Reinforcing Federal Intent: The ADA Amendments Act of 2008

Reinforcing Federal Intent: The ADA Amendments ACT of 2008

Story by Charles Dervarics

While the Americans with Disabilities Act (ADA) of 1990 was a watershed moment in American politics, it did not signify the end of the battle for civil rights among people with disabilities. In fact, the years after the landmark law brought considerable frustration, as ADA’s implementation and subsequent court challenges left many advocates on the defensive and seeking additional action to enforce the legislation’s original intent.

From employment to public accommodations, “It was as if individuals had to constantly prove that they had a disability,” said John Kemp, president of The Viscardi Center, a New York-based nonprofit that provides services to educate and empower individuals with disabilities. In the process, a once-vaunted civil rights law became one of only limited assistance. Due to successful court challenges to the ADA, the law was interpreted in a way that was inconsistent with the intent of the people who wrote the law.

Over time, however, these developments spurred round two of the fight for equal rights. This work culminated in 2008 when advocates for the disability and the business communities sought common ground in reinforcing the ADA’s original intent. The end result was the ADA Amendments Act of 2008, approved by Congress and signed into law by President George W. Bush in September 2008. In a rare show of cooperation, overwhelming bipartisan support from both Republicans and Democrats had paved the way for final passage.

The Case for Reforms

The ADA of 1990 prohibited discrimination based on disability, similar to the way previous civil rights laws provided the same protection based on race, religion, and gender. But as with all new laws, this federal statute was subject to implementation on the ground and in the courts. In this case, advocates for people with disabilities said that federal regulations and, particularly, court rulings, subverted the law’s original intent.

“Attorneys had exploited loopholes in the law to weaken its civil rights protections,” said Bobby Silverstein, a Washington, D.C., attorney who knows the issue well. As a senior aide to Sen. Tom Harkin, D-Iowa, one of the architects of ADA, Silverstein played a major role in writing the details of the 1990 law. While advocates voiced some unhappiness with federal regulations for the ADA, they were particularly challenged by court rulings, including those from the U.S. Supreme Court.

In one case, Sutton v. United Airlines Inc., a pair of sisters who flew cargo planes wanted to fly passenger jets for United. But they failed to meet a company policy requiring uncorrected 20/20 vision, even though they could achieve that level of vision with corrective lenses. The sisters took the company to court, arguing that United’s vision requirement was not job-related and consistent with business necessity. But the Supreme Court never reached the issue of whether the vision requirement was OK under the ADA because the Court ruled 7-2 that the sisters were not disabled enough to qualify for civil rights protections under the ADA.

In another case, Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, Toyota employee Ella Williams sought an accommodation because of carpal tunnel syndrome. She had initial success suing Toyota for failing to provide reasonable accommodations under the ADA, but the U.S. Supreme Court eventually ruled unanimously that her health issue was not a “disability” and did not limit any major life activity.

These were “problematic cases for those with disabilities,” said Andrew Imparato, an attorney and former president of the American Association of People with Disabilities (AAPD) who worked with bipartisan leaders on Capitol Hill to undo the harm that the federal courts had created.

President George W. Bush, seated, signs S. 3406, the ADA Amendments Act of 2008, in a ceremony in the Oval Office of the White House, Sept. 25, 2008. Standing behind Bush are, from left to right, former President George H.W. Bush; Rep. James Sensenbrenner, R-Wis.; Cheryl Sensenbrenner; Rep. Steny Hoyer, D-Md.; Rep. Buck McKeon, R-Calif.; Rep. Jerrold Nadler, D-N.Y.; Sen. Tom Harkin, D-Iowa; Sen. Mike Enzi, R-Wyo.; Rep. Jim Langevin, D-R.I.; and U.S. Attorney General Michael B. Mukasey.

AP Photo/ Pablo Martinez Monsivais

According to Imparato, the practical result of these rulings was that individuals with disabilities faced a more difficult hill to climb to prove a disability and show that a disability affected a major life activity, a core ingredient of the ADA’s original protections. Sutton in particular focused attention on whether corrective measures – from contact lenses to new, cutting-edge medications – might lessen the effects of a disability.

“The practical result of these rulings was that disabled individuals were penalized if they were able to manage the symptoms associated with their disability,” he said. “Anyone who functioned well with a disability had their cases thrown out.” Under Williams, the Supreme Court also ruled that when Congress used the term “substantially limited” they meant “prevented or severely restricted” from doing the major life activity. Individuals with disabilities “were basically caught in a catch- 22,” Imparato said. “If you did fine with corrective measures, the courts said that you weren’t disabled. And the evidence you submitted to demonstrate the level of your impairments was used against you on whether you were qualified for the position in question.”

