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One Response to “ SHRM Conference and Another ADA Restoration Perspective ”

1. 

   admin on March 17, 2008 at 1:13 pm

   Day in Washington – Podcast #23 (March 17, 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 #23 scheduled for Monday, March 17, 2008.

   This last week -March 10-12, 2008, the Society for Human Resource Management held their Employment Law and Legislative Conference. The conference generally provides information about the latest legislative issues pending at the federal and state levels, as well as compliance and regulatory issues that affect how organizations conduct day-to-day HR business. On their list of issues this year was the ADA Restoration Act.

   Now to make sure I’m not misquoting anyone let me use the language from SHRM’s January Legislative Alert: The “ADA Restoration Act,” is a bill that would expand the definition of “disability” under the Americans with Disabilities Act in order to cover — and require employers to accommodate — people who have minor or temporary impairments such as near-sightedness, headaches, small scars and even “tennis elbow” or tattoos. SHRM opposes the ADA Restoration Act because it would fundamentally change the definition of disability under the ADA.

   Expanding the definition of disability would greatly increase the number of covered individuals competing for the same employer funds and dilute an employer’s ability to provide resources to individuals with the most severe disabilities.

   It saddens me that SHRM has taken this stance. Especially considering that one of their highlighted presentations at their 2006 annual conference was titled: Accommodate, Don’t Litigate. Attorney Kathy Perkins told her audience, “It’s far better to accommodate than to debate—in-house or in court—about whether an employee’s physical or mental condition is or is not a disability.” The ADA Restoration Act was created to address the problem with the definitional morass of what is and is not a disability.

   What is an interesting point is that SHRM and the U.S. Department of Labor’s Office of Disability Employment Policy (ODEP) signed an alliance on Oct. 26, 2006, to help employers hire workers with disabilities. The organizations also have sponsored Disability Mentoring Day programs, launched by the American Association of People with Disabilities, in October for the past three years.

   In addition, many disability organizations are mid size to large employers who use SHRM’s services. And, also as a point, none of those organizations have ever been contacted by SHRM for their perspective on ADA Restoration. I know personally that a couple of those disability organizations have directly contacted SHRM to express their disappointment and are withholding their human resources department’s participation in SHRM activities and events, including membership.

   The disability community has very clearly stated its perspective, as has the Chamber of Commerce and SHRM. But is there some middle ground? What other perspectives are there? Is this an all or nothing issue? I don’t think it is all black or white but the law has always been rather fond of bright line rules.

   One interesting perspective was put forward by George Lenard of the Employment Law Blawg. Mr. Lenard is the current managing partner for Harris, Dowell, Fisher and Harris a Management Labor and Employment Law Firm. Regardless of whether one agrees with his opinion or not, it is easy to respect his well thought out responses that are well rooted in the practical world.

   He acknowledges that there have been some cases in which the definition of “disability” has been construed too narrowly, preventing individuals with quite substantial impairments from having their day in court, but feels that the definition as it now stands is a sound one, and the Supreme Court cases were correctly decided under that definition. Mr. Lenard specifically states that in his opinion, SHRM’s position is excessively alarmist but agrees the proposed law is unnecessary and definitively opposes it.

   Now, keeping in mind his opposition to the ADA Restoration Act goes on to describe the potential impact of the proposed changes:

   “The sky will not fall on employers if we get a Democratic takeover that passes the proposed legislation. I think courts would still reach the right result on the type of trivial cases SHRM points to, perhaps by construing requested accommodations in such cases as not “reasonable.”

   But vastly more people would be within the “protected class” of individuals with disabilities.”

   He does point out that increased litigation would be a given, including not only accommodation cases, but also ordinary disability discrimination claims (e.g., discharges allegedly due to trivial impairments).

   What is an interesting addition to his blog post on this issue and caught my attention was that he felt a more effective response would be for Congress to increase the funding of the EEOC, so its lawyers could litigate more disability cases. With more experienced attorneys, many of the “bad lawyering” errors in disability cases would be decreased.

   If you get the opportunity, I encourage you to take a look at his blog at http://www.employmentblawg.com. Please check the links in the show notes for more information.

   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.