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. 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."
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.
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 of the law's protections-a scenario that would
bring more than half of all Americans and 64 percent of those of
working age under the ADA.
This exception, however, is a small patch on a big hole: It
applies only to those with minor visual impairments but does not
exempt from ADA coverage all those who suffer other
impairments of similarly limited severity. This concern is not
hypothetical. Courts have found a variety of minor yet prevalent
conditions to be impairments, including back and knee strains,
high cholesterol, erectile dysfunction, headaches, and tennis
elbow. All of these minor, possibly fleeting
conditions-most of which can be entirely remediated by medicine,
exercise, or changes in diet-could qualify as disabilities,
triggering all of the ADA's protections.
As an example, consider asthma. It is a common medical
condition, affecting approximately 20 million Americans, that
under current law is unlikely to be found a disability.
Most asthma sufferers are able to manage the condition by avoiding
harmful behaviors like smoking; filtering the air in their homes
can also reduce irritants. Asthma attacks, for most asthmatics, are
infrequent and easily treated with an inhaler and rest. In short,
few individuals with asthma find that the condition substantially
limits any major life activity, as those words are commonly used
and understood. ADARA, however, would turn that understanding
on its head. Asthma affects the operation of the respiratory
system, which the bill considers to be a "major life
activity." Exclude all mitigating measures from the
inquiry-avoiding cigarette smoke, inhalers, air filters,
exercise, etc.-and it would be difficult to conclude that asthma,
in its entirely untreated state, does not "materially restrict"
operation of the respiratory system. This approach, of course, is
highly artificial; few people would be so reckless as to leave
untreated a potentially life-threatening but easily mitigated
condition. Yet that is exactly what ADARA presumes.
The result: Nearly any worker suffering any kind of
ailment-permanent or not, curable or not, actually
disabling or not-could be deemed disabled and have the right to
demand a variety of accommodations from his employer.
Burdens on Business
Legally defining any worker in less than perfect health as
disabled does more than highlight Congress's disconnect from
the real world. It would also severely disrupt businesses by
extending the burdensome accommodation process granted to disabled
workers to most employees.
Under the ADA, businesses with more than 15 employees must make
"reasonable accommodations" in their hiring processes,
workplace environments, and job duties to allow otherwise
qualified employees who are disabled to work. Reasonable
accommodations are those that do not impose "undue hardship" on the
employer and generally consist of shifting job tasks to other
employees, altering when and how job tasks are performed, or
providing a disabled employee with unlimited leave that does not
result in termination. Common accommodations that the
government has stated rarely impose an undue hardship include
installing ramps and accessible restrooms, hiring interpreters for
the deaf or blind, and soundproofing portions of the
If a disability prevents an employee from performing his
duties entirely, the employer must reassign the employee to
any vacant position of similar pay and status for which he is
qualified. At the same time, an employer may
not disclose to other employees that any of these changes are being
made to accommodate a disability; such a disclosure of "medical
information" is a violation of the ADA.
Big businesses have the structure in place-general counsel
offices, compliance experts, disability consultants-to make these
accommodations in a relatively efficient manner. For a small
business, however, the costs of compliance on a per-employee basis
are far higher. To accommodate a single disabled employee, a small
employer may need to bring in a number of outside experts,
including a labor lawyer, an ADA consultant, and even an ergonomics
expert or engineer. These expenses have a serious impact on the
bottom line. By requiring the expertise of outside professionals,
such laws put small businesses at a competitive disadvantage
to larger firms, which can spread increased costs across their
Though burdensome to businesses, there are good public policy
reasons to ensure that disabled Americans are not excluded from
public life. But it makes no sense to extend the employer
accommodation requirements to most employees. Doing so would
give irresponsible employees an opening to use the law to skip work
and dump their responsibilities onto co-workers.
Doctors cannot prove the existence of some medical conditions,
such as chronic headaches or back pain. Under ADARA, perfectly
healthy workers could fake common illnesses, claim impairment, and
demand that their employer accommodate them by giving them time off
from work whenever their symptoms occur. Instead of protecting the
rights of the disabled, the law would allow irresponsible workers
to skip work at any time and to demand that they be given the best
Such a scenario may sound farfetched, but it is exactly how some
workers have misused the Family and Medical Leave Act
(FMLA). Many workers abuse FMLA leave
to avoid working undesirable shifts, such as night shifts. Others use it to take time off at
will. One worker claimed continual medical leave for a sprained
shoulder, only to appear on the front page of the sports
section the next day for bowling 300 in a local
tournament. Another worker used FMLA leave to
depart work two hours early on Fridays and arrive four hours late
on Monday, in order to avoid the "stress" of rush hour traffic. Extending the ADA to require
companies to accommodate any worker with any impairment would make
it even easier for irresponsible workers to manipulate the system
and take time off at will.
