forearms on some intervening surface, such as another ladder, in order to reach his work.

In 1999, McClure received a job offer to be an electrician at a General Motors assembly plant. During a pre-employ-ment physical exam, the doctor noted McClure’s inability to fully raise his arms. He asked McClure how he could function on the job, to which McClure replied he would stand on a ladder, etc. Even though other electricians at the plant used ladders, the doctor wouldn’t approve McClure for employment.

McClure challenged the call. GM countered that even though it had withdrawn its job offer because of McClure’s physical limitations, he did not have a disability that qualified him for ADA protections.

Court sides with business

Returning to the framers’ intent:

Efforts to restore the ADA’s protections

by Bill Norman

When Congress passed the Americans with Disabilities Act in 1990, its intent was to prevent discrimination, in all aspects of society, against people with disabilities.

Now some members of Congress and the disability community say recent U.S. Supreme Court decisions have negated protections afforded by the ADA, and those protections need to be restored.

Sponsors of the ADA Restoration Act (H.R. 3195 in the House and S. 1881 in the Senate), being debated in Congress as Quest went to press, contend that language in the original ADA statute requires the high court to focus its attentions on defining who is disabled — not on discrimination actually experienced by people with disabilities.

House Majority Leader Steny Hoyer (D-Md.) co-sponsored H.R. 3195. “The point of the ADA is not disability; it is the prevention of wrongful and unlawful discrimination,” he said.

Hoyer and other ADA Restoration Act co-sponsors say the U.S. Supreme Court decided incorrectly when it recently ruled that people with dis-

abilities who can function well due to their use of “mitigating measures” (such as assistive devices or medicine) are not protected by the ADA.

The court said a person’s impairment must substantially limit his/her physical function “in the present moment.” If a device or medication alleviates that impairment in the present moment, the person no longer is considered disabled, said the court.

Man with FSHD bumps
heads with the courts

Carey McClure of Griffin, Ga., who has facioscapulohumeral muscular dystrophy, has firsthand experience with this narrow interpretation.

McClure, 46, an electrician for more than 20 years (now retired due to a back injury), has difficulty raising his arms above shoulder level. When he had to work above his head in the course of his job, he improvised in a variety of ways. He would “throw” his arms over his head so he could reach the work area; or stand on a ladder, stool or hydraulic lift so the work was below shoulder level; or rest his

In 2003, the Court of Appeals for the 5th Circuit sided with GM, focusing exclusively on whether McClure should be considered disabled, not on whether GM had discriminated against him.

The court found, in part, “… [McClure’s] ability to overcome the obstacles that life has placed in his path is admirable. In light of his ability, however, we cannot say that the record supports the conclusion that his impairment substantially limits his ability to engage in one or more major life activities.”

“It was terrifying,” McClure said. “I had had to quit my current job to take the GM exam [in Texas]. I had sold my home and everything was packed to move. I wound up losing two jobs.

“All GM had to do was give me my chance. They could have cut me loose after 90 days if I didn’t work out.”

McClure has now testified before the House in support of the ADA Restoration Act. Buttressed by his testimony and others, both House and Senate versions of the Restoration Act have three main action components:

 

n amend the definition of “disability” so it fully covers the people with disabilities that Congress in 1990 meant to protect;