Day in Washington Podcast #11 – ADA Restoration Act Hearing
Day in Washington- The Disability Policy Podcast explores and discusses various aspects of disability policy. Each episode will cover a specific issue within disability, and/or a disability-related news article. These 8-10 minute podcasts offer an easy to understand introduction to disability policy and resources for those interested in further study. You can find the text of each podcast in the comments. If you have difficulty downloading the podcast, please right-click and save it to your computer for playback.
Episode Summary:
This week’s podcast covers the House Judciary Committee’s hearing on ADA Restoration. Within this podcast are snippets of audio from the hearing. This episode was scheduled for October 8, 2007. My apologies for the late posting but I wanted to post this episode with an accurate transcript.
Audio File: Day in Washington Podcast #11 – House ADA Restoration Act Hearing
Show Notes
- Introduction, Date of Podcast
- ADA Restoration Hearing
- Testimony of Michael Collins
- Testimony of Cheryl Sensenbrenner
- Testimony of House Majority Leader Representative Steny Hoyer
- Testimony of Steven Orr
- Testimony of Chai Feldblum
- Closing and Contact information
- Disclaimer
Resources
Video Webcast of October 4, 2007 ADA Restoration Act Hearing (From the House Judiciary Committee Website)
The written testimony of the witnesses is also available on the site. Please note that the video is not captioned.
Day in Washington Podcast #5 – ADA Restoration
American Association of People with Disabilities ADA Restoration Blog
Consortium for Citizens with Disabilities ADA Restoration Page - Includes Written Testimony of Additional Supporters
American Council of the Blind July 26, 2007 Legislative Update on ADA Restoration
Day in Washington – Podcast #11 (October 08, 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 other related news articles. I’m your host, Day Al-Mohamed working to make sure you stay informed. This week, I’m recording from New York City, so if the audio sounds different, that is why. This is Podcast #11 and was scheduled for October 8, 2007.
This week’s podcast covers ADA Restoration. On October 4, the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties held a hearing on ADA Restoration (H.R. 3195 and S. 1881 in Senate).
Rather than summarize what was said myself I thought it might be meaningful to hear the testimony directly from the witnesses. Included are audio clips of public testimony from each of the witnesses.
I would like to start with the testimony of Michael Collins, the executive director for the National Council on Disability or NCD.
“Congress defined ‘disability’ in the ADA to encompass both actual and perceived and limitations…and limitations imposed by society. It was intended to provide comprehensive protections for anyone who had been excluded or disadvantaged by a covered entity on the basis of a physical or mental impairment, whether real or perceived.
The Supreme court has issued several decisions relating to the definition of ‘disability’ under the ADA, so altering it that the majority of people with disabilities would have no federal legal recourse in the event of discrimination, particularly in instances of employment discrimination.” – Michael Collins
Perhaps the most passionate speaker was Cheryl Sensenbrenner, wife of Representative Sensenbrenner.
“As a consequence of court-made law we have an absurd Catch-22. Now if you manage your disability well, if you do the best you can in spite of your disability…well then, your civil rights protections are taken away. The court has taken them away. But if you don’t manage your disability well, you have civil rights protections but you probably won’t be able to get a job. That’s absurd.
Than means because I worked hard in physical therapy and in many other medical things and because I wear a leg brace and walk with a cane, the courts would find me not disabled enough to have civil rights. But if I’d given up after my spinal cord injury, or if Tara, my sister with Down Syndrome, had bought in to the low expectation that society had too often given her…if neither of us had lived up to what each of our full potential was, then we would have been protected.” – Cheryl Sensenbrenner
Now let me backtrack a little bit as my audio clips are out of order. The first panelist at the hearing was the House of Representatives Majority Leader Representative Steny Hoyer. He was very quick to assure those in the room that this legislation was not an expansion of the ADA at all but a necessary clarification.
“The purpose of this legislation is straightforward and unambiguous. This bill does not seek to expand the rights guaranteed under the landmark Americans with Disabilities Act.
