Activists Fight to Rewrite Disabilities Act

Stephen Orr has a small insulin pump attached to his belt. It's in a leather case, about the size of a cell phone. The pump sends insulin through a plastic tube that's thinner than a piece of spaghetti and threaded under his skin.

With insulin and devices like this, Orr has been able to control his diabetes and keep working at the job he loves — as a pharmacist. Until, that is, he got a new boss at the Wal-Mart in tiny Chadron, Neb.

Orr used to close his pharmacy for 30 minutes every day at noon, and eat lunch. That helped him control his diabetes. The new boss ordered him to instead stay in the pharmacy and eat between helping customers. Orr tried, but his blood glucose levels fell. He got tired easily.

"When he came in and fired me," Orr says, "I asked him why I was being fired and he told me straight out: Because you're diabetic."

Protected by the Americans with Disabilities Act?

When Orr was fired, he sued under the Americans with Disabilities Act. But a judge threw out his case, agreeing with Wal-Mart that Orr should not be considered disabled under the ADA. The reason: With his insulin, he could control his diabetes. A spokeswoman for Wal-Mart notes that the company follows the ADA and all employment laws.

When the ADA became law in 1990, it opened the world for people with disabilities. The law banned discrimination on the basis of disability in the workplace and in public places. It made things like wheelchair ramps and lifts on buses common. But courts have struggled to make sense of who should be counted as disabled under the law.

Defining 'Disability'

The ADA defines a disability as something that limits a major life activity. The Supreme Court in 1999 said people who could control their conditions — with medications and devices like insulin pumps — might not be considered disabled. Earlier this year, a court in Alabama ruled that a man with mental retardation did not count as disabled.

That has frustrated the disability civil rights groups that won passage of the ADA. They want a new ADA, even though Congress is not so sympathetic to passing civil rights laws anymore, and rewriting the law runs the risk of giving opponents a chance to further water it down.

"We are prepared to take those risks," says House Majority Leader Steny Hoyer. "Certainly I don't think we're going to do anything more to undermine the ADA than the courts have done, which we're trying to correct."

Hoyer says Congress always intended the ADA to cover conditions such as diabetes, epilepsy and mental retardation. The Maryland congressman was a key proponent of the original bill in 1990, and he is an author of the rewrite.

Business Concerns

But business groups worry that any rewrite is likely to broaden who is called disabled — way beyond what was intended by the original ADA.

"The law was passed to cover people who truly had problems pursuing major life activities," says Randy Johnson, vice president of the U.S. Chamber of Commerce for labor, immigration and employee benefits issues. Johnson says the courts got it right when they tried to make sense of the ADA's broad definition of who is disabled.

"It wasn't intended to cover people who had minor problems that could be correctable through minor fixes, such as glasses or drugs," he says.

Johnson says big companies are generally satisfied with the way the ADA works now. Groups representing small employers have been more likely to say the law creates burdens for their businesses. But if the ADA Restoration Act moves forward, business groups, big and small, will seek other changes. One might be to force someone who loses a discrimination lawsuit to then pay the attorneys' fees of the business sued. Or to give businesses extra time to fix problems before they get sued.

And that's the risk for disability civil rights groups. Compared with when the ADA became law in 1990, there's much less interest in Washington in passing such sweeping civil rights law. There has never again been such bipartisan consensus on civil rights since Congress passed and President George H.W. Bush then signed the ADA in a joyous celebration before hundreds of activists on the White House lawn.

One place where there is support for the new ADA Restoration Act is in the House of Representatives. More than half the members support the bill, including key Democrats and Republicans. But there is not the same support now in the Senate or from the White House.

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