Employers Welcome Compromise on ADA

By Staff Report

Jun. 30, 2008

The House of Representatives last week overwhelmingly approved a revised bill that would expand the scope of the Americans with Disabilities Act, allaying the business community’s concerns about a previous version of the bill.

Major employer groups had opposed the earlier bill, the ADA Restoration Act, fearing it would make ADA protections too broad. But after months of discussions with groups representing the disability community, the U.S. Chamber of Commerce, the National Association of Manufacturers and other business organizations threw their support behind a revised plan.

That revision, renamed the ADA Amendments Act, won House approval on a 402-17 vote.

On the eve of the vote, the Office of Management and Budget issued a statement of administration policy, saying the White House “strongly supports the overall intent” of the bill. While the policy statement raised some concerns about the bill’s language, it did not recommend a presidential veto.

A version of the legislation has been introduced in the Senate, but no vote has been taken.

Under current law, a covered disability is defined as a physical or mental impairment that “substantially limits one or more of the major life activities” of an individual. A person also would be considered disabled if there is “a record of such an impairment” or he or she is “regarded as having such an impairment.”

The earlier bill did not include the already existing requirement that a disability substantially limit a major life activity, leading some employment law experts to fear that the measure would lead to unwarranted claims and litigation.

The ADA Amendments Act, however, restores the requirement that a disability materially restricts one or more major life activities, and it provides a partial list of such activities. Like the earlier bill, the amended measure protects individuals “regarded as having such an impairment,” but makes clear that ADA protections do not apply to minor or transitory conditions. It also prohibits courts from considering mitigating measures in determining whether an impairment is substantially limiting.

Earlier court rulings held that a person whose impairment could be mitigated through the use of devices or medication would not have ADA protections. With the effective narrowing of the law’s protections, employer groups found themselves in agreement with advocates for the disabled that the courts had gone too far.

“We certainly did oppose the bill as introduced, and we believe it would have been far too sweeping an amendment to the ADA,” said Michael Eastman, executive director-labor law policy for the U.S. Chamber of Commerce in Washington. “However, we recognized that the disability community has identified some real problems with the court’s interpretations of the ADA. That’s one of the principal reasons we were willing to sit down with them and try to reach a common ground,” he said.

“From our perspective, this was about trying to correct this problem in the courts without opening up the ADA so broadly that every trivial impairment would be covered. I believe the compromise achieves that,” Eastman said.

“We came to a very delicate, negotiated deal,” said Keith Smith, director-employment and labor policy for the Washington-based National Association of Manufacturers, which had opposed the earlier bill. “It revamped the bill as it was introduced. The main aspect of this negotiated compromise legislation is it provides clarity for employers.”

Lawrence Lorber, a partner in the Washington office of Proskauer Rose who specializes in labor law, said the measure “will expand the coverage of the ADA really back to where it was in 1998,” before the series of Supreme Court and lower court decisions reduced coverage from the original ADA drafters’ intent. “The courts said if there were mitigating measures, the person wasn’t disabled. The notion—which I agree with—was that was not what Congress intended.”

If enacted, the ADA Amendments Act will “put a burden again on the human resources people who administer” its application, Lorber said. While it, like any other new law, likely will spawn some litigation initially, he said he doubted the change would significantly increase litigation over the long term.

“With any legislation like this we’ll expect some litigation,” NAM’s Smith said. “But if you look at the overall product of the bill, that’s something we’re proud to be behind.”

“It’s definitely got momentum, and we’re hopeful the Senate will recognize the efforts that have taken place in the House” and move quickly on the House bill, Smith said.

Filed by Mark A. Hofmann of Business Insurance, a sister publication of Workforce Management. To comment, e-mail

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