Crafting language to undo the damage
'A catastrophic loss'
By Robert L. Burgdorf, Jr.
From a memo circulated this summer by law professor Robert L. Burgdorf, Jr., who crafted the initial language for the Americans withDisabilities Act by the National Council on Disability.:
"I think the Supreme Court decisions on the definition of disability constitute . . . a severe, even catastrophic loss. . . . I can find very little in the way of silver lining to this cloud." -- Robert L. Burgdorf, Jr.
"It would not be particularly daunting to craft language that would undo the damage to the ADA done by the end-of-term Supreme Court onslaught. . . . The most complete and radical way to fix all of this would be to return to the original form of the ADA as proposed by the National Council on Disability [in the late 1980s] . . . This would involve getting rid of the protected class of 'individuals with a disability' afforded protection under the statute, simply prohibiting discrimination 'on the basis of disability' and removing the words 'substantially limits one or more of the major life activities' from the statute. . . . [but this] would require strong education and public relations efforts, both within the disability community and, generally, to explain why they were needed. . . .
"A less radical and fairly efficacious approach . . . would be to seek to alter only the interpretation of the 'regarded as' prong. . . . This could be accomplished by clarifying that being 'regarded as having a disability' should not be linked to substantial limitation or to major life activities, but encompasses disadvantageous treatment. . . .
"Lawsuits challenging discrimination will continue to focus solely on how 'gimped up' the plaintiff is, rather than on the covered entity's allegedly discriminatory policies and practices . . .
"Given the damage that has been done, I know that most of us want to figure out a way to fix [the ADA]. The Supreme Court seems only to have begun its dirty work; who knows what next term will bring? Short of a dramatic change in the composition of the Court, there is almost no chance of any amelioration through the judicial system.
"No matter how much I want the ADA to be fixed, I have no desire at all to have the current Congress get a crack at revising the statute. I cringe at the thought of . . . the Trent Lotts reworking the definitions and other provisions of the ADA. The organizations representing the business community have pounced on the [Title I] decisions as great victories. They are not going to let their representatives in Congress let us undo them. And I am not completely confident the Executive Branch would hold the line in the face of opposition from business interests they seem pretty cozy with. . . .
"I hope the disability community will organize around this issue, take it to the candidates and use it for the motivation for getting the Congress back in the hands of our friends. Candidates should be asked to commit themselves to comprehensive coverage of the ADA.
Accomplishing this would depend "on getting people to understand what these decisions really mean. Initially, we need to get the word out to those with . . . conditions such as diabetes, epilepsy, those who use prosthetic devices. But we also need to get people with other disabilities to understand that the narrowed definition undercuts their rights, too, and that even those with the most severe disabilities will have to overcome distasteful and often expensive burdens of proving 'how disabled' they are.
"Finally, we need to convince the general public that it is terrible that the Supreme Court has made it okay for employers to fire people because they wear glasses, or use hearing aids, or have scars or birth marks, or take medication, or have high blood pressure, without possibility of even considering whether such policies have any justification at all."
See Reclaiming our Civil Rights
Back to table of contents
