Testimony before The
Committee on Health, Education, Labor, and Pensions, United States
Andrew M. Grossman
Senior Legal Policy Analyst
Center for Legal & Judicial Studies
The Heritage Foundation
My name is Andrew Grossman, and I am Senior Legal Policy Analyst
at The Heritage Foundation. The views I express in this testimony
are my own, and should not be construed as representing any
official position of The Heritage Foundation.
My testimony today concerns what may seem to some a narrow and
arcane topic: the definition of "disability" in the compromise
Americans with Disabilities Act Amendments Act ("ADAAA," H.R. 3195)
that passed the House of Representatives in June and is now before
this august chamber. It is anything but. As evidenced by the very
fact of this hearing, the precise definition is extremely
important. It affects the rights and responsibilities of millions
of individuals and employers and, over the long term, societal
attitudes toward disability. In addition, the exact workings of the
Americans with Disabilities Act ("ADA"), including this definition,
impact the U.S. economy and job creation. This topic is worthy of
much attention and consideration for all of these reasons, and I
applaud the Committee for taking the time to address it and to
consider the comments of those testifying today.
The definition of disability is an essential piece of the ADA's
legal protections against discrimination. The ADA prohibits
employers with more than 15 employees from discriminating "against
a qualified individual with a disability because of the disability
of such individual in regard to job application procedures, the
hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and
privileges of employment." Discrimination includes "not making
reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a disability
who is an applicant or employee, unless such covered entity can
demonstrate that the accommodation would impose an undue hardship
on the operation of the business of such covered entity." Thus,
whether an individual is disabled determines whether an employer
must investigate and implement accommodations and whether an
employer is subject to liability under the ADA for failing to do
It is particularly important, then, that the definition of
"disability" be clear so that employers can meet their obligations
under the law with minimal confusion and expense. Under
current law, a disability is "(A) a physical or mental impairment
that substantially limits one or more of the major life activities
of such individual"; "(B) a record of such an impairment; or "(C)
being regarded as having such an impairment." This statutory text
has been applied by the courts in a way that is considerably
broader than the common usage of the word "disability." Thus,
ailments such as erectile dysfunction and high cholesterol have
qualified as disabilities. Nonetheless, the courts, following the lead
of the Supreme Court, have been relatively consistent in their
adjudication under the ADA, providing employers and the labor and
disability bars with some notice of what impairments are likely to
be covered by the ADA. Though a small business lacking inside
counsel will usually have to consult outside attorneys to determine
whether an employee claiming a disability is covered by the ADA
and, if so, what accommodations are reasonable, in many cases, the
attorneys are able to render an opinion on these issues within a
few days at modest cost-around $1,000 in typical cases. Any change
to the definition of disability in the ADA must be made carefully,
because it will necessarily upset the reliance of employers and
their attorneys, increasing the costs of compliance as well as
their uncertainty and risk of liability.
Though some media reports characterize the definition of
"disability" in the current version of the ADAAA as a compromise, it is
far from modest. It represents a radical expansion of the ADA that
would likely have far-reaching effects and unintended consequences.
The provision's great breadth, however, is obscured somewhat by its
structure. Unlike prior proposed amendments to the ADA, the
ADAAA retains the ADA's three-prong core definition of
"disability," making only one small change of arguably no
Unlike the current ADA, however, the ADAAA further defines two
of these terms. Under the bill, "a major life activity" includes
nearly anything an individual might 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." Though
this definition might seem unduly broad to observers unfamiliar
with disability law, it is only slightly broader than current law,
under which sexual relations and sleeping, among many others, have
been found to be major life activities.
The greatest change in the ADAAA is that it would define
"substantially limits" to mean "materially restricts" for the
purposes of the first prong of the definition of disability. Thus,
any impairment that "materially restricts" a person from performing
any major life activity, or impedes the operation of any major
bodily function, would constitute a disability for the purposes of
Further, the ADAAA provides several "rules of construction
regarding the definition of disability" that would further broaden
its scope. These mandate that the word "shall be construed broadly"
and specifically extend its meaning to encompass impairments that
are "episodic or in remission," including those that are
temporary. In addition, overturning the Supreme
Court's decision in Sutton v. United Air Lines, Inc., 527
U.S. 471 (1999), the bill requires that "[t]he determination of
whether an impairment substantially limits a major life activity
shall be made without regard to the ameliorative effects of
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. 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.
