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For Karen Sutton, her twin sister Kimberly Hinton, and Ella Williams, the U.S. Supreme Court was a hostile environment from 1999 to 2002 because of a series of employment decisions during those years that left the three women and countless others outside the protections of the landmark Americans With Disabilities Act. Nearly a decade later, Congress appears on the verge of undoing much of the high court’s handiwork. The names of Sutton and Williams, enshrined in Supreme Court case reports, will take on additional prominence if the Senate, as seems likely, follows the lead of the House and adopts the ADA Amendments Act of 2008. The legislation, approved on June 25 by an overwhelming House vote of 402-17, explicitly rejects the standards and reasoning in Sutton v. United Air Lines, 527 U.S. 471 (1999), and Toyota Motor Mfg. v. Williams, 534 U.S. 184 (2002). The culmination of a remarkable joint effort by disability advocates, business community leaders and members of Congress, the bill attempts to push federal courts off a path that has led, by one group’s study, to the rejection of 97% of plaintiffs’ ADA-related job bias claims in 2004 alone. “There’s absolutely no doubt it will mean more litigation because the definition of disability is significantly loosened, so more cases will survive summary judgment,” said Frank Morris, head of the labor and employment practice in Epstein Becker & Green’s Washington office and co-chairman of the firm’s disability law group. “The other reason for a lot more litigation is this will open up many more situations to accommodation requests.” Employers fear a lot of initial litigation, but “I don’t think that necessarily will happen,” said Lawrence Z. Lorber, Washington partner in the labor and employment practice of New York’s Proskauer Rose. ‘A fair response’ The House-passed bill, Lorber said, is “a fair response to the Supreme Court decisions and the concerns of the disability community that they are getting shut out of court.” At the same time, the bill does not “open the floodgates” for employers, added Lorber, who has participated in the negotiations. By providing more clarity about congressional intent, the bill ultimately will reduce litigation, said another participant in the negotiations, Jennifer Mathis, deputy legal director of the Judge David L. Bazelon Center for Mental Health Law. “A ton of litigation and resources has been expended on who has a disability — whether they fit into the definition box,” she said. “That’s not where the resources should be expended; they should be expended on determining whether there has been discrimination. The whole focus of the bill is to move away from who has a disability and to whether there has been discrimination.” Providing clarity To achieve that shift in focus, the bill explicitly states that the definition of disability “shall be construed broadly.” How broadly? “More broadly than [courts] have in the past,” answered disability law scholar Peter Blanck, chairman of the Burton Blatt Institute at Syracuse University, adding that the bill’s language is clear that “the basic principles of the law are to be interpreted broadly.” Under the current law, disability is defined as a physical or mental impairment that substantially limits one or more of the major life activities of the individual; a record of such an impairment; or being regarded as having such an impairment. The bill would change the definition by adding that “substantially limits” means “materially restricts” a major life activity. It also makes clear that being limited in one major life activity is enough, and an episodic impairment or one in remission is still a disability if it would substantially limit a major life activity when active. Reversing Sutton, the bill says that the effects of mitigating measures — and it lists them — cannot be considered in determining whether an impairment substantially limits a major life activity. Eyeglasses and contact lenses are excluded. “People who by virtue of medications have controlled their conditions so their impairment is not substantially limiting have failed under existing law,” said Epstein’s Morris. “Those cases would go forward.” Major life activities The bill also has a non-exclusive list of major life activities, including a separate provision listing bodily functions. That language is encouraging, particularly for cancer victims, noted Blanck, adding, “To say a woman with breast cancer is not covered by the law is sad.” Courts have struggled with disabilities that affect bodily functions more than life activities, said Mathis. “A lot of people with cancer have not been covered. This is really an effort to make clear body functions can be a type of life activity.” Business community leaders negotiated important limits on the “regarded as” prong of the disability definition, said Proskauer’s Lorber. The act would not cover individuals who fall into that category if the impairments are transitory and minor — an actual or expected duration of six months or less. And employers would not have to provide a reasonable accommodation to someone who was “regarded as” but did not have a disability. “That was absolutely important to business, otherwise you could take out ‘disabilities’ from the ADA and it would be the Americans with Impairments Act,” said Lorber. The negotiators from major business and civil rights groups “parsed each word” in the legislation before House action, Lorber said, and they now hope for passage without amendments in the Senate before Congress adjourns this fall. Civil rights groups and key congressional leaders wanted business leaders at the negotiating table because they wanted the strongest possible chance of getting a bill passed this year and they wanted the business community to support the employment of people with disabilities, said Mathis. “One of the difficulties we have experienced with the ADA is it has not significantly increased the percentage of people with disabilities who are employed, and certainly not to the extent people had hoped,” she said. The bill “basically restores many of the foundational elements which many thought were included in the law to begin with,” said Syracuse’s Blanck. “Essentially it’s not revolutionary, and not even evolutionary.”

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