March 20, 2008
In Iowa's Interest: Protecting the Rights of Iowans with Disabilities
By Senator Tom Harkin
Americans are asked to observe Deaf History Month from mid-March to mid-April, giving each of us a chance to reflect on historic deaf leaders such as Thomas Gallaudet and Laurent Clerc. It is also a time when I am reminded of my late brother Frank who was deaf since childhood. Because of him, I know firsthand the challenges that face Americans with disabilities. It is one of the reasons that I was the chief sponsor of the Americans with Disabilities Act (ADA) in 1990.
The ADA was then, and continues to be, one of the landmark civil rights laws of the 20th century -- a long-overdue emancipation proclamation for thousands of Iowans and millions of Americans with disabilities. As chief sponsor of the ADA in the U.S. Senate, I take pride in the progress we have made as a nation since it became law.
In many ways, the ADA has been a great success, and has helped integrate people with disabilities into every facet of our society. However, this law – which passed with overwhelming bipartisan support and was signed by President George H.W. Bush, has been significantly narrowed by the courts, contrary to the intent of Congress.
Today, people with conditions that are clearly disabilities, are being told by courts that they are not in fact disabled and are not protected under the ADA. For instance, courts have ruled that conditions including amputation, mental retardation, epilepsy, multiple sclerosis, diabetes, muscular dystrophy, and cancer are not disabilities. These situations mostly arise in employment cases, where the disabled employee is asking for a reasonable accommodation in the workplace.
This problem is the result of a series of Supreme Court decisions holding first, that mitigating measures –such as medication, prosthetics, or other assistive devices – must be considered in determining whether a person has a disability under the ADA, and second, that a demanding standard must be applied to determining whether an individual meets the current requirement of being “substantially limited” in a “major life activity”. As a consequence, millions of people we intended to protect under the ADA are no longer protected.
Together, these Supreme Court cases have created a supreme absurdity: the more successful a person is at coping with a disability, the more likely it is for a court to decide they are not entitled to an accommodation because the disability no longer “substantially limits major life activities.” Thus, an employer may fire a person for being disabled, and then argue that they cannot be sued because the person isn’t disabled enough to be protected by the ADA.
I can tell you with certainty that this is not what Congress intended when we passed the ADA. Congress intended that the protections in the ADA apply to all persons with disabilities without regard to mitigating circumstances. And yet, the Supreme Court chose to ignore our original intent. That’s why we need a legislative fix to restore the original promise of the law.
I introduced the ADA Restoration Act last year to restore Congress’s original intent, by clarifying that anyone with an impairment, regardless of the use of mitigating measures, is entitled to seek reasonable accommodations in the workplace, and has the opportunity to show that he or she has been discriminated against on the basis of a disability. The bill makes no changes to the underlying statutory requirements that a person with a disability have the necessary qualifications for the job and be able to perform the essential functions of the position with reasonable accommodations.
As we commemorate pioneers in the deaf community and all those who have fought for people with disabilities over the coming weeks, we can not forget that the fight is not over. Be assured that I will continue to work in Washington to make sure that all Iowans with disabilities are protected under the law.