By Belinda Avalos, MD
2008-09-01
Dr. Avalos is Professor of Internal Medicine in the Division of Hematology/Oncology at The Ohio State University.
Editor's Note: This is the third in a series of articles (read the first and second
articles for more information)illustrating how hematologists can become
involved with the presidential election. ASH members are encouraged to
take advantage of and create new opportunities to become involved in
the election and particularly to share their views about health-related
issues with the candidates.
Did you know that patients with cancer and a wide spectrum of other
disorders including epilepsy, diabetes, multiple sclerosis, and HIV are
routinely found not to be disabled and therefore not covered by the
Americans with Disabilities Act (ADA)? That's what an audience of
nearly a thousand heard at the first-ever National Forum on Disability
Issues held in Columbus, OH, on July 26, 2008, the 18th anniversary of
the signing of the landmark ADA into law by George H. W. Bush, the 41st
president. The forum was a non-partisan venue moderated by broadcast
journalist Judy Woodruff that featured Senator Tom Harkin (D-IA) as a
live surrogate for the presumptive Democratic presidential nominee,
Sen. Barack Obama. Sen. John McCain, the presumptive Republican
presidential nominee, appeared via a satellite link from Arizona.
As I sat in the audience noticing those surrounding me with spinal
cord injuries, cerebral palsy, Down syndrome, congenital limb
deformities from thalidomide, blindness, and deafness, I could not help
but wonder how the courts currently define "disabled." Sen. Harkin, a
chief sponsor of the ADA and Sen. Obama's senior disability advisor,
explained how a series of Supreme Court decisions have narrowed the
scope of who is currently considered disabled. Mitigating measures must
now be considered in determining whether an individual's impairment
substantially limits a major life activity. This means that the use of
medications, prosthetics, or other auxiliary devices that enable
individuals to more effectively cope with their physical impairments
can render them ineligible for protection under the ADA. Sen. Harkin
discussed a new bill, the ADA Restoration Act (S. 1881), which he is
co-sponsoring. The bill passed in the House last month by a strong
non-partisan majority and is expected to be voted on soon by the
Senate. This bill aims to reverse many of the Supreme Court's actions
by changing the language of the ADA. Finally, Sen. Harkin sought
support for the Community Choice Act, a bill co-sponsored by him and
Sen. Obama that allows individuals who are eligible for nursing home
services or other institutional care to choose whether they wish to
receive their care in their own home or community or in an
institutional setting.
Next up was Sen. McCain via satellite. He pointed out that the
problem with the ADA is not with the interpretive decisions made by the
Supreme Court, but rather with the original language contained in the
bill. His suggestion was that changes be made to the language. Sen.
McCain also voiced his opposition to the Community Choice Act because
of concerns regarding funding for the program. He instead emphasized
the importance of reforming Social Security to keep it from going
"broke" in order to preserve other supplemental programs, such as SSI
and SSDI.
After hearing both sides, I was struck by the contradiction posed by
much of the existing legislation regarding the disabled. Despite the
many transformations in streets, buildings, and transportation in the
past 18 years that have helped to integrate people with disabilities
into mainstream society, one wonders whether the more successful a
person is at coping with a disability, the less likely they are to be
protected by the ADA. The disabled represent roughly 20 percent of the
voting population with approximately 37 million eligible voters, yet 60
percent are unemployed or under-employed and living below the poverty
level.
About the ADA
The Americans with Disabilities Act took effect July 26, 1992.
Under
the ADA, private employers, state and local governments, employment
agencies, and labor unions are prohibited from discriminating against
qualified individuals with disabilities in job application procedures,
hiring, firing, advancement, compensation, job training, and other
terms, conditions, and privileges of employment.
An individual with a disability is defined by the ADA as a person who:
- Has a physical or mental impairment that substantially limits one or more major life activities
- Has a record of such an impairment
or
- Is regarded as having such an impairment
An employer is required to make an accommodation to the known
disability of a qualified applicant or employee if it would not impose
an "undue hardship" on the operation of the employer's business.
Employers may not ask job applicants about the existence, nature, or severity of a disability.
Source: The U.S. Equal Employment Opportunity Commission
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