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ADA Amendments Pass in Both Houses of Congress!!

David Spivak — Sat, 20 Sep 2008 01:46:00 GMT

On September 17, 2008, the Americans with Disabilities Act Amendments - a bill to restore the intent and protections of the Americans with Disabilities Act of 1990 - passed in both Houses of Congress.The text of the legislation is presented below.

___________________________

S.3406

One Hundred Tenth Congress

of the

United States of America

AT THE SECOND SESSION

Begun and held at the City of Washington on Thursday,

the third day of January, two thousand and eight

An Act

To restore the intent and protections of the Americans with Disabilities Act of 1990.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `ADA Amendments Act of 2008'. SEC. 2. FINDINGS AND PURPOSES.

(a) Findings- Congress finds that--

(1) in enacting the Americans with Disabilities Act of 1990 (ADA), Congress intended that the Act `provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities' and provide broad coverage;

(2) in enacting the ADA, Congress recognized that physical and mental disabilities in no way diminish a person's right to fully participate in all aspects of society, but that people with physical or mental disabilities are frequently precluded from doing so because of prejudice, antiquated attitudes, or the failure to remove societal and institutional barriers;

(3) while Congress expected that the definition of disability under the ADA would be interpreted consistently with how courts had applied the definition of a handicapped individual under the Rehabilitation Act of 1973, that expectation has not been fulfilled;

(4) the holdings of the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases have narrowed the broad scope of protection intended to be afforded by the ADA, thus eliminating protection for many individuals whom Congress intended to protect;

(5) the holding of the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) further narrowed the broad scope of protection intended to be afforded by the ADA;

(6) as a result of these Supreme Court cases, lower courts have incorrectly found in individual cases that people with a range of substantially limiting impairments are not people with disabilities;

(7) in particular, the Supreme Court, in the case of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), interpreted the term `substantially limits' to require a greater degree of limitation than was intended by Congress; and

(8) Congress finds that the current Equal Employment Opportunity Commission ADA regulations defining the term `substantially limits' as `significantly restricted' are inconsistent with congressional intent, by expressing too high a standard.

(b) Purposes- The purposes of this Act are--

(1) to carry out the ADA's objectives of providing `a clear and comprehensive national mandate for the elimination of discrimination' and `clear, strong, consistent, enforceable standards addressing discrimination' by reinstating a broad scope of protection to be available under the ADA;

(2) to reject the requirement enunciated by the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures;

(3) to reject the Supreme Court's reasoning in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) with regard to coverage under the third prong of the definition of disability and to reinstate the reasoning of the Supreme Court in School Board of Nassau County v. Arline, 480 U.S. 273 (1987) which set forth a broad view of the third prong of the definition of handicap under the Rehabilitation Act of 1973;

(4) to reject the standards enunciated by the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), that the terms `substantially' and `major' in the definition of disability under the ADA `need to be interpreted strictly to create a demanding standard for qualifying as disabled,' and that to be substantially limited in performing a major life activity under the ADA `an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives';

(5) to convey congressional intent that the standard created by the Supreme Court in the case of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) for `substantially limits', and applied by lower courts in numerous decisions, has created an inappropriately high level of limitation necessary to obtain coverage under the ADA, to convey that it is the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis; and

(6) to express Congress' expectation that the Equal Employment Opportunity Commission will revise that portion of its current regulations that defines the term `substantially limits' as `significantly restricted' to be consistent with this Act, including the amendments made by this Act.

SEC. 3. CODIFIED FINDINGS.

Section 2(a) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12101) is amended--

(1) by amending paragraph (1) to read as follows:

`(1) physical or mental disabilities in no way diminish a person's right to fully participate in all aspects of society, yet many people with physical or mental disabilities have been precluded from doing so because of discrimination; others who have a record of a disability or are regarded as having a disability also have been subjected to discrimination;';

(2) by striking paragraph (7); and

(3) by redesignating paragraphs (8) and (9) as paragraphs (7) and (8), respectively.

SEC. 4. DISABILITY DEFINED AND RULES OF CONSTRUCTION.

(a) Definition of Disability- Section 3 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12102) is amended to read as follows: `SEC. 3. DEFINITION OF DISABILITY.

