ADA Amendment Strikes the Right Balance

Last August, the US Chamber of Commerce, an association of three million businesses, sent a letter to Congress opposing a bill that would amend the Americans with Disabilities Act. Calling it an essential "re-writing" of the Act, the Chamber said it believed such changes would open the floodgates for litigation by "virtually all of the entire working population in the United States " who believed they may have been discriminated against due to disability. "The bill would change the definition of 'disability' so that any individual with an impairment -- such as poor eyesight correctible by wearing glasses -- would be considered disabled and would trigger the employer's duty to accommodate them."

I wrote about disability discrimination litigation for BusinessWeek Online. In a famous 2002 case, Toyota v. Williams, the Supreme Court sided with Toyota Motor Manufacturing, which refused to tailor a job for an assembly-line worker who claimed she developed carpal-tunnel syndrome on the job. In its unanimous decision, the court held that Ella Williams' condition did not meet the ADA's definition of a disability because it had not "substantially limit[ed]" any "major life [activity]."

I agreed with the decision because I believe the ADA is designed to encourage employers to hire the disabled, who may have abilities that are perceived as not being on par as their able-bodied counterparts. (One leg missing is mostly irrelevant when you're smart and educated, but using it as a ploy to get hired is a problem.) In this case, a ruling in Ella Williams' favor might have enticed other U.S. workers to make specious claims, such as passing off an out-of-workplace injury as a disabilities case. There's a place for workplace injury claims. It's the federal Occupational Safety & Health Administration.

Today, one year -- and several Chamber-esque tweaks to the bill later -- the ADA Amendments Act passed Congress and will be sent to President Bush to sign. (His father signed the original ADA in 1990.) The revised bill offers better balance between protections for individuals with disabilities and the obligations and requirements of employers.

Under the ADA Amendments Act, the definition of a disability is still a physical or mental impairment that "substantially limits one or more major life activities." However, the legislation would expand coverage by making changes to the meaning of major life activity under that definition to include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, working, and most importantly -- any "major bodily function". OK, so basically anything you do while you're alive, but Congress is hoping employees heed the spirit of the law.

I applaud Congress for expanding the ADA to include more life activities. The bill will give protections to those whose disablity is eposodic or may go into remission, such as someone with epilepsy, diabetes or cancer. However, we still needed strong architecture around the ADA or else it risked cancelling itself out. It's a law designed to protect those who need it in the workplace and lifespace. Which brings me back to Toyota v. Williams. I wonder if Ella Williams could win her case under the new parameters.

Response to NYT article on ADA

In the New York Times Sunday Magazine's "Unintended Consequences" (Jan. 20, 2008), authors Stephen J. Dubner and Steven D. Levitt pose the argument that some “special-interest” laws, such as the American with Disabilities Act (ADA), may hurt the very people it intended to benefit.

Dubner and Levitt, who are also the authors of the best-selling book “Freakonomics” and a blog of the same name, give a qualitative and quantitative example supporting their case. First up: A Deaf patient from Los Angeles sought medical advice and treatment for her knee from Dr. Andrew Brooks. She asked the doctor to hire and pay for a sign language interpreter, and told him that she was well within her rights to do so under the ADA.

Brooks agreed to pay, but surmised that he'd lose money by treating the patient: "As it turned out, an interpreter would cost $120 an hour, with a two-hour minimum, and the expense wasn’t covered by insurance...That would mean laying out $240 to conduct an exam for which the woman’s insurance company would pay him $58 — a loss of more than $180 even before accounting for taxes and overhead."

I am also Deaf. Like the Deaf patient, I value my independence. During undergraduate and graduate school I asked for and got an interpreter for my larger classes and the college paid for it. Universities must do so under Section 504 of the ADA because nearly all post-secondary institutions receive federal funds. But Section 504 explicity says: "Although the student must request necessary accommodations, the institution must demonstrate that the accommodations it provides are effective."

