Mending the ADA
Bill to be re-introduced to restore court-weakened rights for persons
with disabilities
by Kathleen Hagen
In the years since the 1990
passage of the ADA, disability advocates have been concerned with
what is perceived as a steady erosion of these rights by the Supreme
Court. To repair the damage, federal lawmakers plan to introduce
a bill later this session that adds language to the ADA both defining
disability unambiguously and ensuring that the courts enforce the
ADA as it was originally intended by Congress.
Last year, a similar bill had bipartisan support but was introduced
too late in the session to make it to the floor of the House of Representatives;
there was no companion bill in the 2006 Senate.
Momentum for a restoration bill began building in 1999, when in
the course of one day, the Supreme Court decided three cases that
each undermined disability rights. The main arguments in these cases
were cited in the principal case, Sutton vs. United Airlines. The
court held that if a person with a disability could remedy the effects
of that disability by, for example, wearing glasses to correct vision,
or taking medicine to control seizures, that the person could not
be defined as disabled. A person could be defined as disabled, the
court said, only if corrective measures did not eliminate the disability.
In the Sutton case, for example, two sisters applied to be pilots
for United Airlines. They were already certified pilots. Without
their glasses, their sight did not meet the vision qualifications
set out by United Airlines. When they wore glasses, however, they
met the qualification. United Airlines used a standard that persons
must meet the required visual acuity without glasses. The Supreme
Court argued that since the sisters did not have a visual acuity
problem if they wore glasses, they did not have a disability. In
other words, their potential impairment was corrected through the
use of glasses.
Advocates and attorneys have scrambled ever since that ruling to
find ways to pass the initial hurdle—defining a disability.
Holdings by the Supreme Court in employment discrimination cases
continue that conservative approach to defining disability. Speaking
earlier this week at the New York Law School,ongressman F. James
Sensenbrenner, Jr., (R-Wisconsin) said, “…I believe
the ADA has not reached its full potential because some Supreme Court
decisions have gotten it wrong. Significant limitations imposed by
the federal courts on the ADA’s protections, particularly in
the employment context, have negatively impacted disabled Americans.”
Rep. Sensenbrenner, one of the co-sponsors of the original ADA legislation
in 1990, has personal reasons for understanding the necessity of
providing civil rights to persons with disabilities. His wife was
in a serious accident in her 20s and has very limited mobility and
uses a wheelchair. She serves on the board of the American Association
of Persons with Disabilities (AAPD).
The language of the Restoration Act of 2006 was crafted to address
the problem in three ways. First, it would add language to make it
clear that Congress intended the definition of disability cited by
the ADA to include, in the definition, persons who had taken corrective
measures but who would continue to be disabled without those measures.
Second, the bill would introduce language specifically defining disability
into the ADA, language which was previously available only in the
regulations promulgated by EEOC. Third, the bill is preceded by “findings” that
explain why this bill is necessary.
In view of the election
results in November 2006 and the changes in composition of both
houses, there is currently more optimism that such a restoration
bill could pass, so the bill will be re-introduced
this year by House Majority Leader Steny Hoyer, and cosponsored by
Representative Sensenbrenner.
This is not the first
time it has been necessary to pass restorative language to protect
civil rights. In 1991, Congress passed the Civil Rights Restoration
Act to restore protections to persons asserting employment discrimination
because of race or sex. Advocates hope that the current legislation
aimed at providing protections is as successful as the 1991 language. ![]()
Kathleen Hagen is a staff attorney for the Minnesota Disability
Law Center.
