Will the Americans with Disabilities Act Be Amended?
For over 15 years, the Americans with Disabilities Act has been the subject of lots of hand-wringing inside human resources departments across the country. Phrases such as "reasonable accommodation" and "undue hardship" took on new meanings. And of course, the Act spawned lots of litigation to determine the parameters of the act.
Now, a Senate Committee is looking into making tweaks to the ADA or, depending on your views, wholesale changes through a new bill making the rounds. The bill, entitled in Orwellian doublespeak as "Americans with Disabilities Act Restoration Act of 2007", would amend the Americans with Disabilities Act of 1990 to add definitions and rules of construction permitting greater opportunities for recovery than exist under current judicial interpretations allow. The Committee heard testimony last week from several individuals.
The Workplace Horizons blog has a good summary of the exact changes and has been tracking this bill as it makes its way through Congress.
The Bill was introduced over the summer by Senator Tom Harkin who, in his internet saavy skills, posted this video to YouTube describing the bill.
Among those who testified was Dick Thornburgh, currently counsel to the national law firm of Kirkpatrick & Lockhart Preston Gates Ellis LLP, resident in their Washington, D.C. office. He is the former Attorney General of the United States and the former governor of Pennsylvania. He actually spoke on the subject many months ago at a visit to a university -- which posted excerpts from his speech there.
So, where does this bill go from here? On a bus tour, naturally. Indeed, the bus visited Connecticut several weeks ago in an event attended by leaders of both political parties. But the bill still has a ways to go.
There are many blogs and posts tracking or commenting on this bill, including the American Association of People with Disabilities and Reunify Gally.
For employers, we often track court cases without realizing that legislation can have just as dramatic an impact. Will this bill a "hot topic" next year? It hasn't taken off yet, but with the election cycle in full swing, it remains to be seen whether this bill will catch on.
(Note: Links have been updated per comments.)
It is not the authors of the ADA Restoration Act who are indulging in "Orwellian doublespeak" but employers who try to claim to certain employees that they are "too disabled to work" (even if they have, in fact, already been doing the job quite well, perhaps with some simple accommodations) while SIMULTANEOUSLY arguing to the courts that the employee is "not disabled enough" to deserve protection. In other words, they are trying to have it both ways. And the courts have so badly misinterpreted the original spirit and intent behind the ADA that they have allowed employers to get away with it. This is precisely the state of affairs that the ADA Restoration Act is meant to fix.
Regarding your link to ReunifyGally--thank you. However, I would encourage you to redirect that link to http://reunifygally.wordpress.com/on-the-ada-restoration-act-of-2007/. I am continuing to update the list of blog links at this location, but not at the location where you link to above.
People who visit my blog can also click on "ADA Court Cases" under "Categories" (right hand navigation bar) to read about several specific examples of this kind of doublespeak from employees and courts. The Orr case is the most famous one, but there are several others as well. And I plan to put up a few more.
Thank you.
Andrea Shettle, MSW
http://reunifygally.wordpress.com
http://wecando.wordpress.com
Thank you for your comment. I appreciate your insight. My comment was actually just a comment about how bills like this are named as a whole. Most bills have great names "No Child Left Behind" but there's always more to it and they do not provide details as to what the bill actually does. Why not simply "2007 Amendments to the ADA" Bill? Recall that the Civil Rights Act of 1991 had a simple name. By naming it the "ADA Restoration Act", it takes away from the more important debate about whether these amendments are a good idea -- and instead focuses an argument on whether the ADA contained these items in the first place.
Whether the courts are following the spirit of the ADA remains a topic of debate that I believe reasonable people can disagree on. Certainly, we've made much more progress in this area and I, for one, think the ADA has been a very good law at protecting disabled workers and providing guidance to workplaces. More changes can always be made, certainly as nuances get flushed out. Because the bill is likely to continue to be debated and modified and changed before passage, it'll be interesting to see where it ends up.
The link has also been updated.