Joe Gerstandt | keynote speaker, freedom fighter, freak-flag flier

From the Society for Human Resource Management:

The U.S. House of Representatives is planning to consider legislation called the “ADA Restoration Act,” 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. There is significant concern that this legislation would reduce the effectiveness and availability of workplace accommodations for employees with the most severe disabilities.

The House Education and Labor Committee will hold a hearing on this pending legislation on Tuesday, January 29, 2008. Please let your legislators know that the ADA Restoration Act would be a complete rewrite of the ADA, and it is not a simple, noncontroversial tweaking of the nation’s most important disability nondiscrimination law. Urge your representatives to NOT CO-SPONSOR and to OPPOSE H.R. 3195, the ADA Restoration Act as it is currently drafted.

Background

The ADA was enacted in 1990 to protect individuals with disabilities from discrimination in employment, public services and public facilities. Most relevant to HR professionals, the ADA prohibits discrimination against current employees and job applicants by employers that employ 15 or more individuals, and requires such employers to provide reasonable accommodations to employees who have known disabilities.

Under current law, the ADA defines “disability” as “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” Individuals must meet this disability standard to be eligible for the ADA’s nondiscrimination and accommodation coverage.

In the past decade, there have been a handful of Supreme Court decisions related to the definition of disability under the ADA:

• Sutton v. United Airlines (1999)—United Airlines was found to have not violated the ADA when it refused to hire near-sighted twin sibling applicants as commercial airline pilots who both failed to meet United’s uncorrected vision standard of 20/100 or better for pilots.
• Murphy v. United Parcel Service, Inc . (1999)—The Court ruled that the ADA did not cover a UPS mechanic who used medication to control blood pressure that was otherwise too high to obtain a required health certification to drive commercial vehicles.

***The Sutton and Murphy cases established that courts can consider measures, such as eyeglasses for poor eyesight or medication for high blood pressure, to mitigate impairments when determining whether an individual has a disability under the ADA.

• Toyota Motor Manufacturing Kentucky Inc. v. Williams (2002)—A unanimous Supreme Court held in Toyota that an assembly line employee, who was limited by carpal tunnel syndrome in performing some manual tasks, was not disabled under the ADA because she was not substantially limited in a major life activity.

***The Toyota case offered clarity as to what degree of impairments can be considered to “substantially” interfere with a person’s daily activities, and therefore require coverage under the ADA. In Toyota, the Court held the plaintiff was only limited by carpal tunnel syndrome in certain activities that were not considered major life activities, as the plaintiff was able to perform other non-manual work duties.

Legislation

The proposed ADA Restoration Act (H.R. 3195) is a bipartisan bill introduced by Representatives Steny Hoyer (D-MD) and James Sensenbrenner (R-WI).

The ADA Restoration Act would:

• redefine the term “disability” to merely mean “a mental or physical impairment,”
• forbid employers from considering the effects of mitigating measures an individual uses to manage his or her impairment, and
• shift the burden of proof in determining job qualification in disability discrimination cases to the employer from the employee. (Under current law, an employee is required to be able to perform the job in question before an employer must provide an appropriate accommodation. The proposed legislation would eliminate this requirement, and thus would force employers to prove that a disability discrimination plaintiff is not qualified.)

SHRM’s Position

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.

Specifically, SHRM is concerned about the following aspects of the legislation:

• Overly expands disability protected class —By redefining the term “disability” to simply mean “a mental or physical impairment,” the ADA Restoration Act would change the ADA to cover far more people—virtually the entire workforce. Consequently, the legislation would mandate employers to provide accommodations to employees who have minor, even temporary, impairments that do not “substantially” affect one’s daily life, such as minor headaches, skin irritations or small scars.
• Excludes consideration of reasonable mitigating measures — In determining whether an individual is covered under the ADA, the legislation would forbid employers from considering the effects of medication or other mitigating measures (such as eyeglasses for near-sighted vision) that an individual uses to manage his or her impairment. This change would effectively strike the ADA’s requirement that an impairment must substantially limit an individual in performing daily activities.
• Transfers burden of proof to employers —Importantly, the ADA Restoration Act would take the unprecedented step in employment law of shifting the burden of proof in disability discrimination cases to the employer from the employee. Under current law, employers can establish job qualifications and, if an employee requests accommodation, will enter into an interactive process to see if an accommodation can and should be made. The ADA Restoration Act, however, would make the issue of job qualification an affirmative defense for employers. As a result, the bill would ultimately force everyday management decisions into litigation.

Action Needed

Write or call your elected officials in Washington today!   Your U.S. Representatives needs to know your views on this important matter before the private rights of employees are changed.