`As used in this Act:

`(1) DISABILITY- The term `disability' means, with respect to an individual--

`(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;

`(B) a record of such an impairment; or

`(C) being regarded as having such an impairment (as described in paragraph (3)).

`(2) MAJOR LIFE ACTIVITIES-

`(A) IN GENERAL- For purposes of paragraph (1), major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

`(B) MAJOR BODILY FUNCTIONS- For purposes of paragraph (1), a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

`(3) REGARDED AS HAVING SUCH AN IMPAIRMENT- For purposes of paragraph (1)(C):

`(A) An individual meets the requirement of `being regarded as having such an impairment' if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.

`(B) Paragraph (1)(C) shall not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.

`(4) RULES OF CONSTRUCTION REGARDING THE DEFINITION OF DISABILITY- The definition of `disability' in paragraph (1) shall be construed in accordance with the following:

`(A) The definition of disability in this Act shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act.

`(B) The term `substantially limits' shall be interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008.

`(C) An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.

`(D) An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

`(E)(i) The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as--

`(I) medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies;

`(II) use of assistive technology;

`(III) reasonable accommodations or auxiliary aids or services; or

`(IV) learned behavioral or adaptive neurological modifications.

`(ii) The ameliorative effects of the mitigating measures of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity.

`(iii) As used in this subparagraph--

`(I) the term `ordinary eyeglasses or contact lenses' means lenses that are intended to fully correct visual acuity or eliminate refractive error; and

`(II) the term `low-vision devices' means devices that magnify, enhance, or otherwise augment a visual image.'.

(b) Conforming Amendment- The Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) is further amended by adding after section 3 the following: `SEC. 4. ADDITIONAL DEFINITIONS.

`As used in this Act:

`(1) AUXILIARY AIDS AND SERVICES- The term `auxiliary aids and services' includes--

`(A) qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments;

`(B) qualified readers, taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments;

`(C) acquisition or modification of equipment or devices; and

`(D) other similar services and actions.

`(2) STATE- The term `State' means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin Islands of the United States, the Trust Territory of the Pacific Islands, and the Commonwealth of the Northern Mariana Islands.'.

(c) Amendment to the Table of Contents- The table of contents contained in section 1(b) of the Americans with Disabilities Act of 1990 is amended by striking the item relating to section 3 and inserting the following items:

`Sec. 3. Definition of disability.

`Sec. 4. Additional definitions.'.

SEC. 5. DISCRIMINATION ON THE BASIS OF DISABILITY.

(a) On the Basis of Disability- Section 102 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12112) is amended--

(1) in subsection (a), by striking `with a disability because of the disability of such individual' and inserting `on the basis of disability'; and

(2) in subsection (b) in the matter preceding paragraph (1), by striking `discriminate' and inserting `discriminate against a qualified individual on the basis of disability'.

(b) Qualification Standards and Tests Related to Uncorrected Vision- Section 103 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12113) is amended by redesignating subsections (c) and (d) as subsections (d) and (e), respectively, and inserting after subsection (b) the following new subsection:

`(c) Qualification Standards and Tests Related to Uncorrected Vision- Notwithstanding section 3(4)(E)(ii), a covered entity shall not use qualification standards, employment tests, or other selection criteria based on an individual's uncorrected vision unless the standard, test, or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and consistent with business necessity.'.

(1) Section 101(8) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111(8)) is amended--

(A) in the paragraph heading, by striking `WITH A DISABILITY'; and

(B) by striking `with a disability' after `individual' both places it appears.

(2) Section 104(a) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12114(a)) is amended by striking `the term `qualified individual with a disability' shall' and inserting `a qualified individual with a disability shall'.

SEC. 6. RULES OF CONSTRUCTION.

(a) Title V of the Americans with Disabilities Act of 1990 (42 U.S.C. 12201 et seq.) is amended--

(1) by adding at the end of section 501 the following:

`(e) Benefits Under State Worker's Compensation Laws- Nothing in this Act alters the standards for determining eligibility for benefits under State worker's compensation laws or under State and Federal disability benefit programs.

`(f) Fundamental Alteration- Nothing in this Act alters the provision of section 302(b)(2)(A)(ii), specifying that reasonable modifications in policies, practices, or procedures shall be required, unless an entity can demonstrate that making such modifications in policies, practices, or procedures, including academic requirements in postsecondary education, would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations involved.