Finally, the ADAAA strikes two legislative findings of the
original ADA that the Supreme Court has relied upon to determine
whether Congress intended to include certain impairments within the
Act's coverage. One finding declared the number of disabled
Americans-and thus, presumably, the number intended to be covered
by the Act-to be 43 million at the time of its enactment, and
growing. The second provision, echoing much civil
rights law and jurisprudence, declared individuals with
disabilities to be "a discrete and insular minority" subject to
discrimination, implying that those not historically subject to
such discrimination are not "disabled."
The purpose of these changes, according to the language's
drafters, is to overturn the Supreme Court's decisions in
Sutton, Toyota Motor Manufacturing, Kentucky, Inc. v.
Williams, 534 U.S. 184 (2002), and related cases that served
to limit the coverage of the ADA's protections. In
Sutton, as mentioned above, the Court held that mitigating
measures should be considered in determining whether an individual
is disabled. In Williams, it held that "substantially
limits" means "prevents or severely restricts," requiring that, to
qualify as disabled, "an individual must have an impairment that
prevents or severely restricts the individual from doing activities
that are of central importance to most people's daily lives."
The Court also held that, under this formulation, the impairment's
impact must "be permanent or long term." Without question, the
ADAAA rejects these precedents.
Without, at this point, commenting on the merit of that
intention, I find great reason to doubt that the ADAAA's proposed
replacement for the current statutory understanding is consistent
with Congress's and the ADA's expressed purpose to provide "a clear
and comprehensive national mandate for the elimination of
discrimination" and "clear, strong, consistent,
enforceable standards addressing discrimination."
Rather, the ADAAA's definitional text, though undoubtedly sweated
over by a great many lawyers and interested parties, fails to
provide clear guidance to the courts, the Equal Employment
Opportunity Commission ("EEOC"), which would be empowered to
interpret the definition in regulation, or employers.
The original ADA's definition of disability, as the courts were
quick to recognize, is no exemplar of clarity, but the Act's
structure and findings allow for clear and consistent
determinations in the bulk of cases and provide guideposts for
interpretation in closer cases. This, in turn, has allowed
the accumulation of a large body of coherent case law interpreting
the ADA's scope and coverage. The result is that those who have
rights and obligation under the Act-including individuals with
impairments and most employers-can rely on this body of
interpretation in conducting their affairs.
Any attempt to overturn Sutton and Williams
would necessarily upset this case law and parties' expectations
under it, but the ADAAA's language is particularly pernicious in
that it supplies a new and untested vague standard for determining
disability and mandates broad construction of this standard, while
compounding the uncertainty of these commands by excising the
guideposts that the courts have long relied upon in interpreting
The use of the phrase "materially restricts" is puzzling in
several ways. The foremost question, of course, concerns the
continued vitality and relevance of the phrase "substantially
limits," which would remain in the statutory text even though a new
definition-"materially restricts"-is imposed upon it. The phrase
cannot be a mere semantic vessel, for its presence surely has some
meaning. It is a standard canon of interpretation that statutory
text should not be read so as to render portions of it
superfluous. This reserved meaning, in turn,
necessarily affects the way that "materially restricts," which
would only partially supersede it, must be read.
As for "materially restricts" itself, recourse to the case law
provides no guidance. The drafters of this provision apparently
decided against adopting any standard that had seen significant use
in the law or the literature. A search of all federal case law
since the enactment of the Rehabilitation Act of 1973 for this and
related terms (e.g., "material restriction") retrieves a total of
two cases concerning disabilities, one a bankruptcy and the other a
district court decision. Neither sheds much light on these terms
save for that materiality, in both instances, is mentioned as
relating to something other than its subject. For example, the
bankrupt's carpal tunnel syndrome was a material restriction of her
ability to work as an unskilled laborer. A search through the
output of the state courts is similarly unhelpful. Two New Jersey
courts have touched on the term (it is a paraphrase of a provision
of the state's worker's compensation statute), both construing
materiality as concerning a claimant's ability to work-that is, to
receive worker's compensation, a worker must suffer an impairment
that "lessen[s] to a material degree" his or her working ability.
