Chapter Advisor Forum

THE DEBATE ON DEFINING DISABILITY  CONTINUES

The Americans with Disabilities Act changed the way the world, particularly Americans, viewed its disabled citizens. Since its passage in 1990, disabled workers were given the right to seek legal redress if an employer discriminated against someone because of that person’s physical or mental impairment. The intent behind the law was to take disability out of the workplace equation as long as the disabled employee could perform the essential functions of that job. However, the Supreme Court eventually slid the question of disability back into the equation with policy-shaping decisions, essentially spurring a creeping standard in the adjudication of disability-discrimination claims. In fact, proving the disability became  the threshold consideration where discrimination itself was the issue. As a result, instead of focusing on the matter of whether an employer’s discriminatory or disparate treatment was based on an employee’s disability, the question of whether a disability even existed under the statute gave employer’s a chance at a legal backdoor through which to slip. That is until the ADA Restoration Act of 2007 sealed that door shut.

Under the Restoration Act, the original intent of the ADA is restored by redirecting focus back to the basis of a claim versus those smokescreen  issues surrounding discrimination questions. Specifically, the Restoration Act provides a more cogent definition of disability and appreciates its nuances. It also leaves the courts to deal with the barenaked elements of a discrimination claim. For example, if a person wears glasses to correct poor eyesight, and an employer discriminates against that person based on his having poor eyesight, that worker is disabled in the context intended by the Restoration Act, thus legally protected. Prior to the Act, courts would consider corrective measures— such as eyeglasses, protheses, and medicine—as factors that disqualify ADA protection because they virtually erase disability. Laughable logic if it were not so dangerous. This focus on function, as opposed to bodily characteristics, created an ethical relativism in the business world where being disabled was as a matter of perspective. But now, employers will no  longer be able to argue that a wronged employee does not have a substantially limiting condition that affects major life activity.  Now, the same employee prevails if a disability, as defined under the new definition, was the basis of a discrimination claim.

Not everyone is happy with this change however. In a letter to the U.S. House of Representatives, R. Bruce Josten, executive vice president of government affairs under the U.S. Chamber of Commerce, argued that the Restoration Act applied too broadly and was “subject to greater confusion and litigation.” He supported his point by arguing that the statutory reinterpretation would make “virtually all of the entire working population in the United States…covered by the law.” He appears to contend that the only disabilities that should be covered under the statute are those that not only exist but render a person disabled in function as well. But what he fails to consider is how someone with a functional disability is likely to even compete in a business setting much less exist in one. The point is if Congress intended this tortured logic with the passage of the ADA, the Restoration Act would not have been necessary.  And Mr. Josten’s attempt to galvanize the business community against the Restoration Act with slippery-slope conclusions to make it easier to attack is disheartening and hopefully ineffective. Maybe the disabled community should consider Mr. Josten’s shortsighted perspective the next time its members must decide whether to patronize a Chamber of Commerce entity.

In closing, the language of the ADA Restoration Act of 2007 holds employers accountable to a clearer standard and compels judges to weigh the merits of a disability-discrimination case by the legal template intended by Congress in the Americans with Disabilities Act of 1990.

Comments?

In order to qualify for PVA membership, a U.S. citizen must have a discharge other than dishonorable and have suffered a spinal cord injury (SCI) as a result of trauma or disease. Given that a traumatic brain injury (TBI) is consistent with the intent of our mission focus on “central nervous system injury” care, should we look to expand PVA’s membership to include veterans with TBI? Our mission statement should be explicit about this prospective new focus and our advocacy should reflect it across the 23 medical centers seeking to care for the hundreds of service members who require long-term treatment for this catastrophic condition.

We have advocated for veterans with SCI for over 60 years. This mission was born out of a missing voice; the voice of thousands of veterans suffering from the then-misunderstood realm of SCI care. Over time, our voice has been successful in gaining the attraction of Congress and awareness across the country. We must continue our advocacy as long as America’s military defends our country. TBI has become the signature injury of the current conflicts in Afghanistan and Iraq. According to the Defense and Veterans Brain Injury Center, TBI accounts for at 30% of surviving casualties. Additionally, Protection and Advocacy Incorporated (PAI-CA), a non-profit organization based in California, has estimated that at least 150,000 to 540,000 American troops will be diagnosed with various degrees of TBI. California has already deployed approximately 22,000 troops, and with no end of the conflicts in site, PAI-CA estimates that 7,920 California veterans will be diagnosed with TBI. With the forecasted numbers, perhaps our established and experienced PVA organization could assist TBI veterans who currently have no advocacy voice.

During VA Secretary Nicholson’s address before PVA’s Advocacy and Legislation Seminar on March 6, 2007, he stated that VA had gone from an infrastructure with only 4 TBI care facilities to 22. Due to the prevalence of TBI amongst SCI patients, medical staff assigned to VA SCI rehabilitation centers are being trained to provide appropriate TBI care.

Similar to SCI, TBI is as much a neurological concern as one of physiology. And like SCI, its effects are often underappreciated. As with Multiple Sclerosis (MS) and Lou Gehrig’s disease (ALS), we already base membership on conditions that mirrors SCI.

Many organizations and government bodies presently understand the urgent need to focus on TBI and have allied themselves to the cause. However, few have the experience and resiliency to vigorously advocate for the catastrophically afflicted who do not now have a unified voice. If history is our best teacher, we should be concerned that those well meaning organizations would continue their involvement as the TBI population ages and incurs problems in an able bodied society. This decline in involvement is what happened to SCI veterans prior to the formation of the PVA.

Given our success in keeping paralysis in the World’s conscious, we are the only organization readily equipped with the organization-wide vision and enthusiasm to take on this difficult challenge. With SCI thankfully occurring with fewer incidences, presumably due to better protection and equipment, we should seek to answer the new demands of our fellow veteran population. Ask yourselves; if we add TBI veterans that demonstrate loss of motor and physical skills, to PVA’s membership, will that dilute our focus on SCI?