`(g) Claims of No Disability- Nothing in this Act shall provide the basis for a claim by an individual without a disability that the individual was subject to discrimination because of the individual's lack of disability.

`(h) Reasonable Accommodations and Modifications- A covered entity under title I, a public entity under title II, and any person who owns, leases (or leases to), or operates a place of public accommodation under title III, need not provide a reasonable accommodation or a reasonable modification to policies, practices, or procedures to an individual who meets the definition of disability in section 3(1) solely under subparagraph (C) of such section.';

(2) by redesignating section 506 through 514 as sections 507 through 515, respectively, and adding after section 505 the following:

`SEC. 506. RULE OF CONSTRUCTION REGARDING REGULATORY AUTHORITY.

`The authority to issue regulations granted to the Equal Employment Opportunity Commission, the Attorney General, and the Secretary of Transportation under this Act includes the authority to issue regulations implementing the definitions of disability in section 3 (including rules of construction) and the definitions in section 4, consistent with the ADA Amendments Act of 2008.'; and

(3) in section 511 (as redesignated by paragraph (2)) (42 U.S.C. 12211), in subsection (c), by striking `511(b)(3)' and inserting `512(b)(3)'.

(b) The table of contents contained in section 1(b) of the Americans with Disabilities Act of 1990 is amended by redesignating the items relating to sections 506 through 514 as the items relating to sections 507 through 515, respectively, and by inserting after the item relating to section 505 the following new item:

`Sec. 506. Rule of construction regarding regulatory authority.'.

SEC. 7. CONFORMING AMENDMENTS.

Section 7 of the Rehabilitation Act of 1973 (29 U.S.C. 705) is amended--

(1) in paragraph (9)(B), by striking `a physical' and all that follows through `major life activities', and inserting `the meaning given it in section 3 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12102)'; and

(2) in paragraph (20)(B), by striking `any person who' and all that follows through the period at the end, and inserting `any person who has a disability as defined in section 3 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12102).'.

SEC. 8. EFFECTIVE DATE.

This Act and the amendments made by this Act shall become effective on January 1, 2009.

Speaker of the House of Representatives.

Vice President of the United States and

President of the Senate.

The ADA Amendments Pass Uninaimously in the Senate

David Spivak — Sat, 20 Sep 2008 00:40:00 GMT

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On September 11, 2008, the Senate passed the amendments to the Americans With DIsabilities Act by unanimous consent. The amendments will improve the law for disabled employees in a number of important ways, and its supporters feel that it achieves the greatest legislative gains possible for disabled employees while maintaining remarkable bipartisan support. Senators Tom Harkin (D-IA) and Orrin Hatch (R-UT), the key negotiators on the bill, talked at length about how important it is for Americans with disabilities to be free of invidious employment discrimination.

Disabled in one job may not mean disabled in another

David Spivak — Wed, 17 Sep 2008 23:04:00 GMT

Many disabled workers must take time off from work under the Family Medical Leave Act (FMLA), or, if in California, under the California Family Rights Act (CFRA). Such leave is available to workers for a "serious health condition." It is illegal for an employer to fire a worker for taking such leave. If a worker is fired for taking such leave, she may sue for retaliation in court. To prevail on such a lawsuit, the worker must prove she suffered from a "serious health condition" at the time the leave was sought or taken. A “serious health condition” is one which renders the worker unable to work at all or unable to perform one or more of the "essential functions" of her position.

What are “essential functions”? The “essential functions” of a job are those duties and responsibilities that the individual who holds the position must be able to perform, with or without the assistance of a reasonable accommodation. Marginal functions of the positions are excluded. Whether a particular job function is essential is determined on a case-by-case basis, by considering the nature of both the particular work and the particular workplace. In approaching this inquiry, “consideration shall be given to the employer's judgment as to what functions of the job are essential.” Relevant factors in determining a position's “essential functions” include: (1) Whether the employer currently requires all employees in the position to perform the functions that the employer states are “essential”; (2) Whether removal of functions currently required would “fundamentally alter” the position's nature, which in turn depends on whether the position exists to perform a particular function, whether the number of other employees among whom the job function may be distributed is limited; and whether the position is highly specialized and requires an employee with certain expertise or skill; and (3) Whether the duty in question could easily be redistributed (delegated) to other employees; if so, this fact suggests (but does not prove) that the function is “marginal” and not “essential.” Regular attendance and punctuality, ability to get along with supervisors and coworkers, ability to handle normal workplace stress, and ability to follow supervisor's directions may be essential functions of a job.