Federal statutory law provides no prior use of "materially
restricts" or any similar term, and the several appearances of
these terms in the Code of Federal Regulations concern tax law and
various types of contractual agreements.
Lacking any prior use from which to draw meaning, a court might
turn to the dictionary to ascertain the meaning of a term.
Webster's Third New International Dictionary, that
regularly used by the Supreme Court, informs that to be
"material" is "being of real importance or great consequence." For
this usage, it offers four synonyms: substantial, essential,
relevant, and pertinent. The first three explain too little: The
ADAAA, after all, dilutes "substantial" and rejects "essential" as
too narrow, for it would be akin to Sutton's "prevents."
The other two, however, explain to much: Any restriction at all of
a major life activity would be relevant or pertinent to that
activity. Decisions in a great many cases could hinge on which one
of these four words a court chose to apply. In this way, the
ADAAA's definition of "disability" utterly fails to cabin judicial
discretion, an avowed aim of its drafters.
The legislative history-to which some judges resort when
statutory language, as here, is vague-provides no clear answer
either. It counsels that "materially restricts" is "intended to be
a less stringent standard to meet" than that propounded in
Williams. Elsewhere, the drafters advise that
"'materially restricted' is meant to be less than a severe or
significant limitation and more than a moderate limitation, as
opposed to a minor limitation." The drafters then refer to
the ADAAA's rule of construction that "To achieve the remedial
purposes of this Act, the definition of 'disability'…shall
be construed broadly." Yet, as discussed above, the relevant
guideposts in this inquiry-the approximate proportion of the
population Congress intended to be covered by the Act and the
nature of the discrimination suffered by that population-would be
excised from the law. Without these touchstones to reality,
regulators and the courts will find it difficult or impossible to
conceive any coherent limiting principle that works to affect only
"the elimination of discrimination" against the disabled without
interfering in other relationships.
Some supporters of ADAAA recognized the opaqueness of the bill's
text and, fearful that courts might actually attempt to
interpret it verbatim and reach an overly broad, though not
precluded, result, inserted this in the legislative record:
"Persons with minor, trivial impairments such as a simple
infected finger are not impaired in a major life activity,'' and
consequently those who had such minor and trivial impairments would
not be covered under the [original] ADA.
We believe that understanding remains consistent with the
statutory language and is entirely appropriate, and we expect the
courts to agree with and apply that interpretation. If that
interpretation were not to hold but were to be broadened improperly
by the judiciary, an employer would be under a federal obligation
to accommodate people with stomach aches, a common cold, mild
seasonal allergies, or even a hangnail. Consequently, we want to
make clear that we believe that the drafters and supporters of this
legislation, including ourselves, intend to exclude minor and
trivial impairments from coverage under the ADA, as they have
always been excluded.