Other cases affected the ability of individuals with disabilities to utilize services specifically designed for them. Imparato related one case in which an individual with an intellectual disability showed up for a job interview with a job coach. But the prospective employer said the coach could not attend the interview even though the job seeker viewed the coach as a reasonable accommodation under ADA. The court sided with the employer, questioning whether thinking was a major life activity for purposes of the ADA. The Sutton v. United Airlines Inc. case reflected “an incredibly activist Supreme Court decision,” he said. “The Court really went out of its way to disregard the three federal agencies charged with enforcing the ADA, all of whom had said in regulations that you should look at someone in their natural state when you are determining if they are impaired enough to qualify for protections under the ADA. By ruling against this interpretation, the Supreme Court created nine years of decisions where most people with epilepsy, diabetes, depression, and a wide range of other conditions were losing on the issue of whether they were disabled enough to challenge employment discrimination.”

As applied in real-world situations following these decisions, “an individual’s impairment did not necessarily constitute a disability,” according to The Viscardi Center’s Kemp. To a point, he noted, advocates had expected some court challenges to the 1990 law. “This is what happens in any civil rights law,” he said. “There’s always a first round of legal tests working their way through courts. But in this case, the disability community was losing almost all of these cases.” By finding loopholes in the ADA, Kemp said, “The burden of proof had decisively changed. An individual had to prove they had a disability.”

Key supporters of the ADA Amendments legislation celebrate the passage of the bill in the Senate. Pictured from left to right are Sen. Tom Harkin; Rep. James Sensenbrenner; Sen. Orrin Hatch; Randy Johnson, U.S. Chamber of Commerce; Cheryl Sensenbrenner; Rep. Steny Hoyer; Nancy Zirkin of the Leadership Conference on Civil and Human Rights; Mike Eastman, a key negotiator for the U.S. Chamber of Commerce; and Andrew Imparato.

Photo courtesy of The Leadership Conference on Civil and Human Rights

Appealing to Congress

With concern mounting about these court challenges, advocates for the disability community mounted new efforts to convince Congress to amend the law and clarify the ADA’s original intent. “When these rulings came down, many of us in the disability community felt we had to do something,” Imparato said. “A lot of people who Congress thought they were protecting through ADA were not getting protection.”

One of the first attempts was in 2004, when an independent federal council, the National Council on Disability, released “Righting the ADA,” a report that outlined how courts had undermined the original aim of the 1990 law. The Council, whose job was to advise Congress and the White House, proposed legislative fixes to invalidate the court rulings and reinforce ADA’s initial provisions.

Soon after, a coalition of organizations representing the broad disability community launched an effort to pursue a legislative remedy. According to Imparato, one key player was Rep. James Sensenbrenner, a Wisconsin Republican who chaired the House of Representatives’ Judiciary Committee when the process began. On the last day of the 2006 congressional session, when lawmakers announced priorities for the next congressional term, Sensenbrenner introduced the ADA Restoration Act to overturn the recent court rulings. Rep. Steny Hoyer, a senior Democrat from Maryland, was a co-sponsor. After a new Congress convened the next year, the legislation was re-introduced on the anniversary of the ADA’s passage and bipartisan negotiations got underway.

“We started out with a lot of Republican support right off the bat,” said Imparato. He credited Sensenbrenner as well as his wife, Cheryl, who was a board chair of AAPD at the time and sent handwritten notes to many of her friends in the House Republican caucus. “We were able to get a lot of GOP support because of Cheryl Sensenbrenner,” he said. But the issue was far from resolved, as public hearings included witnesses for the disability community favoring the bill and those from the business community opposing the legislation. Most of the business witnesses believed the bill would go too far and impose new burdens on the private sector.

But the unfairness of many of the court rulings generated support for the disability community, Imparato said. At public hearings alongside business leaders, “Our witnesses were more compelling,” he said. “We had so many bad cases that it was easy for us to explain to members of Congress that the court rulings were ridiculous.”

At this point, the disability community and leaders from top business groups began meeting in February 2008 to find common ground. Participants in these discussions included representatives from AAPD, the National Council on Independent Living, the Bazelon Center for Mental Health Law, the National Disability Rights Network, the Epilepsy Foundation, and others. From the business community came the U.S. Chamber of Commerce, the National Association of Manufacturers, the HR Policy Association, and the Society for Human Resource Management.

