Harkin sees ADA erode
By MARY RAE BRAGG TH staff writer
The Americans with Disabilities Act is Sen. Tom Harkin’s baby, and he’s not happy that it has been undermined by the U.S. Supreme Court.
The Iowa Democrat, who is credited with shepherding the process that led to the signing of the ADA in 1990, is preparing to lead another charge, this time to restore what he said was Congress’ original intent — protecting individuals with disabilities from discrimination.
A series of Supreme Court decisions handed down over the past seven or eight years undermined key protections in the bill, according to Harkin.
The ADA Restoration Act he is proposing has the support of a majority of the organizations that represent people with disabilities, Harkin said, along with tentative agreement from the U.S. Chamber of Commerce, the National Association of Manufacturers, the Society of Human Resource Management and the H.R. Policy Association.
The original ADA report language specifically said that whether a person takes medication or uses an assisting device should not be taken into account when determining if a person is disabled, Harkin said. But a series of Supreme Court rulings held that those mitigating measures must be taken into account when determining if a person is disabled, and the court subjected to very strict scrutiny the definition of disabled as meaning “substantially limited in a major life activity.”
“As a consequence, millions of people we intended to be protected under the ADA are not protected anymore,” Harkin said.
So, Harkin said, someone who takes medicine to control epilepsy and therefore is able to qualify for a job is no longer covered by the ADA, according to the court. If an employer finds out the person has epilepsy and fires him or her, the employee has no recourse.
“It’s put an awful lot of people in catch-22 situations,” Harkin said.
The senator also recounted the testimony of a pharmacist who described before a Senate committee how he was fired after asking his new manager for breaks so that he could take his medication and monitor his blood count.
“It’s happening to veterans who have lost limbs and use prosthetics,” Harkin said. “It’s just astounding that this kind of thing is happening.”
It took a great deal of work over a long period of time to get everyone on board for the original ADA, Harkin said. It seemed the business community was fearful of costs and besides, “it wasn’t just physical barriers; it’s the prejudices and fear that others have,” Harkin said.
The business community has come to appreciate the tax credit available to those who make accommodations for the disabled, Harkin said, “but there’s still a lot of prejudices among people who don’t want to work next to a person with a disability.”
“I never thought about it at the time, but it became obvious over time that the accommodations are good for everyone,” Harkin said. “Universal design means it’s more accessible for everyone.”
Harkin said his first personal experience with discrimination against people with disabilities took place as he watched the treatment given his older brother, who was deaf from early childhood. Years later, his nephew was severely injured while serving in the Navy and became a paraplegic.
Harkin said he watched as the young man went to college with help from the Veterans Administration. But his nephew faced physical barriers in trying to get around campus and even more difficulty in getting a job and housing after he graduated.
“It opened my eyes to discrimination and to how you could change the system,” Harkin said. “I saw a whole universe of people who needed to have facilities.”
“So, it’s kind of nice to look around 18 years later and see all the changes that have taken place,” he said, relating how he recently took a flight that included two people who boarded with their seeing-eye dogs. “That would never have been possible without the ADA.”
Harkin, who serves as chairman of the Senate Agriculture Committee, spent more than a year negotiating an ag bill that recently survived a presidential veto. But the importance of that bill’s provisions still do not compare to the ADA, he said.
“The farm bill comes up every five years; the ADA is once in a lifetime,” the senator said.
“It makes us a more caring, decent, open society,” Harkin said. “It makes us a society that provides opportunity for everyone.”