House Considers Bill That Expands Definition of Disability

By Staff Report

Jan. 30, 2008

An economic stimulus package wasn’t the only topic drawing bipartisan consensus in the House of Representatives.

Republicans and Democrats at a House Education and Labor Committee hearing on Tuesday, January 29, agreed that Carey McClure was wronged by General Motors when it denied him a job, and by a court when it ruled he was not disabled.

But the parties disagreed about whether a bill that would reform the Americans With Disabilities Act was the best way to address the situation McClure and others have faced.

McClure, an electrician who suffers from muscular dystrophy, had a GM job offer rescinded in 2000 after a doctor discovered his ailment during a required examination. The doctor maintained that McClure couldn’t meet the physical requirements of the position he had landed.

Throughout his life and 20-year career, McClure found ways to work around his disability and succeeded in his field. But when he sued GM, the company argued that he wasn’t really disabled. A trial court agreed.

“Basically, the court punished me for making myself a productive member of the workforce for over 20 years,” McClure said in testimony before the committee.

Following Supreme Court rulings in 1999 and 2002, courts have been applying a strict standard for determining whether someone has a disability. They also have held that “mitigating measures” like medication or eyeglasses can disqualify someone from disability protections.

In response, House Majority Leader Steny Hoyer, D-Maryland, introduced a bill, the ADA Restoration Act of 2007, which would redefine a disability as a physical or mental impairment.

It also would prohibit courts from considering “mitigating measures” and require that employers prove an individual is not qualified for a job.

Business advocates criticized the bill, saying it would substantially increase the number of people covered under the law and drive up company costs as they accommodate many different kinds of impairments that could encompass the flu, a sprained ankle, a chipped tooth or hair loss.

The Department of Justice said the measure would modify the definition of disability so that it did not refer to substantially limiting major life activities.

Hoyer asserted that his measure, which has 244 bipartisan co-sponsors, including the ranking Republican on the House Judiciary Committee, simply clarifies the congressional intent of the original disabilities legislation.

“The bill does not seek to expand the rights guaranteed under the landmark Americans With Disabilities Act,” Hoyer testified. “It responds to court decisions that have sharply restricted the class of people who can invoke protection under the law. Simply put, the point of the ADA is not disability; it is the prevention of wrongful and unlawful discrimination.”

Further action on the bill hasn’t been scheduled.

David Fram, director of ADA and EEO services at the National Employment Law Institute, was skeptical of the measure.

It “could lead to a deluge of unintended consequences,” he said. “I don’t think there would be a flood of litigation. I think there would be broad new responsibilities for employers.”

Those burdens would be caused by making workplace accommodations for potentially millions of people or granting their requests for leave.

“Every single one of us has some kind of impairment,” he said. “This would essentially make the Family and Medical Leave Act irrelevant—or half of it anyway.”

The ranking Republican on the committee, Rep. Howard “Buck” McKeon, said he wanted to fix a problem like the one that McClure faced. But he warned that expanding the ADA too much would dilute it.

“Resources could be stretched too thin, leaving those who need help the most without the accommodations they deserve,” he said.

McClure maintained that enlarging the ADA would not foster frivolous lawsuits. “I’ve worked with a sprained ankle,” he said. “Most of us just want to work like everyone else.”

Rep. Robert Andrews, D-New Jersey and chairman of the hearing, said states like his and California, which have broad disability laws, have not seen a spike in litigation. He said the bill would correct erroneous interpretations of federal disability law.

“The courts have confused the question of who has a disability with the question of what should be done in response to that disability,” he said.

He also argued that in the midst of fierce global competition, disability laws will help deepen the labor market.

“We can’t say to any person that we can leave your talent out,” he said.

—Mark Schoeff Jr.

Schedule, engage, and pay your staff in one system with