Abuses of the ADA and other protection laws also burden diligent
workers and the public. When an employee demands time off on short
notice to accommodate an impairment, his employer may not have the
time to hire and train a temporary employee. The employer must then
transfer the absent worker's tasks to his co-workers who did show
up for work that day. Such co-workers then must deal with their
entire original workload, plus the additional work. When employees
use the law to get out of undesirable shifts, responsible
co-workers must take those shifts instead.
And when there are not enough co-workers to cover the tasks and
the job cannot be done, it is the public that suffers. This already
happens with FMLA leave. For example, several school-bus
drivers in Fairfax County (Virginia) Public Schools use the
law to get out of arriving at work on time. As a result, parents
must drive their children to school before work, or the children
must wait until another bus driver finishes his run, causing them
to arrive at school well after classes have started.
Extending the ADA to cover most impairments would make the
abuses of FMLA leave seem minor. Irresponsible workers could demand
that their employer give them time off work whenever they want it
and without notice. Their co-workers and the public, in addition to
their employers, would suffer.
Endangering Jobs and the Economy
Disciplining or terminating the employment of a worker with a
disability (or even failing to make a reasonable accommodation,
which courts may find to be "constructive termination") is an
action fraught with risk, because the employee may file a
discrimination charge with the U.S. Equal Employment Opportunity
Commission (EEOC) challenging the propriety of the employer's
action. Due to the great expense of defending against ADA charges
and the possibility of having to pay the employee's attorneys' fees
and punitive damages, many employers are reluctant to fire or
discipline employees claiming disabilities, even when the
firing or discipline is justifiable.
Workers who believe that they have suffered discrimination, such
as an employer's refusal to implement a proposed accommodation or a
firing due to disability, may file a complaint with the EEOC. Employees filed
15,575 ADA charges against employers in 2006. After
investigation, the EEOC found only 23.4 percent of these charges
presented meritorious claims and resolved most of those
administratively, resulting in $48.8 million in settlements. It also determined, however, that
60.3 percent of charges filed involved "no reasonable cause to
believe that discrimination occurred based upon evidence obtained
If the employee is dissatisfied with the EEOC's resolution, he
may request a "right-to-sue" letter from the EEOC and then file
suit in federal court. The damages available to a wronged
employee under the ADA can be significant, providing a strong
incentive for employees to sue their employers. A court
judgment may include back pay from the time of the discrimination;
compensatory damages of up to $300,000 for such injuries as
emotional distress, inconvenience, and mental anguish;
attorneys' fees; punitive damages of up to $300,000; "front pay"
for anticipated future losses due to the discrimination; and
injunctive relief, such as reinstatement.
By forcing employers to go through a risky, costly, and
time-consuming process to lay off employees who can claim that even
a minor or temporary condition is a disability, ADARA would
undermine a fundamental premise of American labor law: the doctrine
of "at-will" employment. This doctrine states that businesses have
no legal obligation to continue to employ a worker once they have
hired him or her. Businesses employ workers "at will" and can
replace them with another worker at any time.
In other countries, such as France and Italy, companies do not
have the legal right to lay off employees. Instead, workers are
generally entitled to keep their job once they are hired. A company
that hires a worker who turns out to be unproductive or not a
team player faces great difficulty removing that employee.
Similarly, a company that becomes more efficient and needs fewer
workers to get the job done cannot easily tailor its workforce to
the demands of its tasks.
On the surface, this policy appears to help workers, because
once hired they have little concern about losing their jobs.
However, making it difficult for employers to lay off employees
makes them reluctant to hire new employees in the first place.
Businesses do not want to take the risk of being stuck with
unproductive or unneeded workers. France, Italy, and other
countries that severely restrict at-will employment have far higher
unemployment rates than the United States because their less
flexible labor laws discourage employers from creating new jobs. France's current unemployment
rate is higher than the worst unemployment rate recorded
during the past two U.S. recessions.
