By fortressdayton

The original author of the ADA, a man confined to a wheelchair, lamented what the ADA has become. He said that, had he known what abuses of personal and property rights would take place in the name of the act, he would never have written the Act. How’s that for a commentary on the ADA? Society had a responsibility to TRY to accomodate its less-gifted citizens, but it is not obliged to do so. The ADA is a legal boondoggle used by attorneys to generate lucrative lawsuits. It needs to go away. Look around Dayton and see how this works out: every corner nearly has a sight-impaired plastic plate. How many sight impaired folks walk around Dayton? The cost is criminal. Braille buttons on drive-thru (!) ATMs. Gimme a break. Thye ADA has put more small restaurants out of business than the Mafia and the economy combined. Why does a mom and pop restaurant need a ramp and a handicapped accessible bathroom for EACH sex? Nonsense. Every welfare recipient seems to have a power chair now, so the problem is epidemic. I say, stop over-regulating in the private sector. If I don’t want to spend 200,000 to make my restaurant handicap-accessible, then that should be my decision. If you accomodate one, then you must, by rights accomodate all. Why do we get to bring assistance animals in food service establishments? What happened to hygiene? Oh, that’s right…the blind have more of a right to bring Fido in than I have a right to maintain food safety. BS!

After reading that, I was ready to reply in kind – but didn’t. Other commenters jumped into the fray, renewing my conviction in Justice Oliver Wendell Holmes’s assertion that the best remedy for speech that we hate is not its proscription, but more speech. Read what they wrote.

The libertarian argument (I’ve got mine, and I’ll step on your neck to keep it) advanced by “fortressdayton” reminded me of Rand Paul’s remarks about the Americans with Disabilities Act after his primary election victory last May in Kentucky. His language sounded reasonable compared to “fortressdayton”, but it conveyed the same sense of paternalism and noblesse oblige: the disabled  don’t need burdensome laws to help them, we know what is best for them. Here is what Rand Paul said on NPR:

I think a lot of things could be handled locally. For example, I think that we should try to do everything we can to allow for people with disabilities and handicaps. You know, we do it in our office with wheelchair ramps and things like that. I think if you have a two-story office and you hire someone who’s handicapped, it might be reasonable to let him have an office on the first floor rather than the government saying you have to have a $100,000 elevator. And I think when you get to solutions like that, the more local the better, and the more common sense the decisions are, rather than having a federal government make those decisions.

Shown live from The Great Hall in the Robert F. Kennedy Justice Building, the event will be shown in accessible streaming media and then re-broadcast, on-demand.

Featured speakers will include Attorney General Eric Holder, former Attorney General Dick Thornburgh, former Congressman Tony Coelho, and Assistant Attorney General for Civil Rights Thomas Perez.  Their presentations will be followed by a facilitated panel discussion, moderated by Samuel Bagenstos, Principal Deputy Assistant Attorney General, and will include presentations by ADA experts who played significant roles in the development and passage of the ADA:  Bob Burgdorf, Yoshiko Dart, Chai Feldblum, Arlene Mayerson, and Bobby Silverstein.

See the ADA.gov website for links to live/on demand streams:
http://www.ada.gov/2010adacelebration/ada20webcastinfo.htm

EEOC circulated the following email summarizing the rulemaking:

EEOC Proposed Rule Making addressing the ADA Amendments Act of 2008

On June 17, 2009, the Equal Employment Opportunity Commission voted to adopt proposed regulations implementing the Americans with Disabilities Act Amendments Act of 2008  which became law January 1, 2009.  The amended ADA lowers the high threshold for establishing that an individual is disabled set by the Supreme Court in Toyota v. Williams, Sutton v. United Airlines, Murphy v. United Parcel Service and Albertsons v. Kirkenburg  The Commission will submit the Notice of Proposed Rulemaking  and  publish the proposed regulatory changes in the Federal Register for notice and comment.

EEOC Vice Chair Griffin explained that the proposed regulations implementing the Act are intended to follow Congress’ direction to reverse the court decisions which narrowed the ADA’s s protections. Stating that the proposed changes provide a good tool for moving back toward Congress’ intention of eliminating discrimination; “people with disabilities can hopefully look forward to spending most of their time in the workplace, and not in a courthouse.”

Christopher J. Kuczynski, Assistant Legal Counsel-ADA Policy Division, characterized the proposed changes as an attempt to provide more helpful guidance to “individuals protected by the law, employers required to comply with it, and courts called on to resolve disputes”.   He went on to discuss that the changes utilized  five rules of construction or principles to carry out the Congress’ intent in amending the ADA:

1. Courts should focus on determining whether discrimination actually occurred, rather than on proving the existence of a disability;

2.  An individual need not demonstrate limitedness in “activities of central importance to daily life”;

3.  An impairment that substantially limits one life activity need not limit others to be “substantially limiting”;

4.  The comparison of an individual’s limits to those of most people in the general population may often be made through common-sense analogy, without citing to scientific analysis; and

5.  Impairments lasting less than six months may still be considered “substantially limiting”  including episodic conditions and those in remission.

He noted that the NPRM will identify a number of impairments that will consistently meet the definition of ‘disability’ because they will obviously be substantially limiting.  This list includes expected conditions such as blindness, deafness, and missing limbs, but also includes autism, cancer, cerebral palsy, diabetes, epilepsy, HIV and AIDS, multiple sclerosis and muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, and schizophrenia. Kuczynski emphasized that the explicit inclusion of certain conditions should never undermine the interactive and individualized nature of  that is central to the accommodation process.  The NPRM also identifies a number of impairments that may be substantially limiting depending on individual circumstances, such as asthma, high blood pressure, carpal tunnel syndrome, and panic disorder.

Commissioner Barker dissented, because she viewed the proposed changes as exceeding EEOC’s authority under the Act. While she agreed the ADA needed amending, she believed the existing ADA Amendments Act embodied the extent of the changes Congress intended to make, and that as non-legislators, EEOC is “confined to making those changes…that correctly reflect Congressional intent,” and that they do not have the power to insert or remove concepts of their own volition without authority. She further asserted that Congress had developed the Act after much bipartisan negotiation and compromise, arriving at a solution that represented the “careful balancing of interests.” Commissioner Barker said Congress did not intend “to throw out the ADA and start afresh.”