Hope for a new day of equal opportunity
In January, 2009, The U.S. House of Representatives showed overwhelming bipartisan support for the American’s with Disabilities Amendments Act by a vote 405-17 approving the measure. Political ideology did not trump Congress being on the right side of this vote. Many in the business community supported this expansion of civil rights protections, which no doubt helped clear it for passage.
As this bill is enacted in the workplace, it now expands the protection focus towards what constitutes discrimination rather than what constitutes disability. ADAA is a reminder that “disability in the workplace” is an intentionally broad standard, rather than a high threshold standard (retirement laws, healthcare benefits).
In general, this new standard of disability is viewed favorably by most observers, as it drives legislative language intended to open up employment by removing overly restrictive judicial definitions of disability. The Act considers that is in the best interests of the common good to include such a broad definition as it allows otherwise qualified individuals to speed their entry into employment and reduce the level of governmental benefits.
This is especially pertinent for the Boomer generation with its own onset of age-related disabilities and the impending entitlement drain on the national economy. 2010 Bureau of Labor Statistics data finds that 86 million Boomers and 35 million Americans age 65 or older self-identify as having a disability. Many people overlook or forget the relationship with aging and disability- which eventually reaches every human being who is now temporarily able.
Thus, one can look at the refined definition of disability as not being a medical term, but as a legal one. For the workplace, we want to move away from a medical definition and get into what it takes to enhance productivity. People with disabilities and employers want to focus on a strength-based, reasonable, and practical what works-in-this- particular environment approach. Research gathered from employers experience with staff disclosing disabilities shows that 73% of them do not even need an accommodation to perform the essential functions of the position.
3 Elements to determine disability under ADAA paraphrased:
A person who is “regarded as” having a condition that “substantially limits” their ability to perform a “major life function.” This post will not go into these elements, but the reader can review the legal language at this link.
The 2009 Act expands the list of conditions that are now under the “regarded as” having/being disabled category. This step helps establish the basis for workplace bias or discrimination, but does not automatically trigger workplace accommodations because it may not ‘substantially limit” a “major life function.”
Recently, EEOC has asked for public comments on proposed rules clarifications for a list of disabling conditions that will automatically be considered to be regarded as meeting this standard as a Tier I condition. As of this post, they include ADHD, Autism Spectrum Disorders, mood, physical, sensory, and intellectual impairments. For some reason, the EEOC and OCR have not included LD as a Tier I condition, but it is listed as a Tier II disability along with a range of other disorders (irritable bowel syndrome, fertility drug reactions, etc).
Point to remember: Chronic condition in 2008? You probably have a disability under the 2009 amendments.
With respect to the aspects of what constitutes “substantially limit a major life activity” for EEOC regulations, most mental health issues are specifically addressed, but not all physical, intellectual or sensory impairments are as well explained.
There has not been the hue and cry from the LD and ADHD advocacy communities one would expect from this policy stance. Advocates from all elements of the disability community really need to band together providing continous public commentary for a more inclusive approach as opposed to this restrictive list.
Workplace advocacy issues related to what substantially limits major life activities for hidden conditions such as LD, ADHD, Asperger’s, anxiety and mood disorders need to stress both major life activities limitations AND major bodily functions (neurological, brain, etc.)- Specifically the nature, manner, and duration of how they impact interactions of the employee with disability in the performance of essential functions of the job.
Without these remedies, working-age adults with these types of non-apparent high incidence conditions will hear the same old song in their quest for inclusion into meaningful careers and employment- limited considerations for easy & reasonable adjustments needed to function successfully in the workplace.