Unions and Democrats: Everyone is disabled

politics | Jul 05, 2008 | By Andrew M. Grossman, James Sherk

Last week, with the backing of big business groups, organized labor, and disability rights groups, the House of Representatives passed an amended version of the ADA [Americans with Disabilities Act] Restora­tion Act (ADARA, H.R. 3195). Though touted by supporters as a moderate compromise, the legislation greatly expands the class of Americans who are "dis­abled," and thus legally entitled to special treatment. This new classification would impose a heavy burden on employers, especially small businesses, while actu­ally disadvantaging those who have serious disabili­ties. At a time when economic growth has slowed and unemployment has begun to tick upward, Congress should avoid policies that reduce businesses' flexibil­ity, raise the cost of labor, promote inflation, and dampen America's economic competitiveness in the global market.

Everyone Is Disabled

Congress passed the Americans with Disabilities Act in 1990 to help disabled Americans participate in public life.[1] The ADA was focused on Americans with genuine disabilities that prevented them from performing major life functions. The ADARA would transform the ADA into legislation covering most Americans.

The ADA covers Americans with "a physical or mental impairment that substantially limits one or more major life activities."[2] The House legislation retains this definition but redefines the term "major life activity" to deprive it of nearly all meaning and supplies loose "rules of construction" to render nearly all impairments disabilities requiring ADA compliance.[3]

Under the bill, "a major life activity" is nearly anything one might (or might not) do in a day. The text includes a non-exclusive list of activities: "per­forming manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrat­ing, thinking, communicating and working." Fur­ther, the definition also includes "the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions." Any impairment that "materially restricts" a person from doing any of these activities or his body from performing these operations would constitute a disability for the purposes of the law.

Additionally, the legislation mandates that the meaning of the term "disability" be "construed broadly" in every possible way. According to these interpretive rules, an impairment that "substan­tially limits" a single "major life activity" (i.e., just about anything a person might do) is a disability. That the impairment might be episodic or in remis­sion (or, by implication, temporary) does not pre­vent it from being a disability. And strangest of all, the determination of whether an impairment rises to the level of being a disability would be made without reference to any mitigating measures, such as medication, hearing aids, or "learned behavioral or adaptive neurological modifications," an appar­ent reference to an individual's ability to learn to work around an impairment.

There is one telling exception, however, to the rule that ameliorative measures be disregarded. The legislation specifically exempts from the rule "ordi­nary eyeglasses or contact lenses," which, unlike all other mitigating measures, may be considered when determining whether an individual is dis­abled. The drafters of this legislation must have concluded that, without this specific exception, a person who wears eyeglasses or contact lenses to correct an ordinary visual impairment would be "disabled" and so entitled to all o


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