Mr. Franks has expressed that concern and that focus instead seeks to clarify the law restoring the scope of protection under the ADA responding to court decisions that have sharply restricted the class of people who can invoke protection under the law and reinstating the original Congressional intent when the ADA passed.” – Representative Steny Hoyer
In the first podcast about the ADA Restoration Act, I told the story of Stephen Orr the pharmacist who’s employer refused him the accommodation of a lunch break to manage his diabetes. You can find it at: dayinwashington.com/?p=34. Mr. Orr was present in person to speak of his personal experience.
“On May 12th, I was fired. Let me clear; when I was fired, I was told flat-out it was because I had diabetes. After this discrimination, I sued Walmart for violating my rights under the ADA. However, the U.S. district court ruled against me and the court of Appeals, rejected my appeal. Because of Supreme Court decisions narrowing the federal law I was not considered disabled under the Act for the sole reason that my diabetes was under such good control. Amazingly the court ignored the fact that when I was working at Walmart, was prevented from the chance to prove that with a small reasonable accommodation, I could both perform my job and protect my health. Ironically, Walmart is allowing pharmacies to close for lunch.” – Steven Orr
Next came Lawrence Lorber representing the U.S. Chamber of Commerce. I will say, he had a tough time at the hearing as most of the legislators present were very much for the Restoration Act. He presented the Chamber’s objections.
“H.R. 3195 is not a restoration act, it is an attempt to pass in 2007 a law that Congress examined and rejected in 1988. Instead the Congress of 1989 and 1990 addressed the issue of discrimination against handicapped individuals, disabled individuals, In many aspects, looked to the experience in 504, looked to the long experience under the other laws, state and federal, affecting the disabled and opted to choose a statutory scheme that recognized that those who were disabled, truly disabled, whose disability affected a major life activity, would then go on to require employers for Title I for the employment section to work interactively with those individuals and hopefully come up with accommodations to enable those individuals to meet their full and undoubted capacities and contribute to society.” – Lawrence Lorber
What I found most amusing was that the witness right after Mr. Lorber was Chai Feldblum, a professor at Georgetown University Law Center and an expert on disability law. She addressed the original ADA’s reliance on the language from Section 504 of the Rehabilitation Act of 1973. But I think that the majority of advocates in the room enjoyed her response to Mr. Lorber’s argument.
“Mr. Lorber says here what he says in his written testimony that IN 1989 Congress looked at a bill that would have the same language as the ADA Restoration Act and deliberately decided not to go that route and instead go the route of the language of the bill of the ADA.
And therefore it would be impossible to say that if you went back to that language you would be restoring your intent. Sounds like a prettry strong argument, right? So I went to see his citation for that. His citation was my law review article – that I wrote.
So if you actually read the rest of the law review article, you see that in 1986, the National Council on Disability (that you just heard from Mr. Collins) recommended that there be an American’s with Disabilities Act and they recommended a set of language that said physical or mental impairment and they had definitions of physical or mental impairment.
And we all said – Why are you using different language? We totally get what you’re trying to say: That anyone who has a physical or mental impairment and is discriminated against on that basis should, as you heard from Cheryl Sensenbrenner, be able to bring a claim.
If that’s what you’re trying to achieve – we said – you don’t need to use those words. We have words that have been in place for 15 years [under Section 504 of the Rehabilitation Act], we have lots and lots of cases; and under those cases, everyone with a range of impairments has been covered either under the first prong of the definition (an impairment that substantially limits a life activity), or they were covered under the third prong (they were regarded as), they were perceived [as disabled.] So what you are trying to achieve with this language, we can achieve with language that has been used for 15 years. That’s why the language from the bill in 1988 was not accepted and instead we went with the language of 504.
Well, guess what happened? As you’ve heard, the Supreme Court took the new language and started reading in all types of limitations, that had never been put in there by courts in 504.
So now, in 2007, we are back here again with the recommendation from the National Council on Disability saying – You know what? Maybe our first suggestion was the better one and that’s what H.R. 3195 does.” – Chai Feldblum
Anyway, there you have it, a quick summary of the testimony at the ADA Restoration Hearing. In the witnesses own words. For links to more information, please check the show notes.
CLOSING
And that is it for this week’s edition of Day in Washington. Please feel free to contact me at http://www.dayinwashington.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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