Day in Washington #5 – ADA Restoration Act
‘Day in Washington’ is where I hope to explore and discuss various aspects of disability policy. Each episode will cover a specific issue within disability, and/or a disability-related news article. These short summaries offer an easy to understand introduction to disability policy and resources for those interested in further study. You can find the text of the podcast in the comments of this post.
Audio File: Day in Washington #5 – ADA Restoration
SHOW NOTES
- Introduction, Date of Podcast
- ADA Restoration Act
- Closing and Contact information
- Disclaimer
Other Resources
American Association of People with Disabilities ADA Restoration Blog
Consortium for Citizens with Disabilities ADA Restoration Page
American Council of the Blind July 26, 2007 Legislative Update on ADA Restoration
The music on this podcast, Sedona, was provided by 2012 ( http://www.twentytwelverecords.com) and is available at http://www.podsafemusicnetwork.com.
Day in Washington – Podcast #5 (July 24, 2007)
INTRODUCTION
Welcome to a Day in Washington. Day in Washington is your disability policy podcast covering legislative issues of interest to the disability community. We also spotlight specific bills and disability related news articles. I’m your host, Day Al-Mohamed working to make sure you stay informed. This is Podcast #5 for July 24th, 2007.
ISSUE
The issue I’d like to discuss today is one that is very timely with regard to upcoming events on the Hill. My subject? The Americans with Disabilities Act or ADA. The ADA has long been considered the “Civil Rights Act” for people with disabilities, with its promise to end exclusion and inequality for the 20% of American citizens who live every day with physical or mental impairments. As a result of a string of Supreme Court decisions and other cases, it has become difficult for individuals with certain health conditions to establish that they have a disability for purposes of the ADA. People with epilepsy, diabetes, HIV, cancer, psychiatric diagnoses, and other conditions who manage their disabilities with medication, prosthetics, hearing aids, or other disease management strategies are routinely dismissed as “not disabled enough” to be covered by the ADA. The emphasis is placed on the qualification rather than on the discriminatory action.
In response, a significant portion of the disability community has been proposing to amend the ADA to bring it back to its initial intent and “provide a clear and comprehensive national mandate,” with “strong, consistent, enforceable standards,” for eliminating disability-based discrimination.
Just let me give you three examples:
• A pharmacist with diabetes who was fired for taking a break to eat was not protected by the ADA. Wal-Mart fired Stephen Orr after refusing to allow him to take a lunch break so that he could regulate his blood sugar and control his diabetes by eating. Because he managed his diabetes through medication and by following a dietary regimen that required him to eat at specific times, the court ruled that Mr. Orr was not substantially limited in any major life activity and, therefore, was not protected from discrimination under the ADA. Because he was not protected by the ADA, the court never considered whether allowing a lunch break so that Mr. Orr could control his diabetes was a “reasonable accommodation.” So basically, Mr. Orr was PUNISHED for trying to take care of himself. That isn’t what Congress intended.
• An auto packaging machine operator with epilepsy who resigned after her employer required her to take a work-shift that would have worsened her seizures was not protected by the ADA. The court held that even though Vanessa Turpin suffered nighttime seizures characterized by “shaking, kicking, salivating and, on at least one occasion, bedwetting” and that caused her to “wake up with bruises on her arms and legs,” Vanessa was not “disabled” because “[m]any individuals fail to receive a full night sleep.” The court further held that Vanessa’s daytime seizures, which “normally lasted a couple of minutes” and which caused her to “bec[o]me unaware of and unresponsive to her surroundings” and “to suffer memory loss,” did not render her “disabled” because “many other adults in the general population suffer from a few incidents of forgetfulness a week.”
