Mending the ADA

Bill to be re-introduced to restore court-weakened rights for persons with disabilities

In the years since the 1990 passage of the ADA, disability advocates have been concerned with what is perceived as a steady erosion of these rights by the Supreme Court. To repair the damage, federal lawmakers plan to introduce a bill later this session that adds language to the ADA both defining disability unambiguously and ensuring that the courts enforce the ADA as it was originally intended by Congress.

Last year, a similar bill had bipartisan support but was introduced too late in the session to make it to the floor of the House of Representatives; there was no companion bill in the 2006 Senate. 

Momentum for a restoration bill began building in 1999, when in the course of one day, the Supreme Court decided three cases that each undermined disability rights. The main arguments in these cases were cited in the principal case, Sutton vs. United Airlines. The court held that if a person with a disability could remedy the effects of that disability by, for example, wearing glasses to correct vision, or taking medicine to control seizures, that the person could not be defined as disabled. A person could be defined as disabled, the court said, only if corrective measures did not eliminate the disability.

In the Sutton case, for example, two sisters applied to be pilots for United Airlines. They were already certified pilots. Without their glasses, their sight did not meet the vision qualifications set out by United Airlines. When they wore glasses, however, they met the qualification. United Airlines used a standard that persons must meet the required visual acuity without glasses. The Supreme Court argued that since the sisters did not have a visual acuity problem if they wore glasses, they did not have a disability. In other words, their potential impairment was corrected through the use of glasses. 
 
Advocates and attorneys have scrambled ever since that ruling to find ways to pass the initial hurdle—defining a disability. Holdings by the Supreme Court in employment discrimination cases continue that conservative approach to defining disability. Speaking earlier this week at the New York Law School,ongressman F. James Sensenbrenner, Jr., (R-Wisconsin) said, “…I believe the ADA has not reached its full potential because some Supreme Court decisions have gotten it wrong. Significant limitations imposed by the federal courts on the ADA’s protections, particularly in the employment context, have negatively impacted disabled Americans.”

Rep. Sensenbrenner, one of the co-sponsors of the original ADA legislation in 1990, has personal reasons for understanding the necessity of providing civil rights to persons with disabilities. His wife was in a serious accident in her 20s and has very limited mobility and uses a wheelchair. She serves on the board of the American Association of Persons with Disabilities (AAPD).
 
The language of the Restoration Act of 2006 was crafted to address the problem in three ways. First, it would add language to make it clear that Congress intended the definition of disability cited by the ADA to include, in the definition, persons who had taken corrective measures but who would continue to be disabled without those measures. Second, the bill would introduce language specifically defining disability into the ADA, language which was previously available only in the regulations promulgated by EEOC. Third, the bill is preceded by “findings” that explain why this bill is necessary.

In view of the election results in November 2006 and the changes in composition of both houses, there is currently more optimism that such a restoration bill could pass, so the bill will be re-introduced this year by House Majority Leader Steny Hoyer, and cosponsored by Representative Sensenbrenner.

This is not the first time it has been necessary to pass restorative language to protect civil rights. In 1991, Congress passed the Civil Rights Restoration Act to restore protections to persons asserting employment discrimination because of race or sex. Advocates hope that the current legislation aimed at providing protections is as successful as the 1991 language.

Kathleen Hagen is a staff attorney for the Minnesota Disability Law Center.