What Went Wrong, Why, and How
You Can Help Fix It
Epilepsy Foundation, Public Policy Institute
Georgetown University Law Center, Washington, DC
• 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
• Prohibits discrimination in public services
and programs (Title II)
Requires improvements in services like public
• 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
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
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
limits a major life activity.
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
That‟s exactly what happened to
• 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
• 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
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”
“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
• 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
• 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
based on disability.
• This action is needed to
ensure that the
fundamental promise of
the ADA – equality of
opportunity for all
Americans – is fulfilled.