It is a small relief that several drafters of this legislation
"believe" that it would not require an employer to accommodate an
individual with a hangnail, but nothing in the actual legislative
text, however, compels any court to reach that result. Indeed, the
text seems to require otherwise; if, as discussed above, minor
visual impairments that can be mitigated with standard eyeglasses
are not disabilities, than presumably similarly minor impairments
that cannot be so mitigated would be disabilities-the legal
doctrine is known as expressio unius est exclusio
alterius, or "the expression of one thing is the exclusion of
another." The inevitable result: arbitrary, inconsistent case law
and potentially debilitating legal uncertainty for many
To this contention, the legislation's supporters respond that
their aim is actually the quite modest shift of focus from
disability to discrimination:
Too often cases have turned solely on the question of whether
the plaintiff is an individual with a disability; too rarely have
courts considered the merits of the discrimination claim, such as
whether adverse decisions were impermissibly made by the employer
on the basis of disability, reasonable accommodations were denied
inappropriately, or qualification standards were unlawfully
Within this contention, though, is its own rebuttal. A finding
of disability, under current law a prerequisite to an ADA
complaint, is additionally a prerequisite, in the logical sense, to
addressing a claim of discrimination. An example: Polly has, in
recent months, increasingly missed work without providing notice to
her employer, Donald. She informs Donald that she suffers from
major depression and requests two accommodations: a job coach and
greater flexibility in taking days off without providing advance
notice. Even if these accommodations are reasonable, Donald's
refusal to provide them may not constitute discrimination if Polly
is not disabled. Under the empty standard proposed in the ADAAA,
but certainly not under current law, Polly's occasional fatigue and
feelings of self-doubt could well be sufficient to render her
impairment a disability and thus Donald's refusal to accommodate
discrimination. Resort to the question of Polly's qualifications or
the "business necessity" of showing up does not avoid this
inquiry. Logically, it is impossible to reach the
"merits" of a discrimination claim without determining the
predicate for that discrimination: whether the individual is, or
has been regarded as, a member of the protected class. Thus, any
change to the definition of disability made to encourage courts to
hear the merits of a disability claim will necessarily alter the
substance of that claim. In this way, ADAAA may effect a far
broader change than even its supporters claim or realize.
The impact of this change on employers could be severe. It is
evident that, under the ADAAA, accommodation costs would rise, as
more workers become entitled to more accommodations. That, after
all, is the point of the legislation. But there are still more
expenses, many of which would be due to the current legislation's
lack of clarity. At the same time that a much larger portion of the
workforce would fall under the ADA's protections, the law would
also become far more uncertain, driving up compliance costs and
Among employers, small businesses are likely to suffer
disproportionately, as is usually the case when there is regulatory
complexity or legal uncertainty. Larger firms have the structure in
place-general counsel offices, compliance officers, and disability
consultants-to determine their legal obligations and perform them
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 entire workforce.
For all employers, legal uncertainty, especially concerning the
risk of liability for discharging an employee, undermines the
doctrine of at-will employment. Under ADAAA, 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 and be far less
likely than today to prevail on a motion for summary judgment
relatively early in the litigation. The result: Employers would be
less willing to hire new employees and job growth would be reduced.
This has been the consistent pattern in countries that more greatly
restrict at-will employment by providing greater job protections to
The ADAAA would also increase employee abuses under the ADA. Due
to legal uncertainty, employers would likely be even more loathe
than they are today to contest borderline claims of disability in
the courts, for fear of incurring large legal expenses and
potentially large liabilities. This is another consequence of
combining vague legal rules that make it difficult to evaluate the
merit of litigation with relaxed limitations on coverage.
This concern is not just hypothetical; there is strong evidence
that some workers have taken advantage of similar protections
recently enacted by Congress. Many workers, for example, have
abused the Family and Medical Leave Act ("FMLA"), which requires
covered firms to provide their employees with up to 12 weeks of
unpaid leave per year, with their job guaranteed during that time,
that may be used when an employee suffers a serious health
condition or is caring for a family member who does. Though most
workers use the leave allowance only when necessary, many use it
simply to take time off at will, such as to avoid rush hour traffic
and enjoy more frequent three- and four-day weekends.
As my Heritage Foundation colleague James Sherk has chronicled
in great detail, it is coworkers who often bear the greatest burden
of FMLA abuses. Conscientious employees suffer each time they have
to cover the work or work unscheduled overtime when a coworker
abuses FMLA. In many instances, employees also suffer reduced pay
and bonuses due to FMLA abuse.
Slower job growth leading to reduced potential employment would
be most businesses' response to any change in the legal environment
that increases the cost of labor-a troubling result at a time when
economic growth has slowed and unemployment is already inching
upwards. If Congress nonetheless feels compelled to expand the
ADA's protections to an ever-larger body of workers, it should do
so in a way that imposes as little collateral damage as possible by
putting forward clear tests and definitions and reducing risk and
uncertainty for both employers and their workers.
