Featured Blogger - Jonathan Mook: The ADA Amendments Act: The Product of a Remarkable Bi-Partisan Coalition

Featured Blogger - Jonathan Mook: The ADA Amendments Act: The Product of a Remarkable Bi-Partisan Coalition

Like the original Americans with Disabilities Act of 1990, the ADAAA was the product of a broad coalition of Republicans, Democrats, disability rights advocates and employer and business groups coming together to enact legislation that they all could support.  Many on both sides of the political aisle and from all shades of the political spectrum had come to the conclusion that the narrow interpretation of the definition of “disability” adopted by the Supreme Court in a trio of decisions in 1999 (Sutton v. United Air Lines, Murphy v. UPS and Kirkinburg v. Albertson’s, Inc.) had unduly limited the protections of the statute and that something needed to be done.

  To listen for free to my podcast on the ADA amendments, click here.

Movement to Amend the ADA 

Starting in 2004, the National Council on Disability (NCD) started pushing for a legislative fix to reverse the Supreme Court’s decisions.  NCD drafted a bill entitled the “ADA Restoration Act” to accomplish that goal.  It took two additional years, however, until 2006 for any remedial legislation to be introduced in Congress.  That legislation entitled the “Americans with Disabilities Act Restoration Act of 2006,” stayed bottled -up in committee and never made it to the floor of either the House or Senate. 

A year later, in 2007, another attempt to amend the original ADA was made with the introduction of the “ADA Restoration Act of 2007.”  Committee hearings were held, but concerns were expressed, especially by the business community and the Bush Administration about the ramifications of the proposed legislation.  In particular, the ADA Restoration Act would have eliminated the requirement that a physical or mental impairment substantially limit a major life activity.  All that was necessary to be “disabled” under the statute would be that a person have an “impairment.”  This was more than a simple change in language.  The ADA Restoration Act far from “restoring” the statute, would have given federal civil rights protections to anyone with any type of impairment no matter how minor or temporary, such as a broken leg, the flu, or being near sighted.  Obviously, such a dramatic change in the law would never pass muster with the employer community.

A Compromise Is Forged

Things began to change in 2008, however, when it appeared that not only the White House, but also Congress might well change from  Republican dominance to a federal government controlled by Democrats.  With the prospect of a Democratic administration and Democratic majorities in the House and Senate, concern developed in the business community that the ADA Restoration Act might actually have the prospect for passage in 2009.  In order to head off such an eventuality at the proverbial pass, representatives of the business community decided that it would be better to forge an acceptable compromise piece of legislation in 2008, rather than wait until 2009 when their leverage with a Democratic Congress and administration would be lessened dramatically.

Accordingly, beginning in the spring of 2008, representatives of both the disability and business community began to talk and see if they could reach an acceptable compromise that would broaden the definition of disability beyond that articulated by the Supreme Court, but not treat every physical or mental impairment as a “disability” as would be the case under the ADA Restoration Act.  This compromise piece of legislation became known as the ADA Amendments Act of 2008.

Smooth Sailing for the ADAAA in Congress 

The legislation was introduced in the House in June, 2008.  It sailed through committee, and was approved by the entire House on July 25, 2008.  The remarkable support for this legislation is reflected in the vote: 402 to 17. 

The Senate bill, which was slightly different than the House version, moved just as swiftly.  The bill was introduced in the Senate on July 31, 2008 and approved on September 11, 2008 by unanimous consent. 

Because of the differences between the House and Senate versions of the legislation, the Senate bill was referred to the House and less than a week later, on September 17, 2008 the House passed the Senate bill on a voice vote.  The following week, on September 25, 2008, President Bush signed the ADAAA into law.  It was only fitting that at the White House signing ceremony, not only were there Republicans and Democrats, as well as representatives from the disability community  looking on, but President Bush’s father, George H.W. Bush, who signed the original legislation in 1990, also was there. 

Bipartisan Priase for ADAAA

Although the partisan nature of Washington often is emphasized in the news media, the passage of the ADA Amendments Act represents legislation where the traditional divide between Republicans and Democrats was absent.  For example, the sponsors of the Senate version of the ADA Amendments Act were Tom Harkin (D. Iowa) and Orrin Hatch (R. Utah), who probably don’t agree on many things, but both agreed that the original ADA needed to be amended in order to broaden its protections.  For example, in his remarks on the Senate floor, Senator Tom Harkin stated:

This bill [the ADA Amendments Act] is about restoring the Americans with Disabilities Act back to where we intended it to be eighteen years ago and to give clear directions to the courts about how they should decide cases . . . .  It will restore the power balance, it will clarify and broaden the definition of disability, it will increase eligibility for protections of the ADA . . .

In language remarkably similar, Senator Orrin Hatch echoed Senator Harkin’s comments:

Why do we need to do this? . . . these [Supreme Court] decisions have the effect of narrowing the ADA’s coverage and the protections it affords . . . the authority over federal disability policy remains here with Congress, and it is our responsibility to establish, change, expand, redirect, or amend it whenever and however we see fit.  This is what we are doing today with this bill.

Also, although it is usually liberal members of Congress who have criticized the conservative nature of recent Supreme Court decisions, in this case, not only did criticism of the Court’s ADA decisions come from the Democratic side of the aisle, but also from those Republican legislators who are usually viewed as being extremely conservative in their viewpoints.  Protections for persons with disabilities clearly has a bipartisan support and approval.

It remains to be seen, however, whether in the new Congress bipartisan efforts to forge legislative compromises, such as the ADAAA, will continue to occur.  At the very least, the ADAAA shows that such bipartisan efforts certainly are possible.  

  • To read my blog on The ADA Amendments Act: What It Means for You, click here.
  • To read my blog on The ADA Amendments Act: Expanding the Definition of Disability, click here.
  • To read my blog on The ADA Amendments Act: What Are Major Life Activities and What Is “Substantially” Limiting? click here.
  • To read my blog on The ADA Amendments Act: Final Thoughts and Compliance Tips, click here.

 Publisher's Note: To purchase Jonathan Mook's pamphlet on the "ADA Amendments Act of 2008", call LexisNexis Customer Service at 1-800-833-9844. The ISBN is 978-1-4224-7105-0. Price is $96, effective through 12/31/2009.