In other words, a student may request a number of accommodations, but the institution only need provide accommodations that result in effective participation. So, for my smaller classes I chose to read lips. I even finangled a way for a classmate to receive extra credit for taking notes for me. And I used technology as much as I could to help me get through the every day.

My advice to the Deaf patient would have been to meet the doctor halfway. She might have helped to pay for an interpreter, or used an interpreter for the first couple of sessions. She might have had him write notes on his pad (Brooks did suggest this solution, but she refused.) She might have brought a hearing friend or relative with her. Even better, she might have used technology such as Instant Messaging (a universally accepted form of communication for both deaf and hearing people.) The good doctor on his Blackberry and she on her Sidekick. Fun, no?

There is one solution that would have worked perfectly, if the Federal Communications Commission (FCC) would consider funding it. It's called Video Remote Interpreting (VRI). On this type of call, both the deaf and hearing parties can be in the same room and a sign-language interpreter will sign/translate from a remote location on a Videophone. It's currently offered as a paid service by Sorenson Communications, but it's cheaper than hiring an interpreter on site.

Sorenson does offer a free, FCC-funded solution called Video Relay Service (VRS). In this scenario, the doctor dials 888-FAST-VRS and connects to a sign-language operator who calls the patient on a Videophone. The doctor speaks to the operator, who in turn signs to the patient....the patient signs back to the interpreter....and the interpreter speaks her words to the doctor.

Several years ago I met the CEO, Jim Sorenson, when I was an Assistive Technology reporter at BusinessWeek. He's a smart and well-intentioned guy. I tried out the Videophone at the Lexington School for the Deaf in Queens, New York. I also sat in one of their new Videophone booths that is designed for public spaces, like universities and airports. The Videophone booth looks like one of those $3 photo booths at Coney Island -- sparse, but private.



At the end of the day, the Deaf patient's attempt to get her needs fulfilled (her way and only her way) is at odds with the spirit of the ADA and its "reasonable accommodation" premise. These types of situations could backfire and hurt others who are disabled, which is the argument that Levitt and Dubner make.

In the end, the Deaf patient didn't need the knee surgery. But I can't help but wonder if the doctor felt ambushed. Would he ever accept a Deaf (or disabled) patient again?

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Dubner and Levitt’s next example from their article cites findings from two economists who say the ADA has had a negative effect on the employment of the disabled. “Employers, concerned that they wouldn’t be able to discipline or fire disabled workers who happened to be incompetent, apparently avoided hiring them in the first place,” Dubner and Levitt said.

I think Dubner and Levitt make a good case, but I am going to need to do some of my own research. I believe that employers are not as concerned about incompetence (a complete inability to function) as they are about the disabled employee’s ability to consistently perform a job to par.

That's because more of Corporate America has adopted Six Sigma, performance management systems and merit-based pool bonus structures. The result is that one person's performance is intrinsically tied to his or her team's output. Much like nobody wanted the handicapped kid on their Dodge Ball team, it has become harder for the disabled to be given a chance to prove themselves because the stakes are higher for everyone involved. Simply put, it's a trust issue.

That's why it is so pressing that people with disabilities go above and beyond to educate themselves and their employers about their disability. They must also capitalize on technological advances, such as video relay, text readers and speech applications, that will help them dispel notions that they can't pull their own weight for the team. What might look like incompetence is really just ineffectiveness -- because the person with a disability hasn't asked for or been given the right tools.

All in all, getting to par is possible and doable. But it takes chutzpah on behalf of the disabled employee, and education and understanding from the able-bodied boss that given the right accommodations, his employee can succeed.

The economists’ results were published in the Journal of Political Economy in 2001 -- nine years after the ADA was enacted -- but the data could be older than 2001. Advances in technology today and tomorrow will continue to help build the bridge between the able-bodied and people with disabilities in the workplace.

In summary, everyone should rise to meet the "reasonable accommodations" of the disabled. But the disabled should also take responsibility for ensuring their requests will be effective, are mutually accommodating and don't overstep the boundaries of the law's good intentions.