Many workers have two jobs at the same time for which they are employed part time. The essential functions of one of the jobs may be different from the essential functions of the other. Therefore, a worker's serious health condition may make it impossible to perform the essential functions of one job while not interfering with the essential functions of the other. In Lonicki v. Sutter Health Care, the California Supreme Court considered this circumstance.

Here are the facts of Lonicki. The plaintiff worked for Sutter Health (the eefendant) as a technician at one of its hospitals. At one point her supervisor changed her schedule and increased her workload so much that Lonicki became upset and informed her supervisor she could not work due to the stress caused, in part, by the change in schedule. Lonicki than took one month off for “FMLA leave.” The employer approved Lonicki’s request and designated the time off as FMLA/CFRA leave. HOWEVER, WHILE ON LEAVE, Lonicki continued to work part-time for Kaiser – ANOTHER EMPLOYER - performing basically the same kind of work. The defendant asked the judge to dismiss the case, arguing that the plaintiff could not truly have had a “serious health condition” if she was able to keep working for the other employer.

The California supreme court decided that the plaintiff’s continued employment at Kaiser did not necessarily mean that she did not have a “serious health condition” with respect to her duties at the hospital. The Court said that the key question in such a case where an employee keeps working while on leave is whether her medical condition (stress) precluded her from performing the essential functions of her position at the defendant, not from performing the duties of any position for any employer. Federal cases have basically said the same thing: A showing that an employee is unable to work in the employee's current job due to a serious health condition is enough to demonstrate incapacity. The fact that an employee is working for a second employer does not mean he or she is not incapacitated from working in his or her current job.HOWEVER, the Supreme Court also cautioned that the plaintiff’s ability to continue working for Kaiser was “strong evidence” of her ability to perform her duties for the defendant

In view of this court case, an employee may take medical leave away from one job to accommodate a disability or serious health condition while continuing to work for a different employer so long as the second job does not have duties that the employee is unable to perform in the job she seeks leave from.

No disability discrimination if the guy who fired you didn't know you were disabled

David Spivak — Fri, 12 Sep 2008 05:34:00 GMT

It probably goes without saying, but I'll say it anyway. If you are fired by someone who did not know of your disability, it will be diificult (if not impossible) to prove that you were a victim of disability discrimination...unless you can prove that he was influenced by someone who did. In the August 11, 2008 decision of Avila v. Continental Airlines, a California appellate court upheld a trial court's decision to to dismiss a disability discrimination case where the plaintiff failed to provide evidence that the ontinental employees who made the decision to discharge him knew of his alleged disability at the time they made hat decision.

A California employer must provide you with a reasonable accommodation of your disability...whether he likes it or not!

David Spivak — Thu, 11 Sep 2008 06:38:00 GMT

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The California Fair Employment and Housing Act requires employers to provide reasonable accommodations to disabled employees and applicants for employment to enable them to perform the essential functions of their positions. If the employer knows its employee has a disability, it is required to provide the accommodation even if the employee does not request it.

Reasonable accommodations can include making facilities accessible to and usable by disabled individuals, job restructuring, offering part time or modified work schedules, reassigning to a vacant position, acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials or policies, providing qualified readers or interpreters, reassignment to a vacant position, paid or unpaid leave of absences, alcohol or drug rehabilitation programs, and other similar accommodations. Courts in California look to cases decided under the federal Americans With Disabilities Act and the Rehabilitation Act to to determine whether other accommodations may be reasonable.

The California Supreme Court has determined that employers may decline employment to applicants who use marijuana for medical purposes (see Compassionate Use Act of 1996).

If an employee seeks an accommodation from his employer, they must engage in a timely, good-faith "interactive process" to select an appropriate accommodation. The employer has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the one which is easier for it to provide.

An employer may defend against a "failure to accommodate" claim with proof that the accommodation is an undue hardship on the employer, the accommodation sought is unreasonable.