• A truck driver with a hand injury, who was told by his employer that “he was being fired because of his disability, he was crippled, and the company was at fault for having hired a handicapped person,” was not protected by the ADA. While serving in the Army, – that’s right, he’s a veteran – Robert Tockes’s right hand was caught between two vehicles, permanently restricting his use of that hand. The court basically ruled employer didn’t really regard Mr. Tockes as disabled when it fired him for using only one hand. While, “[o]bviously [the employer] knew [Mr. Tockes] had a disability,” that “does not mean that it thought him so far disabled as to fall within the restrictive meaning that the ADA assigns to the term.” That’s a heck of a thing to say to the guys coming back from overseas missing an arm or a leg. “Well, you can still get around or still do things with one arm, it just takes you longer – so you’re not disabled and if someone fires you because you’ve only got one arm or one leg it isn’t really discrimination.
So what’s going on in Congress
Senator Sensenbrenner put forward H.R. 6258, the ADA Restoration Act of 2006, in the 109th Congress. Proposed late in the session, it was intended as a means to “test the waters” before legislation was submitted this year. A Dear Colleague letter was circulated on Friday, July 20 from Representatives Hoyer and Sensenbrenner to announce their intention to introduce the ADA Restoration Act of 2007 and on Thursday, July 26, on the 17th anniversary of the enactment of the Americans with Disabilities Act, House Majority Leader Steny Hoyer (D-MD) and Congressman James Sensenbrenner (R-WI) will introduce the legislation itself. To date, a significant number of Representatives have expressed interest and support of this legislation including: Conyers, Holden, McNulty, Castle, Butterfield, Cardoza, Costa, Drier, Emerson, Nunes, Permutter, Waxman and of course Hoyer and Sensenbrenner. In addition, a large number of disability organizations are sending out Action Alerts to their members about these upcoming activities.
Why do this now?
Over the years there has been significant concern about “opening up the ADA” for fear that an unfriendly Congress would take away the rights available to people with disabilities. However, those rights are already being chipped away by the Courts. It was Congress’ intent that the ADA cover people with epilepsy, with mental health conditions, that mitigating measures – prosthetics would not be counted against the amputee. But the narrowing of the definition of disability by the courts has taken that away. For those of us who are visually impaired, it could even be said that the courts have limited the ability of the ADA to apply to the Internet.
Why now? Why not now? If not now, when? I hear about how disability is not popular and how Congress isn’t sympathetic to the ADA. I would posit that it is not going to becomes MORE amenable to altering the legislation in our favor in the future. Why? I’ll tell you why. If you take a real close look at congress, about 60% of supporters of the original ADA are still in Congress. Over time, that is going to change and there are no guarantees that anyone new coming in will be more supportive. These encumbents are the ones who went to bat for the disability community the first time – the longer we wait, the fewer allies will remain.
This isn’t an easy decision or a frivolous one. It is something the policy wonks of the disability community have looked at and considered for years. There is a lot of open discussion, and there has been a lot of discussion behind closed doors.
Obviously I feel strongly about this issue and just as obviously, I’m sure others might feel differently. But I stand by my words. Too often the disability community negotiates from a position of weakness. Too often we find ourselves begging for scraps. If we cannot view ourselves as someone worthy, as individuals…no a community, with the RIGHT to this, then how can we expect others to view us with respect…to view us as a serious and significant constituency.
To quote Theodore Roosevelt – “Far better it is to dare mighty things, to win glorious triumphs even though chequered by failure, than to rank with those poor spirits who neither enjoy nor suffer much because they live in the grey twilight that knows neither victory nor defeat.”
CLOSING
And that is it for this week’s edition of Day in Washington. Please feel free to contact me at http://www.dayalmohamed.com regarding comments or suggestions. I’d love to hear from you, but for now, this is your host, Day reminding you to stay well and stay informed.
EPILOGUE
Music for this podcast was provided by the podsafe music network @ podsafemusicnetwork.com. The music was composed and performed by 2012 and can be found at http://www.twentytwelverecords.com. Any opinions and perspectives expressed in this podcast should not be taken as the official stance of any group or organization affiliated with the host. In addition, none of the facts, data, or grammar have been checked for accuracy.
Thank you for listening.
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