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By JOSHUA CLIFTON, a Chicago-based writer who covers workers' comp and disability issues

The Americans with Disabilities Act (ADA) quietly celebrated its 20th anniversary on July 26. While the disability community has made significant strides in overcoming discrimination over the past two decades, some experts believe the best is yet to come.

If anyone is qualified to provide a critical assessment of the monumental legislation, it's Pimentel. Upon returning from duty in Vietnam with near total hearing loss and experiencing disability discrimination first hand, Pimentel spearheaded a movement that was instrumental in the development of the ADA. At the time, he said, it wasn't clear where the groundswell of enthusiasm within the disability community would lead.

"We were young, and like any new social movement, we were very optimistic," he said. "We wanted something really encompassing, but Congress had other ideas. Originally, they were talking about simply inserting 'handicapped' into the Civil Rights Act. There wasn't going to be an ADA."

However, Pimentel and other disability rights leaders said that wouldn't cut it.

"Some smart folks in the disability movement said that we needed a law unto ourselves," he said. "We didn't just want nondiscrimination. We wanted access to buildings, transportation, communications, employment, etc."

GIVING IT A GRADE

So how well has the ADA aged since it was signed into law by President George H. W. Bush in 1990?

"If I had to give it a letter grade, I would say it deserves a 'B' overall as a law," said Pimentel, whose life's work was recounted in the 2007 film "Music Within."

"I would give it an 'A' for accessibility, which is probably where it has had the most effect. When it comes to employment, however, I would give it a 'D.' The truth is that people with disabilities have a higher rate of unemployment today--between 65 percent to 67 percent--than when we first passed the ADA."

Louis Orslene, co-director of the Job Accommodation Network, a service provided by the U.S. Department of Labor's Office of Disability Employment Policy in conjunction with West Virginia University, agreed.

"There's no doubt about the dramatic impact of the ADA," he said. "It has incredibly increased the quality of life for people with disabilities and has most effectively worked for public access. Where I think it has not worked as successfully is in employment, and that's the challenge before us. If you do not have a job and do not have the independence that comes with steady benefits and income, then the law is not working for you."

When it comes to the issue of employment, Pimentel and others point toward a series of court rulings handed down over the years that have narrowly defined the definition of disability, giving employers the upper hand in legal battles.

"The problem with the employment aspect wasn't in the design of the ADA itself," Pimentel said. "It was the courts misinterpreting congressional intent and giving those employers who wished to discriminate a huge legal edge. And in doing so, 80 percent of those cases brought against employers were being won by employers arguing that the person bringing the charge wasn't actually disabled."

When the ADA was being crafted, Pimentel said, they wanted to leave some wiggle room with regard to the definition of disability.

"We didn't define disability as tightly as we should have," he said. "We didn't want to get locked in and make a list, but leave the door open for other disabilities that would emerge in the future. The courts added the idea of mitigating circumstances, saying that maybe you were schizophrenic, but there are drugs available to treat that. By the time the legal system got its hands around ADA, it was becoming impossible to prove you were a person of disability."

CHANGE IS COMING

After years of debate and negotiation, the Americans with Disabilities Act Amendments Act (ADAAA) was signed into law in 2008, effectively modifying the ADA to correct some of the unintentional ramifications of the original law.

"This doesn't amend prior law regarding reasonable accommodations, only with regard to the definition of disability" said Camille Olson, partner with Seyfarth Shaw LLP in Chicago. "There's no question that it broadens the definition. It requires employers to ensure that they have a process that is robust, and that their employees who have the responsibility of hiring and managing understand that the rules aren't what they once were. The protections haven't changed, but the group of employees that it now covers is larger."

Going forward, Olson said, she anticipates that there will be fewer motions for summary judgment on the initial definition of disability and that more cases will look instead to whether the accommodation was reasonable and made by someone who is qualified for the job.

Pimentel is hopeful that the amended acted will achieve the original goal of the ADA--to allow individuals with disabilities to become mainstream members of the workforce.

"Theoretically, the amendments act will bring everyone back to an even playing field again," he said. "When we wrote the ADA, it wasn't meant to serve as a blueprint for how to sue companies, but for how employers and people with disabilities can better communicate with each other. With the new ADAAAA, there is a greater emphasis on talking to people about their needs. It gives employers a rational, practical way to hire people with disabilities."

Orslene said he believes that, along with the ADA amendments, cultural changes and improvements in employers' perceptions of people with disabilities will help lead the charge into the 21st century.

"You can't legislate attitudes," Orslene said. "However, I do think there is a huge convergence now among employers and advocacy organizations, and it is almost inevitable that we'll be making progress in the area of employment."

August 2, 2010

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