Legislative Updates

From Jean Jones
DVR/DVS Legislative Information Representative

2009 ~ 2008 ~ 2007

September 24, 2008

Americans with Disabilities Act Amendments Signing

President Bush has indicated he will sign the ADA Amendments of 2008 (S. 3406) into law on Thursday, September 25th in a private ceremony with several members of Congress present.

Why the ADA Amendments came about:

The ADA Amendments were needed because Supreme Court decisions over recent years had narrowed the definition of disability and drastically reduced the number of people with disabilities who could be protected by ADA against disability-based discrimination. Courts had said that if a person takes medicine, uses adaptive aids, therapies or prosthetics for a physical or mental condition, they might not be considered disabled under ADA. This interpretation meant that people with mental illness, epilepsy, hearing loss, amputations, diabetes and many other conditions could be denied ADA protections.

Further, there was much confusion about the term "substantially limits" in the definition of disability in ADA. It could be construed narrowly or broadly - and businesses in particular did not like feeling "in the dark" as to who fit this part of the "disability" definition.

In addition, some courts had said that if a person is applying for or drawing SSDI or SSI, they couldn't claim employment discrimination under ADA Title I because they were admitting they were too disabled to work in the first place.

The ADA Amendments:

• Finds that EEOC Title I rules which define “substantially limits” as “significantly restricts” are inconsistent with congressional intent by establishing too high a standard.
• Expands the definition of “major life activity” to include, in addition to activities like seeing, hearing, walking, etc., bodily systems such as endocrine, pulmonary, cardiac, neurological, etc.
• Directs the construction of definitions in ADA to be based on Congressional intent as expressed in the Amendments.
• Clarifies prong 3 of the disability definition - "persons regarded as having a disability" - to mean if a person is subjected to discrimination based on an impairment or a presumption that a person has an impairment, then the person is covered by ADA.
  Excludes transitory or minor impairments from the definition of disability under ADA.
• Directs broad interpretation of the definition of disability and also the term "substantially limits,” as indicated in the findings stated at the beginning of the Amendments.
• Specifies that an impairment that substantially limits one major life activity need not limit any other major life activities in order for the person to qualify as disabled.
• States that the determination of a disability shall be made without regard to ameliorative measures - the mitigation piece. It gives examples of ameliorative measures. This corrects the Supreme Court rulings that denied people ADA coverage if they use medicine, technology or other means to treat their disabling conditions.
• Specifically states that the ameliorative effects of ordinary eyeglasses or contacts which are intended to fully correct a person’s eyesight shall be considered when determining if a person’s impairment substantially limits a major life activity.
• A distinction is made for low vision aids, which are to be considered differently from ordinary eyeglasses, and which unlike ordinary eyeglasses, cannot be used to exclude a person from ADA coverage.
• The definition of auxiliary aids is further defined and now specifically includes interpreters, readers, taped texts and other methods of making communications and information accessible.
• Wording is amended to make the occurrence of discrimination based on disability the pivotal criteria for eligibility for ADA protection. This is a subtle change which should have a major impact. Courts have said the existing law makes them focus first on whether the person has a covered disability, and they have continued to narrow that definition. Now a person’s coverage under ADA will hinge on whether they were subjected to discrimination based on disability.
• Regarding job or other qualifications based on eyesight: Specifically states “a covered entity shall NOT use qualification standards, employment tests or other selection criteria based on a person’s uncorrected vision unless these criteria can be proven to be job-related and consistent with business necessity.
• Amended language emphasizes the requirement for reasonable modifications in policies, practices or procedures to accommodate a person with a disability, and specifies this includes making modifications to academic requirements in postsecondary education - unless doing so would fundamentally alter the service, goods, etc.

When S. 3406 passed the Senate, it had 77 cosponsors. Oklahoma Senator James Inhofe was among them. Senator Tom Coburn was not.

All Oklahoma Representatives voted for the ADA legislation when it first passed the House.