CONGRESS PROPOSES RADICAL EXPANSION OF THE AMERICANS WITH DISABILITY ACT

By

Jerry P. Cline, Esq.

On January 29, 2008, the Congressional Committee on Education and Labor held a full committee hearing on H.R. 3195, the ADA Restoration Act of 2007.  The Restoration Act, if passed as currently written, would radically expand the reach and scope of the Americans with Disabilities Act to the detriment of employers.  In effect, the “restoration” would unreasonably expand the pool of “disabled” employees protected from discrimination under the Act.  For example, the reach of the ADA under the Restoration would protect, as disabled, employees with near-sightedness but who wear eyeglasses.  The Restoration would also include employees with impairments that are routinely corrected with medication and other aids.  However, contrary to the Restoration Act sponsors’ position, the ADA was never meant to define nearly all employees as disabled and its passing would result in a flood of new disability discrimination lawsuits. 

The ADA

The ADA was enacted in 1991 “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”  Under current law, a disability is defined generally as “a physical or mental impairment that substantially limits one or more major life activities.”  The courts have narrowly construed this definition to create a demanding standard for qualifying as disabled under the Act.  Thus, a "disability," for purposes of gaining protection under the Act, exists only where an impairment "substantially limits" a “major life activity.”

A “physical impairment” has been defined rather broadly and includes “any physiological disorder, condition, cosmetic disfigurement or anatomical loss, etc.”  “Substantially limits” generally means “unable to perform a major life activity that the average person in the general population can perform.”  A “major life activity” means “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 

Courts have also considered mitigating measures, such as eyeglasses, to determine whether an individual’s impairment substantially limits a major life activity.  For example, the Supreme Court has held that, for purposes of the ADA, an individual is not disabled where that individual’s impairment, nearsightedness, is corrected by eyeglasses.

The Restoration Act

The proposed amendments to the ADA would greatly expand the pool of employees considered “disabled” under the Act.  Under the Restoration Act, a person would be considered “disabled” simply if that person has “a physical or mental impairment.”  No analysis would be made as to whether the impairment substantially limits any major life activity.  Moreover, the determination of whether an individual has a physical or mental impairment would be made without consideration of any mitigating measures the individual may be using, such as eyeglasses, medication, or other devises.  This means that virtually every employee would gain “protection” under the Act.  Employers know what this means – more frivolous law suits and increased legal fees.