It is an unfortunate and, to date, underappreciated risk that
the ADAAA's radical expansion of ADA coverage may injure those who
subject to severe disabilities who are undisputedly covered under
the current law. A common accommodation for disabled workers, for
example, is reassignment to a position that less physically taxing,
and no doubt, in certain industries, many employees, both disabled
and not, wish to hold these positions. If all available slots are
held by mildly disabled employees or employees abusing the ADAAA's
protections, truly disabled individuals will have fewer
alternatives available and, if unable to perform their current
jobs, may be laid off, because creating a new position is not
required by the ADA. Overall, it is likely that fewer resources
would be available under the ADAAA to accommodate severely disabled
It should also be noted that the ADA has not been an unqualified
success for individuals with disabilities in the workforce. Though
no single explanatory theory is dominant, the evidence is strong
that the disabled earn less and work far less than they did prior
to enactment of the ADA, a period during which those who do not
identify as disabled increased their workforce participation and
earnings. A number of economists, including MIT's
Daron Acemoglu, blame the ADA for the reduced opportunities of the
disabled. Other critics contend that the ADA has
done little more than produce occasional windfalls for plaintiffs
and attorneys. According to Acemoglu, as of 1997,
employers faced 40,000 lawsuits per year under the ADA and spent,
on average, $167,000 to defend themselves. Labor markets are
complex, and it is difficult to intervene in them to produce
specific results without encountering unexpected consequences. The
risk that a broader ADA will redound to the detriment of those it
is meant to protect cannot, based on the data, be overlooked or
Many of the problems that I have identified with the approach of
this legislation can be corrected through more diligent redrafting,
though those economic effects stemming from the bill's central
purpose-expanding the ADA's reach-may require changing the
substance of the legislation in significant ways. To both those
ends-fixing and reworking the current legislation-I offer the
1. The term "materially restricts" is not readily
susceptible to any apparent meaning and should be removed from the
legislation. Rather than propound a vague definition and then
demand that courts construe it broadly, Congress should put forward
a clear definition (or retain the current one) and rely on the
courts to employs the standard canons of construction to give
statutory text meaning. If it is Congress's aim to expand ADA
coverage so that it includes the majority of Americans or more, it
should do so explicitly, and accept the consequences, rather than
foisting the task on the courts.
2. The current three-prong definition of
"disability" is valuable, for all the case law and interpretive
history built upon it, and significantly changing or modifying it
will destroy this value. Congress should be very wary of enacting
sudden, dramatic changes that would throw the law into turmoil. The
ADAAA, as it currently stands, would be such a change.
3. The legislative findings that the ADAAA would
strike from the ADA have proven to be an essential tool for courts
attempting to apply the ADA's principles and often vague language
to real-world disputes. If Congress believes that these provisions
misstate its intentions, it should fix them rather than strike
them. The ADA's findings should continue to state Congress's best
estimate of how many Americans it intends to be covered by the
4. Though doing so will have adverse economic
consequences, reversing Sutton can be achieved in the
context of a much more modest bill that does not otherwise modify
the ADA's three-prong definition of "disability."
5. Granting the EEOC power to promulgate regulations
under the non-article sections of the ADA will advance legal
certainty and improve compliance. This step alone may be sufficient
to accomplish much of what drafters of the ADAAA hope that it will
6. The subsection on mitigating measures, as
drafted, excludes ordinary eyeglasses and contact lenses,
recognizing that mild visual impairments, such as are suffered by
millions of Americans, are not disabilities. Congress should extend
this reasoning and, at the least, exclude from the mitigating
measures rule other prevalent ameliorative devices, such as certain
types of hearing aids and joint braces.
The ADA Amendments Act, as currently drafted, is so vague that
it is impossible to say with any degree of certainty that courts
would uniformly decline to find such minor impairments as
hangnails, tennis elbows, and infected cuts to be disabilities. The
consequences of this confusion in the law would be significant,
affecting millions of businesses and their employees, as well as
the health of the national economy and American businesses'
international competitiveness. If Congress's intention is to
radically expand the coverage of the ADA, it should be clear in its
mandates and do so with full transparency, accepting responsibility
for its policy choices.
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institutional position for The Heritage Foundation or its board of
U.S.C. § 12112(a) (2008).
