An editorial in this morning's New York Times calls for Congress to pass legislation to undo recent Supreme Court precedent limiting the reach of the employment discrimination laws. By way of example, the editorial points to the Fair Pay Restoration Act and the Civil Rights Act of 2008, both of which are currently pending in Congress.
The Americans with Disabilities Restoration Act of 2007 is another currently pending bill in the same vein. It would amend the ADA to:
- redefine "disability" as a physical or mental impairment, a record of a such impairment, or being regarded as having a such impairment, eliminating the requirement that it substantially limit a major life activity;
- in determining whether an individual has an impairment, prohibit any consideration of the impact of any mitigating measures the individual may be using or whether any impairment manifestations are episodic, in remission, or latent;
- consider actions taken because of an individual's use of a mitigating measure to be actions taken on the basis of a disability; and
- shift the burden of proving that one is a "qualified individual with a disability" from the employee to the employer, as an affirmative defense.
This bill would radically alter the order of proof in ADA cases, and overturn a more than a decade of Supreme Court precedent on the definition of "disability."
George Lenard, at his Employment Blawg, asks the question, Does the ADA Need "Restoration"? George's opinion:
There have been some cases in which the definition of "disability" has been construed too narrowly, preventing individuals with quite substantial impairments from having their day in court. But the definition as it now stands is a sound one, and the Supreme Court cases were correctly decided under this definition.… But vastly more people would be within the "protected class" of individuals with disabilities, so increased litigation would be a given, including not only accommodation cases, but also ordinary disability discrimination claims (e.g., discharges allegedly due to trivial impairments). Even if employers would fare relatively well, litigation costs would rise. This is a legitimate concern.
George is spot on with his take on this bill and its likely effects. Let me add one more thought, that largely the current law takes care any concerns over the perceived narrowness of the definition of "disability." Remember, the ADA does not just protect those who meet the definition of having a disability, but also those who are "regarded as" disabled by their employers. As recently pointed out by the 6th Circuit in Gruener v. The Ohio Casualty Ins. Co.:
The ADA’s regarded-as-disabled definition of disability … protects employees who are "perfectly able" to perform a job, but are "rejected … because of the myths, fears and stereotypes associated with disabilities." Accordingly, it applies when "(1) [an employer] mistakenly believes that [an employee] has a physical impairment that substantially limits one or more major life activities, or (2) [an employer] mistakenly believes that an actual, nonlimiting impairment substantially limits one or more [of an employee's] major life activities." Either application requires that the employer "entertain misperceptions about the [employee]." (quoting (quoting Sutton v. United Air Lines, 527 U.S. 471, 489–90 (1999)).
Indeed, just last week the conservative 4th Circuit decided Wilson v. Phoenix Speciality, upholding a $200,000 verdict in favor of an employee who was regarded as disabled because of his medically controlled Parkinson's disease. The ADA already protects those who need to be protected. Expanding the coverage of those who qualify as truly "disabled" as envisioned by the ADA Restoration Act will only serve to undermine the original spirit of the law, the elimination of the misconceptions and stereotypes about the ability of the disabled to fairly compete for jobs.