Day in Washington Podcast #19 (January House ADA Restoration Hearing)
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Episode Summary:
On January 29th, the House Education and Labor Committee held a hearing on the ADA Restoration Act. Unfortunately, I was home sick with the flu so was unable to attend in person. However, this podcast still contains clips of the oral testimony from witnesses “in their own words” courtesy of the Ed and Labor Committee’s webcast records.
Audio File: Day in Washington Podcast #19 – (January House Hearing on the ADA Restoration Act)
Show Notes
- Introduction, Date of Podcast
- Testimony of Majority Leader Steny Hoyer
- Testimony of Andrew Imparato
- Story of Charles Littleton, Jr.
- Testimony of Carey McClure
- Testimony of Dr. Robert Burgdorf
- Testimony of David Fram
- Closing and Contact information
- Disclaimer
Resources
House Committee on Education and Labor Hearing on the ADA Restoration Act (January 29, 2008)
Day in Washington Podcast #14(b) – Senate ADA Restoration Hearing (November 15, 2007)
Day in Washington Podcast #11 – ADA Restoration House Hearing (October 4, 2007)
Day in Washington Podcast #5 – ADA Restoration – An Analysis
American Association of People with Disabilities ADA Restoration Blog
Consortium for Citizens with Disabilities ADA Restoration Page - Includes Written Testimony of Additional Supporters
Day in Washington – Podcast #19 (February 11, 2008)
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 is Podcast #19 originally scheduled for Monday, February 11, 2008.
On Janary 29th, the House Education and Labor Committee held a hearing on the ADA Restoration Act. Unfortunately, I was home sick with the flu so was unable to attend in person. However, this podcast still contains clips of the oral testimony from witnesses “in their own words” courtesy of the Ed and Labor Committee’s webcast records.
One of the unintended results of having to rely on the webcast is that this podcast contains only those witnesses whose testimony was recorded and available on the website. Because I could not find any recordings of his oral testimony, I hope to include David Fram’s comments based on his written testimony.
By all accounts the hearing was very well attended by members of Congress and also members of the disability community. One of the difficulties with this issue in the past has been keeping the interest and intensity around passage of this legislation high. Especially with regard to Congress members who have so many other issues that they might deem a higher priority. This attendance is a good sign and is promising for further movement of this legislation in 2008, not an easy feat considering it is an election year.
The first Panel witness was House Majority Leader (and also one of the original co-sponsors of the bill) Steny Hoyer. His emphasis was on Congressional intent and how that when the original ADA was passed many of the current court-excluded categories of disability Congress MEANT to have these individuals covered.
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Since its enactment thousands of Americans have entered the workplace realizing self-sufficiency for the first time in their lives. However, despite our progress the courts, including the United States Supreme Court have narrowly interpreted the ADA limiting its scope and undermining, I suggest to you, Congressional intent.
When we wrote the ADA, we intentionally used a definition of “disability” that was broad – borrowing from an existing definition from the Rehabilitation Act of 1973. We did this because the courts had generously interpreted this definition in the Rehabilitation Act. And, we thought using established language would help us avoid a potentially divisive political debate over the definition of “disabled.”
Therefore, we could not have fathomed, or anticipated that people with diabetes, epilepsy, heart conditions, cancer, and mental illnesses would have their ADA claims rejected, kicked out of court because, with medication, they would be considered too functional to meet the definition of “disabled.”
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The second panel opened with Andy Imparato from AAPD. He shared his very personal interest in seeing this legislation passed sharing his own struggles with a mental health condition – bipolar disorder.
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On a personal level because of what the courts have done to the ADA, I can no longer believe I can count on the law to protect me from employment discrimination. At a minimum if I were to bring a case, I would be subjected to a barrage of questions that have nothing to do with my qualifications on the job. The ADA is not a disability retirement law but the Supreme Court and the lower Federal courts have gone out of their way to read the ADA as if it were only for people with disabilities that are so significant that they cannot work and cannot take care of themselves. Under this ruling two of the ADA’s strongest legislative champions Tony Coelho and Bob Dole would likely be told that they are not disabled enough to be protected by the ADA.
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He goes on to address one of the more outrageous examples of courts redefining disability.
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A 29 year old with an intellectual disability who was receiving Social Security Disability benefits, did not submit enough evidence to establish that he had a disability for purposes of the ADA. Examining whether Mr. Littleton is substantially limited in a life activity, the 11th Circuit stated that “It is unclear whether thinking, communicating, and social interaction are ‘major life activities’ under the ADA.
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For those of you who may not recall the Littleton case involved a young man with intellectual and developmental disabilities, Charles Littleton, Jr. who was attempting to get a job as a cart pusher at a local retailer. Wal-Mart to be specific. Regardless of the fact that he received Social Security Disability benefits, lived with his mother and is generally reported as having a cognitive age of eight, the court ruled that he was NOT disabled and therefore not entitled to protection from discrimination under the ADA. Sounds pretty outrageous, doesn’t it?
