ADA Restoration

							    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.