NYT: Plan Seeks More Access for Disabled (ADA 2.0 advocates say it does not go far enough)

[Omaha Steve]

http://www.nytimes.com/2008/06/16/washington/16disabled.html?_r=1&adxnnl=1&adxnnlx=1213621366-bHWazpPivbaJDjnDMJIeig&pagewanted=print&oref=slogin

By ROBERT PEAR

WASHINGTON — The Bush administration is about to propose far-reaching new rules that would give people with disabilities greater access to tens of thousands of courtrooms, swimming pools, golf courses, stadiums, theaters, hotels and retail stores.

The proposal would substantially update and rewrite federal standards for enforcement of the Americans With Disabilities Act, a landmark civil rights law passed with strong bipartisan support in 1990. The new rules would set more stringent requirements in many areas and address some issues for the first time, in an effort to meet the needs of an aging population and growing numbers of disabled war veterans.

More than seven million businesses and all state and local government agencies would be affected. The proposal includes some exemptions for parts of existing buildings, but any new construction or renovations would have to comply.

The new standards would affect everything from the location of light switches to the height of retail service counters, to the use of monkeys as “service animals” for people with disabilities, which would be forbidden.

The White House approved the proposal in May after a five-month review. It is scheduled to be published in the Federal Register on Tuesday, with 60 days for public comment. After considering those comments, the government would issue final rules with the force of law.

Already, the proposal is stirring concern. The United States Chamber of Commerce says it would be onerous and costly, while advocates for disabled Americans say it does not go far enough.

FULL story at link.

[KamaAina]

1. Probably an attempt to fend off the ADA Restoration Act

H.R. 3195 has over 240 cosponsors, easily enough to ensure passage (unless derailed by the all-too-familar obstructionist repuke procedural moves).

http://www.ncil.org/news/ADARADeal2.html#summary

SUMMARY OF PROPOSED DEAL TO RESTORE THE ADA

The proposed deal on the ADA Restoration Act of 2007 addresses the problems with the ADA's definition of "disability" in the following ways:

1. Changes to Definition of "Disability" (42 U.S.C. § 12102)

The proposed deal amends the definition of "disability" so that people whom Congress originally intended to protect from discrimination are covered under the ADA. Specifically, the proposed deal:

(i) defines disability as any actual, past, or perceived physical or mental impairment that "substantially limits a major life activity," and then defines this phrase to mean "materially restricts a major life activity";

(ii) includes a non-exhaustive list of major life activities drawn from Equal Employment Opportunity Commission regulations;

(iii) includes statutory findings explicitly rejecting the Supreme Court's decisions in Sutton and Williams;

(iv) includes a per se list that relieves a large group of people with frequently-litigated impairments from having to demonstrate a material restriction of a major life activity;

(v) includes a broad “regarded as” prong that covers everyone who is adversely treated based on a physical or mental impairment (except for those with transitory and minor impairments like the cold or flu);

(vi) adds several rules of construction to the definition of disability that reject past court interpretations:

- a rule directing courts to construe the definition of disability broadly;

- a rule prohibiting courts from considering the ameliorative effects of mitigating measures (courts are free to consider the ameliorative effects of ordinary eyeglasses, but an employer may not screen out people with ordinary eyeglasses unless there is a business necessity for doing so pursuant to 42 U.S.C. § 12112(b)); and

- rules prohibiting consideration of whether the manifestations of an impairment are episodic or in remission; specifying that a person need only be limited in one major life activity; clarifying that reasonable accommodations are not allowed under the "regarded as" prong; and addressing disability determinations where learning disabilities are at issue;

(vii) adds a rule of construction clarifying that disability determinations under the ADA do not establish eligibility under state worker’s compensation laws or other disability benefits programs.

2. Changes to Title I Discrimination/Defenses Sections (42 U.S.C. §§ 12112 - 12113)

The proposed deal prohibits discrimination "on the basis of disability." This change harmonizes the ADA with other civil rights laws by focusing on whether a person who has been discriminated against has proven that the discrimination was based on a personal characteristic (disability), not on whether he or she has proven that the characteristic exists (42 U.S.C. § 12112(a)).

The proposed deal also guards against reverse discrimination claims by clarifying that discrimination "on the basis of disability" means discriminating against an individual with a disability (42 U.S.C. § 12112(b)).

3. Changes to Codified Findings

The proposed deal modifies two findings in the ADA that had been used by the courts to support a narrow reading of "disability." Specifically, the proposed deal strikes the ADA finding pertaining to “43 million Americans” (42 U.S.C. § 12101(a)(1)) and the ADA finding pertaining to “discrete and insular minority” (42 U.S.C. § 1201(a)(7)).

4. Changes to Regulatory Authority

The proposed deal authorizes the Attorney General, the EEOC, and the Secretary of Transportation to issue regulations on the definition of disability.

edit: removed non-bill-related text