with disability advocates,

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                      and promoting four goals of the ADA, in terms of how we view most
                      legislation, particularly with respect to people with disabilities.

Larry Wanger:         Well, as we get into this discussion about the ADA Restoration Act,
                      one of the things that 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 a little bit about what
                      Congress' intent was? Who was meant to be covered by the ADA?

Lee Perselay:         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,
                      "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 would
                      substantially limit a major life activity are covered under the
                      definition of disability, even if the effects of impairment are
                      controlled by medication." So I think that's clearly what Congress
                      has intended when the law was originally passed.

                      However, in a series of cases, the Supreme Court ignored this
                      congressional intent. For example, they've interpreted 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 under the ADA. And if they're no

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                      longer covered under the ADA, then their request for reasonable
                      accommodation at work can be denied.

                      On the other hand, if they stop taking their medication, then 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 Wanger:         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've stated in their letter that this is a wholesale
                      change in 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 Perselay:         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 to fit
                      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 about 37 percent,
                      which means more than 60 percent of people with disabilities are
                      not employed; and many of these individuals want an opportunity
                      to work and to have a job that's commensurate with their skills and
                      interests just like everyone else.

                      For those small percentages 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, no 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
                      disability; you also have to prove the discrimination.

                      The problem right now is that people that Congress clearly intended
                      to cover; again, those with epilepsy, diabetes, and cancer, are
                      spending a lot of time trying to prove that they fit within this sort of

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                      aberrant court-created definition of disability, and often, they never
                      get to be able to show the discrimination; and it creates an
                      untenable situation.

                      For example, in May, the Eleventh 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 they said that
                      was the case because he wasn't able to prove to the court's
                      satisfaction 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 Wanger:         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, and
                      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 relating to the
                      passage of this legislation?

Lee Perselay:         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 people who
                      have visual impairments, those who are deaf, and those who use
                      wheelchair or other mobility devices. I don't think that ADA
                      Restoration is going to have any significant impact on that. The
                      current requirement to remove architectural and communications
                      barriers is pretty broad right now, and I anticipate it would easily
                      encompass those who would now be assured of coverage under
                      ADA Restoration. So I don't really see much of an impact at all.

Larry Wanger:         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's it at? Hopefully it's moving
                      forward, and where we're going with this and what happens next.

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Lee Perselay:         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 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/Labor,
                      Transportation/Infrastructure, 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. If it passes in both, then it goes to the
                      President for his signature. Usually, this process, as you know, takes
                      some time to complete.

Larry Wanger:         So I know there's been a lot of positive response and support for
                      this legislation, both by Republicans and Democrats, and that we
                      have a number of sponsors on the House side right now, but what
                      can people do who might be listening to the show who want to help
                      to support this legislation and move it forward?

Lee Perselay:         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 co-
                      sponsor the bill, either S. 1881 in the Senate or H.R. 3195 in the

                      17 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, and 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 Wanger:         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 Perselay:         Sure. It's my pleasure, Larry. Thank you.

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Larry Wanger:         I've listed a number of resources and informational items on the
                      Disability Nation website so that 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.

And now, here's the latest news from the disability community with the editor of
Inclusion Daily Express, Dave Reynolds.

Hello, I'm Dave Reynolds, editor of Inclusion Daily Express, the international disability
rights news services. Here's a look at some of the things that happened in disability
rights and advocacy during the week that ended September 7th.

After a three-week trial, a St. Francisville, Louisiana jury took just four hours'
deliberation to acquit the owners of St. Rita's Nursing Home of negligent homicide and
cruelty charges related to the deaths of 35 residents who perished in the days after
Hurricane Katrina. Sal and Mabel Mangano had been accused of failing to evacuate the
facility as the hurricane approached in late August 2005. Several residents drowned
while in their wheelchairs or beds after St. Bernard Parish was flooded. The Manganos
were the only facility owners charged with crimes after the residents died, even though
residents of other nursing facilities also died. In fact, the operators of one nursing home
where 22 residents drowned following the storm have yet to face charges. Some jurors
told reporters after the verdict that this fact alone persuaded them to acquit the couple.
Jurors also said they believed there were many people to blame for the deaths, including
federal, state, and local officials who had failed to order an evacuation.

