The Work

September 17, 2008 6:07 PM

Proskauer Partner Behind New Civil Rights Bill

Posted by David Bario

The House of Representatives today passed a major civil rights bill amending the landmark 1990 Americans with Disabilities Act. Backers say the new bill restores the law's original intent by rejecting strict definitions of what constitutes a disability that had developed over the past decade.

An unusual coalition of business groups and disabilities representatives negotiated the amendments over a series of meetings earlier this year. The bill, called the ADA Amendment Act of 2008, passed the Senate last week. If signed by President Bush--which is expected--it will become effective in January 2009.

For some background and a hint at what kind of litigation the new law might spark, we phoned Lawrence Lorber, a Proskauer Rose labor and employment partner who represented the Chamber of Commerce in negotiations over the bill. As he sat on the tarmac waiting for a delayed flight to leave Washington, D.C., he described the wrangling that paved the way for the bill's passage.

How did negotiations over the bill get started?
Congressmen Steny Hoyer and Jim Sensenbrenner, who both considered themselves fathers of the ADA, wanted to get a bill this year. They reached out to the Chamber of Commerce to see if they could host discussions between business representatives and disabilities representatives to see if there was some sort of consensus that could be presented to Congress. The meetings went on for five months--extraordinarily detailed meetings with top people on both sides, led by [Georgetown University professor] Chai Feldbloom on the disabilities side, and by the Chamber of Commerce, the National Association of Manufacturers, the Human Resources Policy Association, and the Society for Human Resource Management on the business side. Incidentally, many of the meetings took place at the Proskauer office in Washington--because we have nice conference rooms.

How did you wind up representing the Chamber of Commerce?
For about three years I've chaired the Chamber's Equal Employment Opportunity committee. I testified for them last year in opposition to an earlier bill that was proposed to amend the ADA that was a much stronger, more strident bill.

What will the new amendments accomplish?
What it will do is restore the ADA to the status it had when it passed, before a series of Supreme Court decisions pretty significantly narrowed the scope of coverage of who was disabled under the act. The bill states that four of the court's decisions will no longer be deemed precedents, and it sets forth criteria which state that anyone who has a substantial limitation of a major life activity will be deemed to be disabled. It's a renewal of who is disabled and an expansion of who is regarded as impaired, but the burden of showing that will remain with the plaintiffs. What this is going to do is make the ADA a reasonable accommodation law, and hopefully take things out of the courts.

But won't it spark new litigation?
There may be an initial flurry of new lawsuits. But many of the largest employers are already doing this, and in the end employers will come to understand what is entailed and what they have to do to provide reasonable accommodation. Being coldly realistic--and I was a lawyer for the Chamber of Commerce, and you know they don't like litigation--I don't think there will be extensive litigation on a long-term basis at all.

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