On Thursday morning, October 4, 2007, at 10 am, the Subcommittee on Constitution, Civil Rights, and Civil Liberties of the House Judiciary Committee will hold an important hearing on renewing the Americans with Disabilities Act. The hearing will focus on the ADA Restoration Act (H.R. 3195), the bill designed to restore the rights of the many people who have lost their civil rights protections due to the narrowing of the ADA in the courts.
These hearings will be held on Thursday in Room 2141 of the Rayburn House Office Building in Washington, DC.
BACKGROUND: Seventeen years ago, Congress passed the Americans with Disabilities Act (ADA) with overwhelming bipartisan support. However, in recent years, a number of Supreme Court decisions have significantly reduced the protections available to people with disabilities in employment settings. Courts are quick to side with businesses and employers, deciding against people with disabilities who challenge employment discrimination 97% of the time, often before the person even has a chance to show the employer treated them unfairly.
Indeed, courts have created an absurd Catch-22 by allowing employers to say a person is “too disabled” to do the job but not “disabled enough” to be protected by the ADA. People with conditions like epilepsy, diabetes, HIV, cancer, hearing loss, and mental illness that manage their disabilities with medication, prosthetics, hearing aids, etc. -- or “mitigating measures” -- are viewed as “too functional” to have a disability and are denied the ADA’s protection from employment discrimination. People denied a job or fired because an employer mistakenly believes they cannot perform the job or because the employer does not want people with disabilities in the workplace are also denied the ADA's protection from employment discrimination. Passage of the ADA Restoration Act of 2007 is critical to restoring the intent of Congress when it originally passed the ADA.
As Rep. Steny Hoyer stated when he introduced the ADA Restoration Act of 2007 on July 26, 2007, “the point of the ADA is not disability; it is the prevention of wrongful and unlawful discrimination.” The courts have spent an exorbitant amount of time parsing the question of whether a person is really “disabled,” when the real question is whether the person was treated unfairly on the basis of an irrelevant personal characteristic (disability). Courts do not require people alleging race or sex discrimination under other civil rights laws to first prove their race or gender – instead, they look at whether race or gender was the basis for the adverse action. Under the ADA, however, before a court will hear a person’s discrimination claim, the person is currently required to first prove in excruciating detail how “disabled” he or she is. This is not what Congress intended in the original ADA.
Instead, as Rep. Jim Sensenbrenner said when he joined Mr. Hoyer in the introduction of the ADA Restoration Act of 2007, this bill helps ensure that the ADA takes its rightful place among other civil rights laws, and “will force courts to focus on whether a person has experienced discrimination ‘on the basis of disability,’ rather than require individuals to demonstrate that they fall within the scope of the law’s protection” at all. That was what Congress originally intended – to focus a spotlight on unfair discrimination against people with a broad range of disabilities.
When Congress passed the ADA, when President George H. W. Bush signed the law, and when Attorney General Dick Thornburgh promulgated regulations to implement the law, the intent of the ADA was crystal clear – the law was intended to apply to everyone who experienced discrimination on the basis of disability, not just those with severe disabilities. Congress did not expect its legislative history, and prior case precedent, to be ignored.
ADA Watch/NCDR joins CCD, NCIL and the larger disability rights community and urges Congress to pass the ADA Restoration Act (H.R. 3195), restoring the original intent of Congress to ensure the right to be judged based on performance, harmonizing the ADA with other civil rights laws, and requiring the courts to interpret the law fairly.
http://www.adawatch.org/
1 comment:
I support the ADA Restoration Act for restoring the original intent of ADA. The Act is the only avenue a person with a disability has when faced with employment discrimination once the disability is known.
I've read with great interest our association's comments/opinions on disability self-disclosure forms to determine if I am wrong in believing this method creates a liability/risk to the company.
I say this because my company won a potential lawsuit because we did not participate in self-disclosure on disabilities. There was no evidence to prove a disability was known when the employment decision was made. Also because state and federal regulations are clear that disability information "should not" be available in employment decisions. Our laws only require that an employer publicize, announce, "make it known" that discrimination based on disability will not be tolerated, that one can file a complaint and expect remedial action if one experiences disability discrimination or harassment, and that the company will make a reasonable accommodation when requested.
Our laws/regulations are the best an agency can expect of an employer. Due to a complaint of discrimination based on disability in a New Jersey industry, an outside agency was contracted to perform a confidential survey of all employees in the industry (an estimated 30,000+). The results were positive and many of the recommendations were embraced. This is another possible method to determine equitable employment practices for the disabled.
Self-disclosure on individual disabilities is not something I would advocate not only because of the potential liabilities/risks attached to such a practice but also because it provides the potential to discriminate, consciously or unconsciously. For example, how difficult would it be for a recruiter not to consider in an employment decision the fact that an applicant has HIV. We would all like to say it would not be a factor, but we are only human, and someone could allow it. On the other hand, someone may say, "But this is a health risk to the company! We should know this!" We must remember there are many health risks employees, customers, vendors, guests expose to others and they are not disclosed. Does that mean we should all carry an arm band, flag, bracelet or tag indicating we are a health risk? And, can we later be judged fairly in a court of law when we suspect discrimination based on that medical knowledge?
Sometimes, "ignorance is bliss!" Other times, laws should be in place to protect us. Today, the original intent of ADA protects the disabled.
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