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Janet Fiore is the CEO of The Sierra Group and an active participant in the legislative impact of enhance policy focusing on disability and employment. You may have a different opinion as to the impact of the ADA Restoration Act – if so, let us know. Send us your feedback.

The ADA Amendments Act becomes Law

NOTE: The following summary is based on my interpretation of the language of the new law when compared to the prior language on the subject. This is not intended to be used as a legal conclusion.

In 1992 Americans with Disabilities Act (ADA) was signed into law by President George H.W. Bush. As a civil rights law, the ADA was designed to protect any individual who is treated less favorably because of a current, past, or perceived disability.

Since the ADA was passed, a series of court decisions have ignored Congress’s clear intent regarding who should be protected under the law, and have narrowed the category of who qualifies as an "individual with a disability"…by raising the threshold for an impairment to qualify as having a disability.

Instead of following Congress’s clear intention that the definition of “disability” in the ADA be interpreted broadly, the Supreme Court decided to ignore Congressional intent and directed that the definition of disability needed to be interpreted narrowly. As a result, there have been hundreds of court cases with bizarre and devastating outcomes with the courts siding more than 90% of the time with the employer rather than individuals who faced discrimination (mostly on the grounds that they do not meet the definition of “disability.”)

“Many individuals who Congress intended to protect under the ADA – including people with epilepsy, diabetes, and cancer – are no longer protected as a result of these court decisions,” said Senator Tom Harkin (D-IA) who introduced the original bill. “These cases have created a bizarre catch-22 where people with serious conditions like epilepsy or diabetes could be forced to choose between treating their conditions and forfeiting their protections under the ADA, or not treating their conditions and being protected.”

This Act will restore the original intent of the ADA to protect all persons with disabilities without regard to mitigating circumstances, such as taking medication, or using an assistive device.

Senator Orrin Hatch is quoted as saying: "The Supreme Court did what it thought was right, but it was wrong. And we had to correct it."

This bill was co-sponsored by Senator Tom Harkin (D-IA) and Senator Arlen Specter (R-PA). House Majority Leader Steny Hoyer (D-MD) and Representative Jim Sensenbrenner (R-WI) introduced a companion bill in the House of Representations that passed by a 402-17 margin this summer..

President George Bush signed this Act into law on Thursday, September 25, 2008.

Positive Restoration Provisions

(1) The legislation amends the definition of “disability” so that individuals with disabilities who Congress originally intended to protect from discrimination are covered under the ADA.

(A) The bill leaves the ADA's familiar disability definition intact, but takes several specific steps to direct courts toward a more generous meaning and application of the definition.

(B) The bill redefines and clarifies the terms used in the definition of disability (such as “physical impairment” and “mental impairment”). It makes it easier for people with disabilities to be covered by the ADA because it effectively expands the definition of disability to include many more major life activities, as well as a new category of major bodily functions.

(C) It updates the definition of a major life activity to include conditions that limit bodily function such as that of the immune system, circulatory system or the brain.

The non-exhaustive list includes but is not limited to: “caring for oneself, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” The language also includes a list of “major bodily functions” as part of the definition of “major life activities.”

(D) It modifies findings in the ADA that had been misconstrued by the courts to support a narrow reading of “disability.”

It makes clear that for someone whose disability is episodic (such as with epilepsy) or in remission (such as with cancer), for purposes of establishing their eligibility for the ADA’s protections, they are to be considered when their disabilities are active. This means they will not be shut out of protections if they are discriminated against because of their disabilities simply because they are not currently experiencing the symptoms associated with their disabilities in their active state.

(2) This legislation adds a rule of construction to ensure that a person who uses mitigating measures (such as those with epilepsy or diabetes) will be protected under the law.

(A) Defines the term “mitigating measures,” which is not currently defined in the ADA or in the Equal Employment Opportunity Commission (EEOC) regulations.

(B) Clarifies that adverse treatment based on the mitigating measure itself or a side effect of the mitigating measure (e.g., a person's prosthetic limb or a person's fatigue due to medicine) may constitute discrimination.

(C) Extends protections to individuals who use hearing aids, prosthetic limbs, auxiliary aids or take medication, etc. to treat disabilities. It would classify any condition that limits a major life activity as a disability regardless of whether or not it was treatable with medication or technology. (Some courts previously determined that these medical aids nullified ADA eligibility because the person no longer met the three disability definition criteria.)

(3) This legislation authorizes the appropriate executive agencies to issue regulations and guidance implementing the revised definition, i.e., Attorney General’s Office, EEOC, Department of Transportation.

(4) It harmonizes the ADA with other civil rights laws by prohibiting discrimination “on the basis of disability.” (The only one cited is the Rehabilitation Act of 1973, as amended)

(5) It adds a rule of construction directing courts to construe the provisions of the ADA broadly, in order to advance the statute's remedial purpose. Example: Includes a broad “regarded as” prong that will provide civil rights protection to anyone who is adversely treated based on a physical or mental impairment.

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