ADARA would severely weaken the at-will employment doctrine that
makes the American labor market so strong. Under ADARA, most
employees could claim they have an impairment, such as asthma or
chronic stress, and sue if they were either laid off or not hired
in the first place, contending discrimination. Even when
the employment decision had nothing to do with the claimed
impairment, the employer would still face expensive litigation.
This expense would make employers reluctant to hire new workers in
the first place. The ADA has had precisely this unintended effect.
Because it made hiring and firing disabled workers more expensive,
businesses employed fewer individuals with disabilities after the
ADA took effect.
Protecting the ability of disabled Americans to participate in
the economy is a noble goal, but ADARA would damage U.S. labor
markets even as the economy weakens. Congress should protect the
labor market flexibility that causes U.S. employers to create more
jobs than European countries without at-will employment.
Defining Disability Down
Society-including businesses, community organizations,
families, and individuals-does not have unlimited resources to
provide comfort to all those in need. Inevitably, expanding the
concept of disability to include those who do not suffer
limitations stemming from genuine disability will divert
resources-and perhaps compassion-from those who truly need and
deserve them. In this way, ADARA may hurt those who currently enjoy
protection under the ADA. Fewer truly disabled
individuals, for example, would be able to obtain job
reassignment as a reasonable accommodation if reassignment slots
are taken up by non-disabled individuals suffering fleeting
impairments. If no slots are available, employers could lay off
these disabled employees.
Similarly, one goal of the ADA, according its sponsors, was to
put qualified but disabled workers on a "level playing field" with
other workers. If all workers are disabled, however, then the
playing field is once again tilted against those whom
proponents of the original ADA sought to help.
The ADA Restoration Act would water down the definition of
disability, potentially allowing the bulk of American workers to
claim disability status and the protections associated with that
status. Such a scenario would fundamentally undermine the basic
employer-employee relationship, to the detriment of businesses,
responsible and diligent workers, and the public at large. Worst of
all, the ADARA could actually backfire and harm the employment
prospects of the truly disabled by diluting the protections the ADA
Making most workers legally disabled is a radical step that
threatens to have huge impacts on the economy and the social
fabric, by diluting the significance of disability and
compassion for it among the public at large. The consequences of
"defining disability down," weighed against the small or even
negative benefit to those who are truly disabled, counsels great
caution before embarking on such a radical course.
Andrew M. Grossman is
Senior Legal Policy Analyst in the Center for Legal and
Judicial Studies, and James
Sherk is Bradley Fellow in Labor Policy in the Center for Data
Analysis, at The Heritage Foundation.
 See 42 U.S.C. § 12101.
 42 U.S.C. § 12102(2)(A).
 ADA Amendments Act of 2008, H.R. 3195,
110th Cong. § 3 (as passed by House, June 25, 2008).
 See Jeffrey McGuiness, H.R. Pol'y
Ass'n, Misnamed 'ADA Restoration Act' Goes Far Beyond Reversal of
Targeted Court Decisions 4 (2007).
 42 U.S.C. § 12113(b)(5).
 EEOC Guidance, supra note 8.
 Public Comment, Fairfax County Public
Schools, in response to a request for information on the Family and
Medical Leave Act from the Employment Standards Administration,
Wage and Hour Division, of the Department of Labor, Document ID:
 Melinda Caterine, What Is My Case
 Hugo Hopenhayn & Richard Rogerson,
Job Turnover and Policy Evaluation: A General Equilibrium
Analysis, 101 J. Pol. Econ. 915, 938 (1993);Adriana D. Kugler
& Gilles Saint-Paul, Inst. for the Stud. of Labor, Hiring
and Firing Costs, Adverse Selection and Long-term Unemployment,
IZA Discussion Paper 134 (2000).
 Press Release, OECD, OECD
Standardised Unemployment Rate falls to 5.5% in October 2007,
(Dec. 10, 2007), available at /static/reportimages/131B5FFFD9FBE603BC8BA7099D67F0BE.pdf
(showing France has an unemployment rate of 8.1 percent). The
U.S. unemployment rate hit a high of 6.3 percent in June 2003, and
7.8 percent in June 1992.
 Courts have recognized back strain and
headaches as impairments. See Benoit v. Technical
Manufacturing Corp., 331 F.3d 166 (1st Cir. 2003); Sinclair
Williams v. Stark, 2001 U.S. App. LEXIS 5367 (6th Cir.
 Daron Acemoglu & Joshua D. Angrist,
Consequences of Employment Protection? The Case of the Americans
with Disabilities Act, 109 J. Pol. Econ. 915, 957 (2001).