Article explores ADA "Catch-22"

FOX Business printed this article from MarketWatch that gets at some of the nuances of why the ADA needs the proposed amendments to get its effectiveness back after some bad decisions by the U.S. Supreme Court.

A series of Supreme Court decisions beginning in the late 1990s narrowed the definition of disability and laid the groundwork for lower courts to do the same. That means many people who suffer from a chronic disease but manage their illness well aren't considered disabled and therefore aren't covered by the law -- even if an employer fires or refuses to hire them because of their disease.

The courts' decisions have resulted in a Catch-22 for people with a range of disabilities, including diabetes, cancer, epilepsy, muscular dystrophy and mental illness, said Jennifer Mathis, deputy legal director for the Bazelon Center for Mental Health Law in Washington.

"You can be disabled enough to be fired but not disabled enough to sue," she said.

"What tends to happen in ADA cases, particularly in the employment arena, where most of the problems have occurred, is people's medications will be used against them in considering whether they have a disability that rises to the level of the protections of the ADA," Mathis said.

That soon may change. Concern about the ADA has been percolating for years among disability groups and some lawmakers, but efforts to expand coverage and overturn the Supreme Court's interpretation of the law have won broad support only recently. The new consensus culminated in June, when the House of Representatives voted 402 to 17 to pass a compromise bill called the American with Disabilities Act Amendments Act.

Last week, Sen. Tom Harkin, D-Iowa, and Sen. Orrin Hatch, R-Utah, introduced a similar bill in the Senate. It has the support of more than 60 co-sponsors, including presidential candidates Barack Obama and John McCain. More than 200 organizations, including the U.S. Chamber of Commerce and the National Association of Manufacturers, back it as well.

The bill would help some of the three million Americans, or 1% of the population, who suffer from epilepsy, said Sandy Finucane, vice president legal and government affairs for the Epilepsy Foundation in Landover, Md.

"If you're not covered by the ADA because your seizures are periodic, or they don't occur frequently or are controlled by medication, then you're not protected from unfair discrimination," she said.

Many employers who know about an employee's epilepsy are afraid of seizures, even though many patients report their condition doesn't affect their workday, she said. "It's very clear that the reason many people are not hired is because of fear and stigma and not because they can't do the job."

That's material because people with epilepsy have an unemployment rate of 25%, about five times the national average, and the figure is nearly 50% for those whose seizures aren't well controlled, Finucane said. Those numbers haven't changed in 30 years.

"We need to do a lot more work to help get people with disabilities into the work force," she said. "We think that was one of the goals of the ADA, and hopefully we can move forward with that goal."