Saturday, 29 March 2008

Epileptics and employment - Catch 22

Some hesitant to back disabilities law overhaul
In the wrong direction? Advocates say new legislation might weaken rights of
the disabled

By Andrew Mollison
Cox News Service

WASHINGTON - Leaders of several national disability groups are hesitating to
endorse a recommendation by President Bush's disability advisers that he and
Congress rewrite the Americans With Disabilities Act next year.
The National Council on Disability, whose 15 members were nominated by Bush
and confirmed by the Senate, reported this month that ''many Americans with
disabilities feel that a series of negative court decisions is reducing their
status to second-class citizens, a status that the
ADA was supposed to remedy
Most disability advocates agree. But some fear that if Congress takes up the
council's proposed ''ADA Restoration Act,'' it might end up making the law
weaker, instead of stronger.
''In this political climate, is it smart to open up the
ADA? We know that if
we come up with our proposed changes, the other side will come up with
theirs,'' said Curtis Decker, executive director of the National Association of
Protection and Advocacy Systems, which includes 80 agencies across the country
that represent people with physical, cognitive and mental disabilities.
Such concerns, while understandable, are misplaced, according to Lex
Frieden, the council's chairperson. He said opposition to discrimination against
persons with disabilities extends across party lines.
''It's a valid question to raise,'' said Frieden, senior vice president of
the Institute for Rehabilitation and Research. ''In response, I would say that
when the National Council on Disability first proposed the
ADA [in 1988], a
conservative, Ronald Reagan, was president, and there was a very conservative
Republican Senate. But the law moved forward at a rapid pace and was signed
by another Republican, the first President George Bush, in 1990.''
The independent federal advisory agency praised the law's successes in
improving access to transportation, communications and buildings that serve the
But it said the
ADA's protections for workers have been undermined since
1999 by a series of Supreme Court decisions, and lower court judgments that
relied upon those decisions.
The decisions made it harder for people with disabilities to prove that they
have disabilities, bolstered the defenses that can be used by those accused
of discrimination, and limited the damages and legal costs that can be
collected by those whose complaints are upheld.
That helps explain why only 35 percent of adults with disabilities have
full-time or part-time jobs, the council said.
Charlotte Chenoweth, a registered nurse who analyzed medical records in
Tampa, Fla., had a seizure and was diagnosed with epilepsy. Until she and her
physician found the right combination of medications for reliable control of her
seizures without side effects, she could not drive to work.
But Chenoweth lost her attempt to force her employer to let her work at home
or to adjust her hours to coincide with the rides she could get to work. The
judge ruled that Supreme Court decisions meant that since her epilepsy had
been mitigated by the time her case came up, she was no longer protected by the
In fact, according to the council, Supreme Court decisions would have
allowed her employer to fire her for having epilepsy, as long as the epilepsy was
under control.
''This is true even if the employer . . . puts up signs that say 'epileptics
not welcome here,' inaccurately assumes that all persons with epilepsy are
inherently unsafe, or has the irrational belief that epilepsy is contagious,''
said the council's report, called ''Righting the ADA.''
In a similar case cited by the council, a pharmacist with diabetes was fired
after he said he needed a half-hour off every four hours in order to take
insulin and eat a small meal. It was ruled that because he could control his
diabetes through such measures, he didn't have a disability covered by the
The revisions proposed by the council included the recommendation that the
current ban on discrimination ''against an individual with a disability'' be
reworded to ban discrimination ''on the basis of disability.''
''They would restore the original meaning,'' said Robert Burgdorf, a law
professor at the University of the
District of Columbia who worked on both the
1988 and the new drafts. ''If an employer discriminates against you on the
basis of epilepsy or diabetes, the question should be whether you are being
discriminated against, not whether you have epilepsy or diabetes.''
John Kemp, a
Washington attorney who served on the council under President
Clinton, endorsed the current council's plan. ''It shouldn't be true, it
can't be true, that I - wearing four prostheses and using an electric
scooter-wheelchair - could possibly be considered not covered by the
ADA, because I
have mitigated the limitations caused by my impairment.''

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