Monday, October 27, 2008
We have had one of the better threads in recent memory on the empdiscr listserv last week concerning the intent and meaning of certain sections of the newly-enacted ADA Amendments Act of 2008 (ADAAA).
The discussion begun with a question by George Rutherglen (Virginia) about what happens to the myopic Sutton sisters in the Sutton v. United Airlines case in light of the new provisions in ADAAA. Chai Feldblum (Georgetown) who was one of the negotiators of the language was gracious enough to allow me to reprint her response here:
Btw, my plan is to post on www.archiveADA.org a number of the original materials from the negotiation that I consider to be “public” documents because they were circulated to about 100 folks (disability and business) during the course of the negotiations. There were three deals that were made between April 2008 and May 2008, two of which fell apart (one because of rejection primarily by the business community and one because of rejection primarily from the grassroots disability community) and then the final third one which stuck — and which is essentially the law that you have before you today (albeit with a few modifications made in the Senate.)
But first — to the issue under discussion:
Within the second month of the negotiation (the negotiations started in February 2008), we had come to an agreement with the business community on the following three points with regard to overturning the Sutton decision:
1) They agreed that the Supreme Court had gone too far in ruling that mitigating measures should not be taken into account in determining whether an impairment [substantially] limited a [major] life activity. For example, in March, we were playing with language along the following lines:
MITIGATING MEASURES NOT CONSIDERED -- In determining whether an individual has a disability, as defined in (2)(A), such determination shall be made without regard to the ameliorative effect of mitigating measures such as medication, use of medical supplies, equipment or appliances, auxiliary aids and services, [prosthetic devices], [reasonable accommodations], learned behavioral modifications, or the body’s own systems.
(I put “substantially” and “major” in quotation marks because we left to a later stage in the negotiation what we were going to do with the level of severity required for prong one.)
2) In order for this type of provision to even be considered by the business negotiators, however, they had to have the assurance that eyeglasses and contact lenses would be considered mitigating measures — so they could tell the folks they represented that “people with eyeglasses would not be covered under the ADA.”
3) We (the disability negotiators) did not particularly feel, as a policy matter, that people with eyeglasses needed protection under the ADA. We did feel, however, that employers should not be permitted to do what United did — i.e., have an exclusionary qualification standard that they were never required to justify. The business negotiators, from their end, agreed with us that employers should be required to justify a qualification standard that required uncorrected vision. (And they agreed to this primarily because most employers don’t have such qualification standards.)
With these three principles agreed to, we developed the language that you have before you.
We wrote a provision stating that mitigating measures were not to be taken into account; a second provision that said ordinary eyeglasses and contact lenses were to be taken into account (and actually, spent a bunch of hours on the definition of ordinary eyeglasses with the NFB and AFB lawyers); and finally, a third provision that created the obligation on employers to justify any exclusionary qualification standard based on uncorrected vision.
Jennifer Mathis from the Bazelon Center and I spent a bit of time worrying about whether someone would have standing to require the justification of such an exclusionary standard (since they were not otherwise a person with a disability) -- but decided at the end that they would given how we had phrased the provision. (I’m happy to hear reaction to that! . . .) (Btw, Jennifer and I were the lead disability negotiators; Kevin Barry, the Teaching Fellow at my Clinic at the time, was our awesome young lawyer researcher, together with our students; and we checked in with seasoned lawyers such as Sam Bagenstos on a regular basis . . .)
We did not even consider whether such a person might also be covered under the “regarded as” prong — since we were nowhere near negotiating that provision yet, so we didn’t even know what it would look like yet. I suppose one could argue that a person with eyeglasses is covered under the “regarded as” prong since myopia is not transitory and minor. But I can’t imagine why one would want to use that provision -- given that we have the clear qualification provision written specifically for that purpose — unless there really is a standing problem.
(Btw, we also struggled with whether it was ok to limit the qualification standard provision just to Title I. The reason it is not also applicable to Title III is a creature of the particular dynamics of the negotiation on that particular day. Ultimately Jennifer and I decided there wasn’t enough of a potential problem for people with eyeglasses under Title III to upset the particular dynamic that had arisen.)
On some of the other comments so far:
Obviously, much of impairment is socially constructed. Nevertheless, we operated consistently on the assumption that the EEOC’s and DOJ’s current definition of impairment in the regulations would remain the definition of impairment. Hence, both severe and mild myopia would be an impairment — as would any number of other physical conditions that adversely affect a bodily system.
However, for a person to get a reasonable accommodation or a modification of policies— such an impairment must substantially limit a major bodily function or some other major life activity. For any other basic non-discrimination protection, one simply needs to demonstrate causation (i.e., the adverse action happened because of the impairment) and the impairment cannot be both transitory and minor.
The overriding goal of these amendments is to (hopefully!) move the focus away from whether a person has a “severe enough” impairment in most of the cases — and onto the question of causation (as it is in gender and race) and, if applicable, the question of qualification.
And, in cases that turn on reasonable accommodations, the goal is to make it much easier for a person to prove coverage as a person with a disability (primarily with the addition of “major bodily functions” as a major life activity; by making it clear that mitigating measures are not to be taken into account; and by making clear that episodic condition are to be considered in their active state) -- and then to move the focus of the litigation to whether the person is qualified and whether the accommodation was required.
Two quick thoughts: (1) it is fascinating to get an insight into what considerations at any time might be dispositive in hammering out eventual statutory language; and (2) it will be interesting to see whether the first courts to interprets ADAAA will do so consistent with the intent Chai relates above.