Limiting the ADA
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JIM LEHRER: Now, the impact of the various decisions. Marca Bristo chairs the National Council on Disability and is president of the Access Living in Chicago. And Peter Petesch is an attorney who represents businesses and labor and employment cases. He filed friend of the court briefs in two of the disabilities cases decided today.
Mr. Petesch, how significant are these decisions?
PETER PETESCH: Well, they’re very significant. We believe that they reflect a sound principled approach, putting some reasonable limits on the pool of persons making demands under these laws. These decisions will enable employers to focus on a much more narrow pool of people, and finally let employers focus on accommodating persons who really do need protections under this law.
JIM LEHRER: What was the situation before? How will this change the world in which businesses and employers generally have to function?
PETER PETESCH: Well, the situation before was a mixed bag. There were decisions going — running the gamut, interpreting just the threshold issue of who’s even protected under this law. There was a perception among employers and certainly the organization that I represented, the Society for Human Resource Management, that perhaps the law was beginning to run amok in an over-broad application.
JIM LEHRER: Covering people that you didn’t think should be covered.
PETER PETESCH: Covering persons who were perfectly functional with, for example, their eyeglasses, by taking a pill a day, and what we argued was that that ought to be taken into account — their glasses — their medication — and similarly any adverse side effects of a medical regimen ought to be taken into account too in deciding whether someone is substantially limited. In other words, you should look at the person as they are and not, instead, imagine them as they might be without their medication.
JIM LEHRER: So essentially your side won today?
PETER PETESCH: I think our side won lock, stock, and barrel, but this decision should not be taken as a signal that employers should ignore their obligations under this law. Instead, they should be focusing on training employees not to discriminate against their coworkers with disabilities; they should be making reasonable accommodations for persons who truly need those accommodations in the workplace, and that’s a substantial obligation.
The Congress said that the law protects 43 million Americans. Had the court decided otherwise perhaps 160 million Americans would have been considered persons with disabilities today, which would be a majority of the working population.
JIM LEHRER: Ms. Bristo, how do you see the impact of this.
MARCA BRISTO: This was a profound and negative impact on millions of Americans with disabilities. We who worked so hard on this law understand disability discrimination and understand that it goes beyond how you function, the way people think about you, the way — the myths and stereotypes that they carry without regard to your ability to use a wheelchair or take medication is a great deal of the reason why this law was passed in the first place. So we believe that today’s decision in a very ironic way underscores the need for the law even more than ever before.
JIM LEHRER: In what way?
MARCA BRISTO: Well, for example, under today’s decision we have concern that many people who face the most profound stigma, people with epilepsy, people with psychiatric disorders who have taken steps to treat their disabilities through the use of medication are now being told that if they’re discriminated against because of those myths and stereotypes, not because of anything real in their performance or their ability to do the job, they checked their rights at the door.
We believe that essentially many Americans with disabilities have lost their day in court. This is a profound setback and one that, with all due respect to my fellow guests here today, the law’s definition has two additional prongs to it, not just the functional limitation, but whether or not people are regarded as having a disability or whether they have a history of having such a disability. When you look at that, which is how, in fact, disability discrimination occurs, the numbers of people with disabilities impacted are way greater than the 43 million that Congress based their findings on.
JIM LEHRER: Well, let’s be specific. Let’s take — these cases are easy to understand, unlike a lot of legal cases. The two — the twin sisters who wanted to be pilots, and they were not allowed to be pilots because of their sight problem; they were nearsighted. Are you saying they should be included under this?
MARCA BRISTO: In my understanding, though I don’t know the people and I’m not a lawyer, the women had been pilots. They weren’t trying to become pilots. They had been pilots at another entity and proven their qualifications to serve that purpose. It was the policy that the airlines had that denied them their ability to perform the essential functions of the job. They had already proven it. And that is what I think is such a shame here. People are being denied the opportunity to have their day in court.
JIM LEHRER: What about that, the denial of their day in court, whether or not the court comes down and says okay, these two women should or should not get the job, they will not even be able to get to court now?
PETER PETESCH: Well, the court addressed that in a number of ways. Number one, the Court said that employers do have a right to set certain physical standards for employment. For example, in the Supreme Court arguments in these cases, some justices use the example of a baseball team wanting Ted Williams, who had absolutely superior eyesight, to see a baseball and to see a pitch coming sooner than any other hitter could and that enhanced his job performance. But what the court also did was it left -
JIM LEHRER: I’m not sure I follow that. That he somehow was — what was the point of that?
PETER PETESCH: The point of that was an employer like a baseball team or United Airlines, with these pilots, could set certain physical standards without necessarily being considered as discriminating.
JIM LEHRER: I got that. It’s the Ted Williams thing that lost me but we’re wasting time on that. Right. Go ahead.
PETER PETESCH: But what the court also did was to discuss the other prong that my fellow guest raised and that is regarded as having a disability. And if an employer engages in a stereotype or an incorrect assumption that a person is in fact substantially limited when they really aren’t and when they can perform the job, then that person still may be protected under the Americans with Disabilities Act.
MARCA BRISTO: Please tell us how these women had been able to successfully perform the function of serving as pilots elsewhere. I think it begs the issue and I’d like to come back to Congress and what their intent was. There were millions of Americans with disabilities who used corrective measures, eyeglasses, hearing aids, medications, wheelchairs, prosthetic devices.
Does it mean that those of us who seek the highest level of independence through those tools give up our rights? To us, the goals of the Americans with Disabilities Act included equality of opportunity, economic self-sufficiency, inclusion and independence. The court has worked directly against our ability to achieve that. And why should that be important to all Americans?
We have the highest unemployment rate of any segment in the American society. It is costing this country enormous dollars. And we finally, finally have begun to address that through the presidential task force on the employment of people with disabilities.
So just as the nation is beginning to take a step forward to try to really remove the barriers that keep people with disabilities out, this tool, the one that levels the playing field, is rebuilding that shameful wall of discrimination that George Bush said and promised us was coming tumbling down.
JIM LEHRER: Jan, did these decisions in any way speak directly to the issue of day in court for people who, even though the court said it may not include — may not cover these folks — do they have any place to go if they felt that other — or is it over for them?
JAN CRAWFORD GREENBURG: Well, there were — two of the justices dissented and in one of the opinions today, the Court said, well, simply because you can correct your disabilities doesn’t mean that you can’t ever sue. If you can’t fully correct your disabilities or if you wear a prosthetic device but it still impairs your major life activities -
JIM LEHRER: Or you feel discriminated against because of that -
JAN CRAWFORD GREENBURG: No, then you would still be out. It has to limit. And the key point the Court made today was that it has to somehow substantially limit you in a major life activity.
MARCA BRISTO: Let me use a perfect example of who will now be cut out. The prime author of the Americans with Disabilities Act who was a congressman then, Tony Coelho who has epilepsy; Tony testified before Congress on his efforts to become a priest and how the Church, once they learned that he had corrected epilepsy, said no, we don’t want you. In the work — in the private sector, if that were to have occurred yesterday, there was something that Tony and millions of other people with epilepsy could have done about it. Today they cannot.
PETER PETESCH: I’d have to disagree with that because what the Court said was that if that employer says we don’t want you because you have epilepsy, based on the assumption that that person couldn’t do the job when in fact they could, they may still be regarded as having a disability and therefore protected under the law. So once again, employers are certainly not safe in engaging in ignorant stereotypes about disabilities or conditions that may potentially be a disability.
JIM LEHRER: All right. We have to leave it there. Thank you all three very much.
PETER PETESCH: Thank you very much.