New Life for the ADA

Mr. Speaker, I rise to enthusiastically support the legislation that we just debated on the floor of the House. Having been detained in my Committee on Transportation Security and Critical Infrastructure during the debate, I wanted to come and support H.R. 3195, the ADA Restoration Act of 2007 [now the ADA Amendments Act of 2008]. This is truly a civil rights initiative, and it is important to restore the basic support and rights of those who are disabled in America.

Unfortunately, through the Supreme Court's narrow decision and definition of the word "disability," it made it very difficult for individuals with serious health conditions such as epilepsy, diabetes, cancer, muscular dystrophy, multiple sclerosis, and severe intellectual impairments to prove that they qualify for protection under the ADA.

The Supreme Court narrowed that definition in two ways: one by ruling that mitigation measures that help control an impairment, like medicine or hearing aids or other devices, must be considered a deserving disability; and, two, ruling that the elements of the definition must be interpreted strictly to create a demanding standard for qualifying as disabled.

Mr. Speaker, enough is enough. The civil rights of all Americans are an important constitutional element. We hold these truths to be self-evident that we are all created equal. This legislation, H.R. 3195, restores those rights. And I would like to affirm that my vote in the Judiciary Committee was a resounding "yes." The fact that I was detained, I want that to be reflected in the report.

This is an important bill. This bill is heavily supported, and I throw my support to a new civil rights law in America.

These were the heartfelt and enthusiastic words spoken on June 25th, 2008, by Representative Sheila Jackson-Lee (D-TX) in support of House Resolution 3195, which intends to erase the effects of various Supreme Court rulings that have arisen since the Americans with Disabilities Act was signed by President George Herbert Walker Bush in 1990. These rulings have focused on the question of who is disabled and the court has, over the years, sought to narrow the definition of “disabled” by taking mitigating factors into account. The legislation, which has overwhelmingly passed both the House and the Senate, amends the existing law in ways that will expand the definition of disabled back to where it was before the Court began to hear ADA cases.

So far, however, the two bills—that of the House and the one from the Senate—still need to be reconciled. Both versions reiterate that disability is defined as a physical or mental impairment that substantially limits one or more major life activities. Both bills also increase the number of activities covered, add a category of bodily functions and allow workers to sue if they are even regarded as being disabled. However, the House bill goes further in defining the phrase substantially limits as meaning materially restricts. The Senate bill avoids such clarifications. Senator Tom Harkin (D-IA) explained the difference this way in a Congressional Record statement: “The bill takes several specific and general steps that, individually and in combination, direct courts toward a more generous meaning and application of the definition.”

The Senate bill, by avoiding the specificity of the House version’s language, retains a significant amount of the existing case law while at the same time pushing for broader application of the ADA. The problem with either version, however, is the fact that we are likely to see a new round of ADA litigation as lawsuits based on the new amendments work their way through the courts, especially if it is the House version that comes to the fore since that bill does not actually define materially restricts, and it was the issue of definitions that formed the basis for many of the court cases the legislators wish to overturn.

So, what does all this mean to you? It means you need to be fully aware of what you can expect if and when the law is signed by the President. At the very least, employee records should contain nothing that might be used later in an ADA-related lawsuit. At the most, it will mean a revamping of your human resources function to be able to cope with the additional regulatory pressure that this new law will bring to bear upon your company. After all, there are ramifications to this new law that will take years to play out and for employers, that could mean a very bumpy ride.