Senate Could Act Quickly on Expanded ADA

By Staff Report

Sep. 5, 2008

When Congress returns from its summer break next week, it will enter the home stretch of the legislative year.

One bill that could find itself on the Senate fast track would expand protection against workplace discrimination for people with disabilities.
The measure, which passed the House 402-17 in late June, clarifies that Congress meant for the Americans with Disabilities Act to be broadly interpreted. The original measure, which became law in the early 1990s, required employers to make accommodations for disabled employees.

The new bill, the ADA Amendments Act, addresses Supreme Court decisions that critics say restricted the law. The court ruled in several cases that mitigating measures—such as medication or a prosthesis—make a person ineligible for coverage.

In an unusual show of cooperation, disability advocates and the business lobby compromised on the final bill, ensuring broad House support.

The Senate measure has 64 co-sponsors, four more than necessary to avoid a filibuster. The bipartisan momentum may prompt Senate Majority Leader Harry Reid, D-Nevada, to schedule a vote as early as this week.

“Reid is looking for a short list of doables,” says Mike Aitken, director of government relations for the Society for Human Resource Management, one of the groups backing the bill. “They’re going to bring up things that there is broad consensus on.”

Both the House and Senate versions reiterate that the definition of a disability is a physical or mental impairment that “substantially limits” one or more major life activities. They also increase the number of activities covered, add a category of bodily functions and allow workers to sue if they are “regarded as” disabled.

The House bill defines “substantially limits” as “materially restricts.” In an effort to garner more support, the Senate avoids such sharpening of the language.

“Instead, the bill takes several specific and general steps that, individually and in combination, direct courts toward a more generous meaning and application of the definition,” Sen. Tom Harkin, D-Iowa, said in a Congressional Record statement.

Differences between the House and Senate bills won’t slow down the measure, says Dan Yager, senior vice president and general counsel of the HR Policy Association.

“Our hope is that they could get something off to the president fairly quickly,” Yager says.

The lack of a specific definition of “substantially limits” in the Senate measure, however, could require courts to step in again.

“At the center of the continuum, the question [of who is disabled] is probably straightforward,” says Neil Abramson, a partner at the law firm Proskauer Rose in New York.
“At the margins, it’s more difficult. That will probably generate, at least in the beginning, litigation,” he says.

HR departments will have to be fastidious about ensuring that language in employee files pertains only to performance so that it doesn’t become fodder for disability lawsuits.

“It’s going to require a fairly diligent HR function,” Abramson says. “The nuances are fairly complicated and will be fairly significant as this plays out.”

—Mark Schoeff Jr.

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