Perhaps the witness who I found most engaging and from the you tube video produced by the Ed and Labor Committee Democrats I would have say that they agreed with me was the testimony of Carey McClure.
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Good morning. My name is Carey McClure and I’m from Griffin, GA. I’ve been an electrician for over 20 years. When I was fifteen years old, I was diagnosed with facioscapulohumeral muscular
dystrophy. As a result of my condition, the muscles in my face, back, and upper arms are weak. My muscular dystrophy doesn’t stop me from living my life. There is virtually nothing I can’t do. Unfortunately, General Motors (GM) didn’t feel the same way.
In December 1999, GM sent me a letter offering me the job and asked me to take a pre-employment physical. When I got to Texas, I went to the plant medical directors office for my exam. For over twenty years, I’ve been an electrician. For over twenty years, I’ve worked on things above my head without a problem. But this doctor wouldn’t hear of it. He recommended that GM revoke my job offer, and that’s exactly what they did.
I didn’t know much about the Americans with Disabilities Act, but I knew that I had a disability, and that GM took my job away because of my disability – not because I couldn’t work as an electrician. I can do that job – that’s the bottom line. So I found a lawyer, and we filed a lawsuit.
The trial court said to me, “the ability to overcome the obstacles that life has placed in my path is admirable,” but that in light of my abilities, I was no longer disabled because I’d adapted so well to living with muscular dystrophy.
Well, you can’t have it both ways. Am I disabled or not? If I am then the ADA should have been there to protect me, and if I’m not, then I should be there working with my father and brother both at General Motors right now.
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Please pardon the music. It was seem that it was added later by the staff to the testimony recording on the web.
Dr. Robert Burgdorf spoke about the original intent of congress. Why his testimony is particularly important and impressive is that the Supreme Court itself in 1998 acknowledged him as the original drafter of the ADA. So even the man that the Supreme Court recognizes as the individual perhaps closest to the language says that their decisions are incorrect and not in keeping with what the legislation is supposed to do.
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Many people who were clearly protected by the ADA when it was enacted in everyone’s eyes that spoke at that time find out, when they are told by a court, “You may have a disability but its not a serious enough disability to be protected by the Americans with Disabilities Act.”
To put it as simply as I can, the courts have made a royal mess of the definition of disability and the ADA.
The things that Congress said, the very language of the statute has been interpreted in a way that it now means something totally different. Some of those things have to do with broad construction, some of them have to do with mitigating measures but they have to do with a lot of other things – That the court has taken the term “substantial limitation to a major life activity” and has turned it into a crushing burden, an impossible burden for many people with disabilities to meet. Or if they can, they have to do ridiculous things, like prove what their sex life is like; prove things that have nothing to do with the fact they were denied employment or terminated from employment.
This doesn’t represent an expansion if one understands what the third prong of the ADA said and what Congress and the Courts to that time had said, the third prong of the ADA – the “regarded as” means.
I quoted in my testimony from language from this committee’s report, that says very clearly, “It is because of a covered entity’s negative attitudes towards the person’s impairments they are treated as having a disability and covered under the third prong.”
Such an impairment might not diminish a person’s physical or mental abilities but could nevertheless substantially limit that person’s ability to work as a result of the negative reaction of others to that impairment. People could have minor impairments. People could have no impairment.
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One of the witnesses who unfortunately I do not have an audio clip of is David Fram from the National Employment Law Institute.
In his testimony Mr. Fram addressed what he felt were the three major changes that the ADA Restoration Act proposes:
1. Changing the Definition of Disability
2. Reversing the Surpeme Court Cases on the Issue of Mitigating Measures.
3. Changing the Burden of Proof.
With regard to changing the definition of disability…Perhaps one of the more frustrating and fulminating examples used was that of baldness as a disability. While I would enjoy to see the details of the case and opposition thoroughly debated, my personal thought is that I’m not sure it was the best example to give as it raised the ire of Congress members and the disability community and makes it difficult to engage in meaningful discussion. I imagine that there are and will be “close cases” but baldness isn’t a good example to use to examaine this issue.
One of the interesting points of Mr. Fram’s testimony was with regard to item #2 – Mitigating Measures. From the written testimony I would say that he agreed that the Sutton case did exclude individuals that Congress intended to have protected by the ADA and AGREED that disability should be decided without mitigating measures.
So it would seem that even the opposition agrees that there definitely is a problem and SOMETHING needs to be done…the point of contention is specifically the language of THIS ADA Restoration Act.
CLOSING
And that is it for this week’s edition of Day in Washington. For links to more information, please check the show notes. 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.
[...] Day in Washington Podcast #19 (January House ADA Restoration Hearing) Feb 18 ‘08, Day in Washington posts a podcast about the January 29 ‘08 House hearing on the ADA Restoration Act. Worth checking for the quotes from, and commentaries on, the witness testimonies. Follow the link to listen to the podcast, or they also have the full transcript toward the bottom of their page. [...]