Life with MS

ADA Update

By Lanny E. Perkins, Esq., and Sara D. Perkins, Esq.
Signed into law in 1990, the Americans with Disabilities Act was heralded as the world's first comprehensive civil rights legislation affecting people with disabilities. In addition to offering protection against employment discrimination for people with disabilities, the ADA also improved their access to public services, activities and programs; commercial services and activities; public transportation and telecommunications, among other areas.
 
Those who were around prior to the early 1990s would probably agree that the “bad old days,” before the act was approved, were very bad indeed. Few buildings – even government facilities – were really accessible to anyone with mobility impairment.  The ADA helped a great deal, but it didn’t completely remedy the situation.
 
As recently as 2004, the U.S. Supreme Court heard a case about a Tennessee courthouse where the only way people with disabilities were able to access the upper floors was for them to be carried up by courthouse personnel! The Supreme Court decided in the plaintiffs’ favor, directing that appropriate changes be made to the building, at some cost to the local government. In other cases, however, the cost, size, and the historic character of a building have made it difficult to enforce the ADA or implement needed changes. 
 
Almost from its inception, the ADA has been the subject of many lawsuits, particularly those that involve the interpretation of employment issues, including hiring, workplace discrimination and accommodation for disabilities. The definition of disability and who is considered disabled under the ADA has been at the heart of many cases.
 
Under the terms of the act, a person with a disability is defined as someone with a physical or mental impairment that substantially limits one or more major life activities, or who has a record of, or is regarded to have, such impairment. A qualified employee or applicant with a disability is an individual who, “with or without reasonable accommodation,” can perform the essential functions of the job in question. 
 
Reasonable accommodation can include, but is not limited to: making existing facilities readily accessible and usable by people with disabilities; job restructuring; modifying work schedules or reassigning a person to a vacant position; acquiring or modifying equipment or devices; adjusting examinations, training materials, or policies; and providing qualified readers or interpreters.
 
An employer is required to make reasonable accommodations for a qualified employee unless doing so would involve “undue hardship,” a determination that is based on factors such as the expense and level of difficulty involved in making the changes. An employer's size may be a consideration. The ADA employment sections only apply to workplaces with 15 or more employees. An employee is not required to reveal their disability but if they do not, the employer is under no obligation to make an accommodation.
 
The U.S. Equal Employment Opportunity Commission, the federal agency charged with enforcing federal discrimination laws, handles complaints regarding violations of the ADA in the workplace. But its interpretation of the act’s employment regulations was criticized by many disability advocates from the very start. These advocates felt the EEOC was opposed to the broad and inclusive nature of the original ADA and lobbied for an update of the law. 
 
The result was the ADA Amendments Act of 2008, which was signed into law by President George Bush in September and which went into effect Jan. 1. Its key amendments include an expansion of the definition of “major life activities” as it pertains to disability. Two nonexhaustive lists are included, detailing many activities not previously specifically recognized by the EEOC, such as reading, bending, and communicating, and major bodily functions, such as those of the immune, digestive, urinary, neurological and reproductive systems, among others.  
 
The Amendments Act states that mitigating measures, other than things like “ordinary eyeglasses or contact lenses,” will not be considered in assessing whether a person has a disability. The Amendments Act also clarifies that those conditions that are episodic or that go into remission but substantially limit a major life activity when active – such as MS or epilepsy – are also covered under ADA regulations. 
 
A person who is subjected to discrimination because of an actual or perceived impairment will meet the “regarded as” definition of disability under the Amended Act unless the impairment is minor or transitory. The definition of “disability” is to be interpreted broadly, an update that addresses the criticism that the real purpose of the ADA had been thwarted throughout the years. 
 
In summary, the Amendments Act expands the definitions of disability under the ADA and recognizes the episodic nature of MS as a disability.  A qualified person with impairment must still be able to perform the essential elements of a job, whether or not they need a reasonable accommodation. The act, especially its broadening of the definition of disability, puts the ADA firmly on the side of the disabled.
 
To learn more about the ADA visit www.ada.gov.
 
Lanny E. Perkins, Esq. and Sara D. Perkins, Esq. are the authors of Multiple Sclerosis: Your Legal Rights, available at the MSF Lending Library and through major booksellers. Lanny Perkins is a Dallas-based attorney whose practice includes working with a number of people who have multiple sclerosis and face the issues discussed in this book. Sara Perkins is retired from active law practice but remains an active volunteer with her local chapter of the National Multiple Sclerosis Society, especially in the area of legal issues.
 
(Last reviewed 7/2009)