A three-member panel of the Ninth U.S. Circuit Court of Appeals in San Francisco has
upheld a lower court's ruling that ordered Jarek Molski to stop filing lawsuits against
California businesses under the Americans with Disabilities Act without first seeking
permission from a court. Molski, who uses a wheelchair and has dubbed himself "The
Sheriff," has filed more than 400 lawsuits over accessibility problems in restaurants,
wineries, and other businesses prior to December 2004. The law school graduate claims
he is a public servant who is simply trying to make businesses comply with the anti-
discrimination law. The trial judge has called Molski "a vexatious litigant who files
discrimination lawsuits maliciously and without good cause," and added that his tactics
amounted to systematic extortion. Molski's tactics have been controversial, even within
the disability rights community. While some have applauded his efforts to make
businesses follow the ADA, others have said his methods have backfired, creating public
sympathy for the businesses.

Tabloids reported this week that Heather Mills McCartney was recently fined $250 for
parking a rented Bentley in a New York City parking zone reserved for motorists with
disabilities. The estranged wife of former Beatle Sir Paul McCartney reportedly
explained to the traffic cop that she has a physical disability. Onlookers said she even

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went so far as to show her prosthetic left leg and thump on it. Still, the officer went
ahead and wrote the ticket anyway, notice that regardless of who she is, McCartney
failed to display the necessary parking tag. McCartney was apparently photographed
sticking out her tongue at the officer as he walked away. Before her appearance on
Dancing With The Stars this spring, some disability groups in the United Kingdom
called for her blue parking badge to be revoked, saying her performance would show the
world that she is able-bodied.

Disability rights groups in Canada were applauding the swearing in of David Onley as
Ontario's 28th lieutenant governor this week. A prominent newscaster for more than 20
years, Onley has long been a supporter of right for people with disabilities. The 57-year-
old contracted polio when he was three years of age, and had lived with post-polio
syndrome since then. Instead of hiding his disability, he has insisted on reporting and
anchoring from his motorized scooter. As Queen's Representative in the province, Onley
promised Wednesday to focus on accessibility so all Ontarians can achieve their full
potential. Before delivering his speech in the legislative chamber, however, Onley had to
ride his motorized scooter to a side door in the building because the front entrance is
not accessible.

This is Inclusion Daily Express editor Dave Reynolds.

When I was researching and gathering information for the show, I ran across a new
podcast called Day in Washington, which is produced by Day Al-Mohammed. Day
works as a senior government affairs officer in the Washington, D.C. area, and therefore
is quite connected and knows a lot about the issues going on on Capitol Hill, in
Congress, and at the White House.

In a recent episode that was actually recorded just a few days before the legislation was
introduced into Congress, Day talked about this issue why ADA restoration is important,
but also some of the issues that need to be considered as this bill moves forward in
Congress. I appreciate Day's willingness to allow me to share this presentation with you,
and I hope you'll check out her podcast. If you go to the Disability Nation website, I've
provided a link so that you can visit her website and check out her show.

DAY AL-MOHAMMED: The ADA has long been considered the "Civil Rights Act" for
people with disabilities, with its promise to end exclusion and inequality for the 20
percent of American citizens who live every day with physical or mental impairments.

As a result of a string of Supreme Court decisions and other cases, it has become
difficult for individuals with certain health conditions to establish that they have a
disability for purposes of the ADA. People with epilepsy, diabetes, HIV, cancer,
psychiatric diagnoses, and other conditions who manage their disabilities with
medication, prosthetics, hearing aids, or other disease management strategies, are

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routinely dismissed as "not disabled enough" to be covered by the ADA. The emphasis is
placed on the qualification, rather than on the discriminatory action.

In response, a significant portion of the disability community has been proposing to
amend the ADA to bring it back to its initial intent and provide a clear and
comprehensive national mandate, with strong, consistent, enforceable standards for
eliminating disability-based discrimination.

Let me just give you three examples of what has happened through the court systems. A
pharmacist with diabetes was fired for taking a break to eat. He was not protected by the
ADA. Wal-Mart fired Stephen Orr after refusing to allow him to take a lunch break so
that he could regulate his blood sugar and control his diabetes by eating. Because he
managed his diabetes through medication and by following a dietary regimen that
required him to eat at specific times, the court ruled that Mr. Orr was not substantially
limited in any major life activity and, therefore, was not protected from discrimination
under the ADA. Because he was not protected by the ADA, the court never considered
whether allowing a lunch break so that Mr. Orr could control his diabetes was a
reasonable accommodation. So basically, Mr. Orr was punished for trying to take care of
himself. That isn’t what Congress intended with the ADA.