You can be sued if you harass a disabled coworker in California

David Spivak — Thu, 11 Sep 2008 06:31:00 GMT

Under the California Fair Employment and Housing Act, it is an unlawful employment practice for an employer (or any other person) to harass employees or applicants because of their medical condition, physical disability or mental disability. An employer strictly liable for harassment by the aggrieved employee's direct supervisor or any other manager. As for harassment by other coworkers or employees, the employer is liable only if it (or its agents or supervisor) knew or should have known of this conduct and failed to take immediate and appropriate corrective action. Supervisors or coworkers may be held personally liable for harassing another employee regardless of whether the employer was aware of their conduct.

It is a wrongful termination in california for your employer to fire you because of your disability

David Spivak — Thu, 11 Sep 2008 06:23:00 GMT

The public policies underlying the California Fair Employment and Housing Act permit a person who is fired from her job because of her disability to sue her employer for wrongful termination in violation of public policy. Only employers of 5 or more persons are subject to this tort.

A claim of wrongful termination may be filed in a California State Superior Court (a trial court) and tried before a jury. A victim of a wrongful termination can recover compensatory damages (consisting of lost wages and damages for emotional distress), punitive damages, and court costs.

Claims of wrongful termination are often brought with claims of disability discrimination. However, unlike disability discrimination claims, a victim of wrongful termination in violation of public policy need not complain to the California Department of Fair Employment and Housing before filing a lawsuit.

The statute of limitations for a claim of wrongful termination is two years.

Disability discrimination in California

David Spivak — Thu, 11 Sep 2008 06:18:00 GMT

Under the California Fair Employment and Housing Act, a victim of disability discrimination in the workplace may sue her employer in a California State Superior Court after obtaining a right-to-sue notice from the California Department of Fair Employment and Housing. However, employers may terminate or refuse employment to individuals who are unable to perform their essential duties with reasonable accommodations or who would be a danger to themselves or coworkers. An employer may inquire into a job applicant's ability to perform job-related functions. An employer may request information regarding an applicant's physical fitness, medical condition and medical history if related to job duties or health and safety at work. After a job offer is made, the employer may require the employee to answer medical or psychological inquiries and submit to medical or psychological examination if the employer similarly requires its other employees to do so and the examination relates to job duties. Preemployment medical examination results and inquiry answers must be kept confidential.

An employer may not ask an applicant for employer whether he is disabled, whether he had been treated for any diseases or conditions (unless job related) or whether he has ever received workers' compensation.

To obtain a right-to-sue notice, a person must make a complaint to the California Department of Fair Employment and Housing within one year of the discriminatory act. The discrimination victim may either request that the Department investigate the complaint or issue an immediate right-to-sue notice. Such notices may be obtained online through this link.

While a victim of disability discrimination may sue his employer, he may not sue an individual supervisor or coworker for the discrimination.

An employer may defend against a "disability discrimination" claim with proof that it denied a job to a disabled person because of a "bona fide occupational qualification" (BFOQ), a practice that on its face excludes an entire class or group of persons. It may also defend such a claim that denying/terminating employment was a business necessity or a threat to health and safety.

Some disabilities which are protected in California

David Spivak — Thu, 11 Sep 2008 06:08:00 GMT

Disability Discrimination Under the California Fair Employment and Housing Act, a victim of disability discrimination in the workplace may sue her employer in a California State Superior Court after obtaining a right-to-sue notice from the California Department of Fair Employment and Housing. However, employers may terminate or refuse employment to individuals who are unable to perform their essential duties with reasonable accommodations or who would be a danger to themselves or coworkers. An employer may inquire into a job applicant's ability to perform job-related functions. An employer may request information regarding an applicant's physical fitness, medical condition and medical history if related to job duties or health and safety at work. After a job offer is made, the employer may require the employee to answer medical or psychological inquiries and submit to medical or psychological examination if the employer similarly requires its other employees to do so and the examination relates to job duties. Preemployment medical examination results and inquiry answers must be kept confidential. An employer may not ask an applicant for employer whether he is disabled, whether he had been treated for any diseases or conditions (unless job related) or whether he has ever received workers' compensation. To obtain a right-to-sue notice, a person must make a complaint to the California Department of Fair Employment and Housing within one year of the discriminatory act. The discrimination victim may either request that the Department investigate the complaint or issue an immediate right-to-sue notice. Such notices may be obtained online through this link. While a victim of disability discrimination may sue his employer, he may not sue an individual supervisor or coworker for the discrimination. An employer may defend against a "disability discrimination" claim with proof that it denied a job to a disabled person because of a "bona fide occupational qualification" (BFOQ), a practice that on its face excludes an entire class or group of persons. It may also defend such a claim that denying/terminating employment was a business necessity or a threat to health and safety.