Business leaders joined the discussions because “everyone needs to know who’s covered under the ADA,” Silverstein said. “They did it for defensive reasons, but they also took a very balanced approach,” said Kemp, whose task was to convince the private sector that any clarification of the law would not pose undue harm to business. Thomas Donohue of the U.S. Chamber of Commerce was taking a proactive role, recognizing that the law’s original intent had merit. “We built a bipartisan coalition and got bipartisan support,” Silverstein added.

According to Imparato, the main focus of the negotiators was to reiterate the protections of the 1990 ADA but to not exceed it significantly. Business negotiators “were fine with declaring someone disabled if they had epilepsy, but not if they had a common cold,” he said. The tone of the negotiations was “a reflection of that common focus.”

By May 2008, the final negotiated bill did restore a broad definition of disability for the ADA. It also clearly delineated what constitutes a “major life activity” to include having problems with a bodily function and specifying those bodily functions. The bill was presented to bipartisan supporters in Congress. Once the legislation reached Capitol Hill, Imparato said, another key advocate for the disability community was Tony Coelho, a former majority whip of the House of Representatives and a person with epilepsy who chaired the board of the Epilepsy Foundation of America at the time.

THE ADA AMENDMENTS: AN OVERVIEW

The ADA Amendments Act of 2008, also known as Public Law 10-325, took effect on Jan. 1, 2009. Passed by Congress and signed by then-President George W. Bush, the legislation reversed court decisions and some regulations of the Equal Employment Opportunity Commission related to interpretation of the 1990 Americans with Disabilities Act.

According to the U.S. Department of Labor, provisions of the law:

• Maintain the definition that a disability is an impairment limiting at least one major life activity;

• Expand the regulatory definition of “substantially limits” a major life activity in a way that, advocates say, makes it easier for those with disability to show they are protected under the law;

• Prohibit the consideration of “mitigating measures,” or corrective actions including assistive technologies and an individual’s medications, in looking at whether an impairment can limit someone’s major life activities;

• Expand the definition of “major life activities” to include seeing, hearing, eating, sleeping, bending, breathing, reading, thinking, caring for oneself, and working; and

• Include under “major life activities” a list of major bodily functions that include the immune system and normal cell growth as well as digestive, bowel, bladder, neurological, brain, respiratory, and circulatory functions. In essence, said Kemp, the legislation ensured that the term “major life activities” was, in the end, “not open to interpretation.” It also expressly invalidated U.S. Supreme Court cases such as Sutton v. United Airlines Inc. that advocates believed had served to limit protections for those with disabilities.

One item that some advocates wanted in the 2008 law – but ultimately was not included – was language guaranteeing equal access to the Internet among those with disabilities. However, this issue was largely addressed in 2010 when Congress passed and President Barack Obama signed the Equal Access to 21st Century Communications Act, or Public Law 111-260. That law’s intent was to guarantee access to the Internet and online services for those with disabilities.

According to the Federal Communications Commission, this law ensures that smartphones are easily accessible and usable by those with disabilities. Another key provision is that individuals with disabilities, particularly those with sight and hearing challenges, can access video programming on the Internet complete with captioning and other assistive devices.

The team of individuals that worked to secure passage of the ADA Amendments legislation in the House of Representatives poses on the steps of the Capitol after the bill’s House approval. Among those pictured are Nancy Zirkin (front row, center); Chai Feldblum, then a law professor representing the Epilepsy Foundation and presently commissioner of the Equal Employment Opportunity Commission (just behind Zirkin); Sandy Finucane of the Epilepsy Foundation (far right); Randy Johnson of the U.S. Chamber of Commerce (directly behind Feldblum); Mike Eastman (to the right of Johnson); and former Congressman Tony Coelho (last row).

Photo courtesy of Sandy Finucane

Ultimately, the plan passed by unanimous consent in the Senate and by voice vote in the House. “To overturn four Supreme Court cases and have it pass in both chambers without a roll-call vote was astonishing,” Imparato said.

Looking back, advocates for the disability community found much to celebrate. “It was a compromise that was healthy and fair,” Kemp said. In the end, “Everyone needed to know who would be covered by this law.”

Later federal regulations supported the intent of the 2008 law, and the disability community has been generally pleased with the post-2008 environment. “It doesn’t mean that we love every court decision since 2008,” Imparato said. “But the problems we had with cases just being thrown out of court have gone away.”