No, you haven’t missed another law.  But this is another proposal for a big change in employment law.  Senator Clinton isn’t  a sponsor of this bill, but she is an active supporter of it.

We all know about the Americans with Disabilities Act.  Why do we need the ADA Restoration Act?  Of course, there’s debate over whether we need it or not, but it’s fair to say that the ADA hasn’t been nearly the significant piece of employment legislation we thought it would be when it was first enacted.  The U.S. Supreme Court has decided quite a few cases that have had the effect of limiting the scope of the law.  In particular, “disability” has been interpreted to be much narrower than I think anyone anticipated early on.  That’s been good for employers but frustrating for disability advocacy groups and other employee groups.   Thus, the proposed ADA Restoration Act.

This proposal would:

–Redefine the term “disability” to mean “a mental or physical impairment.”  Now, the definition is “a mental or physical impairment that substantially limits a major life activity.”  And it’s that latter part of the definition the Supreme Court has used to narrow the meaning of “disability.”  Without that qualifying language, it’s fair to say that a lot of things not disabilities today would become disabilities, e.g., carpal tunnel.  One might argue that the entire workforce would become disabled.  In any event, this would surely mean greater responsibility on the part of employers to provide reasonable accommodations and a significant increase in disability discrimination cases.

–Forbid employers from considering the effects of mitigating measures an individual uses to manage his/her impairment.  To take a simple example, the use of eye glasses or contacts can correct bad eyesight.   To take another one, blood pressure medication can control high blood pressure.  If the ADA Restoration Act were to pass, these mitigating measures couldn’t be taken into account, and presumably. bad eyesight and high blood pressure would become disabilities.

–Shift the burden of proof in determining job qualification in disability discrimination cases from the employee to the employer.  Currently, an employee must show that he/she is qualified to perform a job with or without a reasonable accommodation.  Under this proposal, an employer would have to prove the employee is not qualified.

It’s difficult to imagine this law being enacted in its entirety (just as it’s difficult to imagine the Civil Rights Act of 2008 being enacted in its entirety).  But if any part of it is enacted, the current version of the ADA will be no more.  It’ll still take some court cases to interpret the new version (and ultimately decisions from the Supreme Court), but it’s clear at this point where Senator Clinton stands on this proposed legislation.