Both presidential candidates support the ADA Amendments Senate Bill

David Spivak — Fri, 05 Sep 2008 06:43:00 GMT

A review of the history of Senate Bill 3406 reveals that both Barack Obama and John McCain sponsorteh ADA Amendments Act of 2008, a bill intended to restore the intent and protections of the Americans with Disabilities Act of 1990.

Among other things, if the bill is passed, it will

(1) Amend the Americans with Disabilities Act of 1990 (ADA) to redefine the term "disability," including by defining "major life activities" and "being regarded as having such an impairment."

(2) Sets forth rules of construction regarding the definition of "disability," including that: (1) such term shall be construed in favor of broad coverage of individuals under the Act; (2) an impairment that substantially limits one major life activity need not limit other major life activities in order to be a disability; (3) an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active; and (4) the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of specified mitigating measures.

(3) Prohibit employment discrimination against a qualified individual on the basis of disability. (Current law prohibits employment discrimination against a qualified individual with a disability because of the disability.)

(4) Prohibit the use of qualification standards, employment tests, or other selection criteria based on an individual's uncorrected vision unless the standard, test, or other selection criteria, as used by the covered entity, is shown to be related to the position and is consistent with business necessity.

US House of Reps passes amendments to the Americans With Disabilities Act (ADA)

David Spivak — Fri, 05 Sep 2008 06:20:00 GMT

The Americans with Disabilities Act of 1990 was intended to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” The ADA has transformed our nation since its enactment, helping millions of Americans with disabilities succeed in the workplace, and making transportation, housing, buildings, services and other elements of daily life more accessible to individuals with disabilities. Just as other civil rights laws prohibit employers from basing decisions on characteristics like race or sex, Congress wanted the ADA to stop employers from making decisions based on disability. Unfortunately, since 1999, several U.S. Supreme Court decisions have narrowed the definition of disability so much that people with serious conditions such as epilepsy, muscular dystrophy, cancer, diabetes, and cerebral palsy have been determined to not have impairments that meet the definition of disability under the ADA. The result: In 2004, plaintiffs lost 97% of ADA employment discrimination claims, often due to the interpretation of definition of disability. People who are not hired or are fired because an employer mistakenly believes they cannot perform the job – or because the employer does not want “people like that” in the workplace – have been denied protection from employment discrimination due to these court decisions. This was not the intent of the ADA. The ADA Amendments Act of 2008, passed by the House on June 25, 2008 by a vote of 402-17: * Specifically rejects the erroneous Supreme Court decisions that have reduced the protections for people with disabilities under the ADA, restoring original Congressional intent. * Makes it absolutely clear that the ADA is intended to provide broad coverage to protect anyone who faces discrimination on the basis of disability. * Clarifies the definition of disability, including what it means to be “substantially limited in a major life activity.” * Prohibits the consideration of mitigating measures such as medication, prosthetics, and assistive technology, in determining whether an individual has a disability. * Provides coverage to people who experience discrimination based on a perception of impairment regardless of whether the individual experiences disability. * Is supported by a broad coalition of civil rights groups, disability advocates, and employer trade organizations.

Disability discrimination in the workplace is against the law in California.

David Spivak — Thu, 04 Sep 2008 03:47:00 GMT

The Americans With Disabilities Act (“ ADA ”) prohibits discrimination against persons with disabilities and requires that disabled individuals receive reasonable accommodations at work. Unfortunately, in recent years it has become very difficult for many individuals with disabilities to receive the protection of this law. In California , individuals with disabilities generally prefer to apply for the protections of the California Fair Employment and Housing Act which provides much broader protection to individuals with disabilities and medical conditions. The ADA can be found at Section 12101 of Title 42 of the United States Code. The California Fair Employment and Housing Act (FEHA) (California Government Code Sections 12900 et seq.) prohibits employment discrimination on the basis of physical disability, mental disability and medical condition. The Rehabilitation Act of 1973 (Title 29 of United States Code Sections 701 et seq.) protects federal employees from disability discrimination. It also prohibits disability discrimination against employees of programs receiving federal assistance.