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NCIL Testimony on the ADA
Restoration Act of 2007
The following testimony, excerpted below, was presented to the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties on October 4th, 2007. You can read the entire testimony in full at www.ncil.org, at the ADA Restoration Act Action Hub. You may use the following text as background and talking points on the issues surrounding ADA Restoration. If you have questions or would like further information, please contact Deb Cotter at deb@ncil.org. “A key part of our work is to implement the integration mandate of the Americans with Disabi- lities Act by moving people with disabilities out of institutions and into community-based settings so they can control their own destinies and live independently. NCIL also works tirelessly to ensure that the Americans with Disabilities Act and other crucial civil rights laws are not only fully implemented, but also enforced. Issues: …as you will hear today from National Council on Disability Executive Director Michael Collins, NCD documented in its “Righting the ADA” report, a series of flawed Supreme Court decisions have seriously undermined our ability to realize the full promise of the ADA. In Sutton v. United Airlines, and Toyota v. Williams, the Supreme Court has taken to interpreting the definition of disability in a restrictive manner that Congress never envisioned, placing the burden on persons with disabilities to prove that they are entitled to the ADA’s protections – particularly in the employment sphere. This creates a Catch-22 in which employees can be discriminated against on the basis of their disability but unable to enforce their rights because they cannot meet the high threshold the courts have set to prove they are disabled. Furthermore, in University of Alabama v. Garrett, the Supreme Court ruled 5-4 that the 11th Amendment prohibits suits in federal court by state employees to recover money damages under Title I of the ADA. The Supreme Court’s restrictive approach to the ADA in employment cases is especially disconcerting since the unemployment of persons with disabilities wishing to work remains widespread. Proper implementation of the original intent of the ADA in the employment sphere is critical to the economic self-sufficiency and full societal participation of people with disabilities that is at the core of the Independent Living (IL) movement. The fact that only 7% of persons with disabilities own their own homes and roughly 30% of Americans with disabilities are employed is a reflection of the continued inability of persons with disabilities to enforce their right to non- discrimination in the workplace under the ADA Issues Raised by the U.S. Chamber of Commerce: The U.S. Chamber of Commerce claims that H.R. 3195 ensures that protections on the basis of disability apply broadly. This is correct. The Supreme Court did not understand that significant disability as defined by the Americans with Disabilities Act includes people with intellectual disabilities (formerly known as Mental Retardation), epilepsy, diabetes, cancer, and mental illnesses, among others. For a person who merely has poor vision that is correctible, he or she may indeed be considered disabled by a court. The question is not whether a person with a disability has a disability or is regarded as a person with a disability. The question is whether or not the person has been discriminated against on the basis of disability. The intent of H.R. 3195 is to prevent discrimination on the basis of disability, not to create a protected class. The Chamber of Commerce also alleges that “H.R. 3195 would reverse the long-standing rule that allows employers to determine what the essential functions of a job are, allowing plaintiffs to second-guess routine job decisions that employers must make every day.” There is no such language in H.R. 3195 to this effect. The problem with the Supreme Court’s and lower courts’ decisions referenced in HR 3195’s “Findings and Purposes” is that they have not even considered whether there has been discrimination based on disability. Therefore, the courts ruled that the plaintiff was either not disabled or not disabled enough to be protected by the ADA. Had the courts properly reviewed these cases, they would have decided them on the basis of whether the plaintiff was qualified to perform the essential functions of the job with or without reasonable accommodation. The real problem in the Chamber of Commerce’s August 22 letter to the U.S. House of Representatives is not their fallacious reasoning, but the blatant prejudice it exhibits against Americans with disabilities. NCIL has members in all but five Congressional Districts. Our experience working with businesses in communities across the country over three decades shows that the majority of businesses are more open minded than the board and staff of the Chamber of Commerce. NCIL supports:
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