Winter 2008

• A Message from the Committee Chair:
  Carolyn Herbst
• Congress introduces Americans with Disabilities Restoration Act
• NYSUT Comes to the Aid of Student Disability Awareness Newsletter
• New York Amends Human Rights Law
• Music Lovers Rejoice!
• A Message from
  UFT Liaison: Eugene Rubin
• 

Legal Issues:

Congress introduces Americans with
Disabilities Restoration Act

“Stephen Orr was a pharmacist at a Wal-Mart store in Chadron, Neb., until he was fired for taking lunch breaks to eat and manage his diabetes. After Stephen lost his job, he decided to challenge his firing and filed a claim against Wal-Mart under the Americans with Disabilities Act. Wal-Mart responded that Stephen did not have a “disability” because he was able to manage his diabetes with insulin and diet. The court agreed. Because the Supreme Court has directed courts to consider “mitigating measures” (such as medications, prosthetics, diet and exercise, or any other treatment) in deciding whether an individual has a disability, the courts found that Stephen did so well managing his condition that he was not disabled enough to be protected by the ADA. Wal-Mart’s refusal to allow Stephen to take a lunch break was never questioned.”— American Diabetes Association (read more at www.diabetes.org)

To overcome such injustices, the Americans with Disabilities Restoration Act of 2007 was introduced in the House (H.R. 3195) and the Senate (S.1881) on July 26, 2007. Its objectives are to protect the civil rights of people with disabilities and restore the law — the Americans with Disabilities Act (ADA) — to its original objectives.

The need for this bill evolved from recent Supreme Court and lower court decisions that have restricted the rights of people with disabilities. A number of disability advocacy organizations and the National Council on Disabilities, a federal agency supporting the rights of people with disabilities, are endorsing this legislation that is backed by a bipartisan group of congressional members.

The bill was introduced in the House by Majority Leader Steny H. Hoyer (D-Md.) with co-sponsor James Sensenbrenner (R-Wisc.). In the Senate, it was introduced by Sen. Tom Harkin (D-Iowa) who crafted the original ADA legislation 17 years ago, and is co-sponsored by Sen. Arlen Specter (R-Pa.).

The legislation would restore the original intent of the ADA by protecting all persons with disabilities without regard to the use of “mitigating measures,” such as medication, or the use of assistive devices. It would define the term “mitigating measures,” which is presently not defined in the ADA or in Equal Employment Opportunity Commission regulations. The definition of “disability” would be amended to protect persons with disabilities who Congress originally intended to protect in the ADA by redefining such terms as “physical impairment” or “mental impairment” that figure in the definition of disability. Also, it would coordinate the ADA with other civil rights laws by outlawing discrimination “on the basis of disability.” Courts would be directed to interpret the provisions of the ADA broadly to further the law’s corrective purpose.

The Americans with Disabilities Act, truly landmark legislation, was passed in 1990 in order to protect people with disabilities from discrimination. Unfortunately, recent Supreme Court decisions, many of which have been discussed in previous newsletters, have narrowed the protections under the ADA for people with disabilities, especially in the area of employment.

The National Council on Disability, which proposed the original ADA legislation, has just completed a two-year study of 19 Supreme Court cases interpreting this law. The study shows that most of the highest court’s rulings deviated substantially from the original intent of the ADA. These cases result in “unfair outcomes that sanction, rather than remedy, even the most egregious employment discrimination against people with disabilities,” the study says. The lower federal courts have followed the Supreme Court’s lead, thus prompting employers to refuse to hire or accommodate a person with a disability and then arguing that the person does not have a disability. According to the National Council on Disability, the employment provisions of the ADA essentially have been rewritten by the Supreme Court, so that opportunities and protections intended in the original ADA are no longer provided.

Contact your representatives in Congress to urge passage of the ADA Restoration Act of 2007.

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Carolyn Herbst, Committee Chairperson • Abbe Nosoff, Editor/Writer • Eugene Rubin, UFT Committee Liaison