If that doesn't sound particularly egregious, let me give you a second example. There's
an auto packaging machine operator with epilepsy who resigned after her employer
required her to take a work shift that would have worsened her seizures. She was not
protected by the ADA. The court held that even though Vanessa Turpin suffered
nighttime seizures characterized by shaking, kicking, salivating and, on at least one
occasion, bedwetting and that caused her to wake up with bruises on her arms and legs,
Vanessa was not disabled because "many individuals fail to receive a full night sleep."
The court further held that Vanessa’s daytime seizures, which normally lasted a couple
of minutes and which caused her to become unaware of and unresponsive to her
surroundings and to suffer memory loss, did not render her disabled because "many
other adults in the general population suffer from a few incidents of forgetfulness a

Still not convinced? Let's try this last example. A truck driver with a hand injury was
told by his employer that "he was being fired because of his disability; he was crippled,
and the company was at fault for having hired a handicapped person." The Court said he
was not protected by the ADA. While serving in the Army, - that’s right, he’s a veteran -
Robert Tockes’s right hand was caught between two vehicles, permanently restricting
his use of that hand. The court basically ruled that the employer didn’t really regard Mr.
Tockes as disabled when it fired him for using only one hand. That's a heck of a thing to
say to the guys coming back from overseas missing an arm or a leg. "Well, you can still
get around or still do things with one arm, it just takes you longer." So you’re not
disabled; and if someone fires you because you’ve only got one arm or one leg, it isn’t
really discrimination.

So what's going on in Congress?

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Senator Sensenbrenner put forward H.R. 6258, the ADA Restoration Act of 2006, in the
109th Congress. Proposed late in the session, it was intended as a means to “test the
waters” before legislation was submitted this year. A Dear Colleague letter was
circulated on Friday, July 20 from Representatives Hoyer and Sensenbrenner to
announce their intention to introduce the ADA Restoration Act of 2007; and on
Thursday, July 26, on the 17th anniversary of the enactment of the Americans with
Disabilities Act, House Majority Leader Steny Hoyer and Congressman James
Sensenbrenner will introduce the legislation itself.

To date, a significant number of representatives have expressed interest and support of
this legislation. In addition, a large number of disability organizations are sending out
action alerts to their members about these upcoming activities.

So why do this now?

Over the years there has been significant concern about opening up the ADA for fear
that an unfriendly Congress would take away the rights available to people with
disabilities. However, those rights are already being chipped away by the courts. It was
Congress’ intent that the ADA cover people with epilepsy, with mental health conditions,
that mitigating measures, prosthetics would not be counted against the amputee. But
the narrowing of the definition of disability by the courts has taken that away. For those
of us who are visually impaired, it could even be said that the courts have limited the
ability of the ADA to apply to the Internet.

Why now? Why not now? If not now, when? I hear about how disability is not popular
and how Congress isn’t sympathetic to the ADA. I would posit that it is not going to
becomes more amenable to altering the legislation in our favor in the future. If you take
a real close look at Congress, about 60 percent of supporters of the original ADA are still
in Congress. Over time, that is going to change, and there are no guarantees that anyone
new coming in will be more supportive. These incumbents are the ones who went to bat
for the disability community the first time. The longer we wait, the fewer allies will

This isn’t an easy decision or a frivolous one. It is something the policy wonks of the
disability community have looked at and considered for years. There is a lot of open
discussion, and there has been a lot of discussion behind closed doors.

Obviously I feel strongly about this issue and just as obviously, I’m sure others might
feel differently. But I stand by my words. Too often the disability community negotiates
from a position of weakness. Too often we find ourselves begging for scraps. If we
cannot view ourselves as someone worthy, as individuals - no, a community, with the
right to this, then how can we expect others to view us with respect…to view us as a
serious and significant constituency.

To quote Theodore Roosevelt: "Far better it is to dare mighty things, to win glorious
triumphs even though checkered by failure, than to rank with those poor spirits who

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neither enjoy nor suffer much because they live in the grey twilight that knows neither
victory nor defeat."

 To contact Disability Nation in the United States, you can phone 480.302.9300, send
          an e-mail to contact@disabilitynation.net, or visit our website at

  Disability Nation is produced by Larry Wanger and is licensed under a Creative
Commons attribution license. Distribution of Disability Nation is not permitted without

   Thanks for listening and be sure to tune into the next episode of Disability Nation!

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