U.S.C. § 12112(b)(5)(A) (2008).
Arrieta-Colon v. Wal-Mart Puerto Rico, Inc., 434 F.3d 75 (1st Cir.
2006); Christian v. St. Anthony Medical Center, Inc., 117 F.3d
1051, 1053 (7th Cir. 1997).
See, e.g., Bragdon v. Abbott, 524 U.S. 624, 631 (1998).
E.g., Karoun Demirjian, Bill Clarifying Legal Meaning of
'Disabled' Passes in House, CQ Today, June 25, 2008.
E.g., H.R. 3195, 110th Cong. (as introduced, 2007).
H.R. 3195, 110th Cong. § 4 (as passed by House, June 25,
Scheerer v. Potter, 443 F.3d 916, 919 (Wis. 2006); Pack v. Kmart
Corp., 166 F.3d 1300, 1304-05 (Okla. 1999).
See H. Rep. No. 110-730 Part 1, at 14 (2008).
See, e.g., Sutton v. United Air Lines, Inc., 527 U.S. 471,
484-88 (1999) ("Had Congress intended to include all persons with
corrected physical limitations among those covered by the Act, it
undoubtedly would have cited a much higher number of disabled
persons in the findings.").
Id. at 494-95 (Ginsburg, J., concurring) ("In short, in no
sensible way can one rank the large numbers of diverse individuals
with corrected disabilities as a 'discrete and insular
H. Rep. No. 110-730 Part 1, at 6 (2008).
Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S.
184, 198 (2002).
H.R. 3195, 110th Cong. § 2(b)(1) (as passed by House, June 25,
2008) (emphasis added); Americans with Disabilities Act
§§ 1(b)(1), (2), 42 U.S.C. §§ 12101(b)(1),
H.R. 3195, 110th Cong. § 6 (as passed by House, June 25,
2008). This provision overturned another holding of Sutton.
Sutton, 527 U.S. at 479 ("Most notably, no agency has been
delegated authority to interpret the term 'disability.'").
See, e.g., Sutton, 527 U.S. at 482.
See, e.g., CBOCS West, Inc. v. Humphries, 128 S.Ct. 1951,
1964 (2008) (Thomas, J., dissenting).
Hughes v. Richardson, 342 F.Supp. 320, 332 (W.D. MO 1971); In re
Heath, 371 B.R. 806, 813 (Bkrtcy E.D. Mich. 2007).
371 B.R. 806 at 813.
The relevant section: "Disability permanent in quality and partial
in character" means a permanent impairment caused by a compensable
accident or compensable occupational disease, based upon
demonstrable objective medical evidence, which restricts the
function of the body or of its members or organs; included in the
criteria which shall be considered shall be whether there has been
a lessening to a material degree of an employee's working ability.
N.J. Stat. Ann. § 34:15-36 (2008).
Brunell v. Wildwood Crest Police Dept., 176 N.J. 225, 237 (2003);
Mercado v. Atlantic States Cast Iron Pipe Co., 2008 WL 723773, *3
E.g., Williams, 534 U.S. at 196.
H. Rep. No. 110-730 Part 1, at 6 (2008).
Id.; H.R. 3195, 110th Cong. § 3 (as passed by House,
June 25, 2008).
H. Rep. No. 110-730 Part 2, at 30 (2008).
H. Rep. No. 110-730 Part 1, at 8 (2008).
See 42 U.S.C. §§ 12112(b)(4), (6).
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
See generally, James Sherk, The Heritage Foundation, Use and
Abuse of the Family and Medical Leave Act: What Workers and
Employers Say (2007), available at
Richard Burkhauser & David Stapleton, Introduction, in
The Decline in Employment of People with Disabilities 3-4
Id. at 16-17; Daron Acemoglu & Joshua D. Angrist,
Consequences of Employment Protection? The Case of the Americans
with Disabilities Act, 109 J. Pol. Econ. 915, 957 (2001).
Ruth Colker, The Disability Pendulum: The First Decade of the
Americans with Disabilities Act 71-72 (2005).
Acemoglue & Angrist, supra note 35, at 920.