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Bipartisan consensus on our human frailty: The ADA Amendments Act 10 years later
September 25, 2018 marks the tenth anniversary of the passage of the Americans with Disabilities Act Amendments Act of 2008, an underappreciated civil rights law that dramatically expanded the number of Americans covered by the Americans with Disabilities Act of 1990, which is commonly referred to as "the ADA."
Particularly in the current political climate, it is striking to note that this major expansion of civil rights law, which was the result of vigorous advocacy by the disability rights community and strong Democratic Party support, was signed into law by a Republican president, George W. Bush, with support from many Republicans in Congress. In signing the ADA Amendments Act into law, President Bush not only was acting on the "compassionate conservatism" slogan upon which he ran, he was extending the legacy of his father, President George H.W. Bush, who signed the original ADA into law eighteen years earlier, also with significant Republican support in Congress.
This level of Republican support for major civil rights legislation is particularly notable given that the ADA is a uniquely potent law. Unlike other anti-discrimination laws, the ADA does not simply prohibit discriminatory actions based on a legally-protected characteristic. The ADA also imposes obligations on businesses and governmental entities to take what is in a very real sense "affirmative action." In particular, the ADA requires "reasonable accommodation" for individuals with disabilities, including in employment and places of public accommodation such as retail stores, office buildings, sidewalks and movie theaters.
The essence of reasonable accommodation is that the disabled individual has a right to be treated differently - better, in some sense - than others who are similarly situated because, to have the same opportunity to succeed, the disabled individual may need something different.
In passing the ADA Amendments Act ten years ago this month, lawmakers rejected the narrow interpretation of the term "disability" that a conservative U.S. Supreme Court articulated in a series of decisions from the late 1990s and early 2000s. Those decisions, taken together, restricted the term disability - and therefore the number of people covered by the ADA - to include only substantial, long-term impairments that remain disabling even when treated by medication, prosthetics or other medical interventions. The Supreme Court's narrow interpretation ensured that numerous disability discrimination cases involving serious medical impairments including, in one infamous case, breast cancer that resulted in extensive chemotherapy with debilitating side effects, were dismissed on the grounds that the conditions were not considered disabilities.
The ADA Amendments Act expressly rejected those conservative Supreme Court decisions and clarified that the term disability under the ADA is to be broadly construed. Under the Amendments Act, impairments that are controlled by medication or other measures still are considered disabilities if, when considered without the mitigating measures, the impairment would substantially limit the individual's major life activities. So, for example, a diabetic employee whose condition is well-controlled by insulin is still disabled under the Amendment Act's expansion of the term and therefore entitled not only to be free from discrimination based on that condition, but also to receive reasonable accommodation. This means that the employer may have to, for example, allow that diabetic employee to have food at her work station despite the employer's general prohibition on eating at a workstation.
The Amendments Act and resulting regulations also clarified that the term disability may extend to cover many short-term or episodic conditions, like seizure disorders and migraine headaches, for example. The Amendments Act also made clear that many common health conditions that may not be visible, including heart conditions, cancer and diabetes, are disabilities. In addition, mental health conditions, including severe depression and Post Traumatic Stress Disorder, also are disabilities, as is Attention Deficit Hyperactivity Disorder under the Amendments Act regulations.
While it is difficult to estimate with certainty, the ADA Amendment Act's re-definition of the term disability likely resulted in the extension of ADA protections - including the right to reasonable accommodation - to at least half the U.S. population.
At the most basic level, the reasonable accommodation obligation prevents businesses and other covered institutions from acting solely based on a profit motive or stereotypic assumptions when dealing with an individual with a disability. In this sense, the ADA is a remarkably progressive piece of legislation that, post-Amendments Act, has an extremely broad reach. Under the law, an institution's perceived self-interest must yield to the broader societal goal of ensuring that individuals with disabilities - large and small - are afforded opportunities for employment and full engagement with civic and commercial life.
As part of the reasonable accommodation obligation, employers also must engage in a loosely defined "interactive process" with an employee who requests or appears to need an accommodation due to a physical or mental impairment. This means that an employer must at least participate in meaningful communication about possible modifications with a disabled employee who requests or obviously needs some accommodation. The interactive process requirement diminishes the employer's opportunity to reflexively refuse an employee's request for accommodation.
The willingness of many congressional Republicans to support the ADA more than 28 years ago, and to support its expansion ten years ago this month, was perhaps in part borne out of a recognition of our universal human frailty.
Regardless of political party, we all have a creeping sense that, if not now, at some point in our lives, we, and each of our loved ones, will struggle with a physical or mental impairment that may impact the ability to perform a job or to engage with civic and commercial life. And we all hope that, when that time comes, the institutions with which we all must interact - our employers, the stores in which we shop, the municipalities in which we live - will not shut us out.
In today's fractious political climate, this is an issue upon which, one hopes, the consensus still holds.
Paul Buchanan is an employment attorney and a partner at Buchanan Angeli Altschul & Sullivan in Portland, Oregon, who has worked on employment law and disability issues for more than 25 years. He advises large employers around the country on Americans with Disabilities Act compliance and other employment law issues. Follow him on Twitter @PaulCBuchanan