ADA Restoration What Went Wrong, Why, and How You Can Help Fix It Epilepsy Foundation, Public Policy Institute Georgetown University Law Center, Washington, DC ADA Basics • Passed in 1990 with overwhelming support from both parties, in both Houses; • Signed into law by George H.W. Bush: “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.” So what does the ADA do? • Prohibits employment discrimination based on disability (Title I) Requires employers to provide reasonable accommodations that will allow an individual with a disability to do the job AND • Prohibits discrimination in public services and programs (Title II) Requires improvements in services like public transportation AND • Ensures access to public accommodations like restaurants, hotels, movie theatres, stores, and offices (Title III) 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. Say what? Huh? Wonder what that really means? Am I protected from discrimination? Congress intended to protect people with a wide range of impairments The Committee reports to the ADA described how the law would protect people with a range of physical and mental impairments -- including conditions such as epilepsy, diabetes, cancer, AIDS and HIV infection, heart conditions, and various mental illnesses. So what went wrong? In 1999, the US Supreme 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. Say again? If medication helps control your seizures, your employer or a court may now decide that your impairment (epilepsy or diabetes or hearing loss) is not substantial enough and therefore you are not protected from discrimination by the ADA. 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. 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.” 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. 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, and unable to talk during his seizures, amounted to “only” a “momentary physical limitation” “which could not be classified as substantial.” 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.” Charles Littleton Wasn‟t Protected Either • Mr. Littleton is a 29 year-old man with significant intellectual disabilities (what the courts termed “mental retardation”): – his cognitive functioning is comparable to that of an 8-year-old child – he graduated from high school with a certificate in special education, lives at home with his mother, and receives vocational assistance from several state agencies that provide services to people with disabilities. Mr. Littleton‟s Story • Mr. Littleton‟s job counselor helped him get an interview with Wal-Mart for a cart-pusher position. But when he got to the interview, his job counselor wasn‟t allowed in as previously agreed upon. Without the assistance of his job counselor, the interview did not go well and Mr. Littleton did not get the job. The court found that Mr. Littleton wasn‟t “disabled” enough to be protected by the ADA • When Mr. Littleton sued Wal-Mart, the court never addressed whether Mr. Littleton‟s job counselor should have been allowed in the interview. • Instead, the court said that Mr. Littleton‟s “mental retardation” did not qualify him for protection under the ADA. – The court ruled that although Mr. Littleton was “somewhat limited in his ability to learn because of his mental retardation,” he was not substantially limited because he knew how to read. – The court also stated that it was “unclear whether thinking, communicating and social interaction are „major life activities‟ under the ADA” – but even assuming that they were, the court found that Mr. Littleton was not substantially limited in these activities because he could drive a car and could communicate using words. 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.
Pages to are hidden for
"ADA Restoration"Please download to view full document