The Social Security Act turned 75 on Saturday, and President Obama seized the occasion to remind the public that the United States cannot afford to privatize social security.

"I'll fight with everything I've got to stop those who would gamble your Social Security on Wall Street," President Obama said during his weekly address. "Because you shouldn't be worried that a sudden downturn in the stock market will put all you've worked so hard for - all you've earned - at risk. You should have the peace of mind of knowing that after meeting your responsibilities and paying into the system all your lives, you'll get the benefits you deserve."

Adds the Los Angeles Times in an editorial:

Conservatives have tried for several years to use the trust fund's long-term troubles as a rationale for privatizing Social Security. But allowing workers to take control (and responsibility) for all or part of their accounts would only exacerbate the problem. That's because, despite $2.5 trillion in reserves, the trust fund isn't large enough to finance the benefits promised to workers already in the system. Shifting payroll taxes from the trust fund to private accounts would make the shortfall worse.

The editorial calls instead for a combination of smaller steps, including raising the retirement age, raising payroll taxes, cutting benefits and changing cost-benefit adjustments.

Editorials in both The Washington Post and The New York Times also call for balanced reform, with a combination of benefit cuts and tax increases, but the Post calls the newest numbers a "warning sign," while The Times editorial board says "Social Security is holding up even in the face of a weak economy," due in part to savings Medicare will experience thanks to health care reform.

Paul Krugman writes that claims of a Social Security crisis rely on "bad-faith accounting."

"I'm not just talking about the fact that it's a lot easier to imagine working until you're 70 if you have a comfortable office job than if you're engaged in manual labor," Krugman writes. "America is becoming an increasingly unequal society - and the growing disparities extend to matters of life and death. Life expectancy at age 65 has risen a lot at the top of the income distribution, but much less for lower-income workers. And remember, the retirement age is already scheduled to rise under current law."

Derek Thompson writes in the Atlantic that Krugman's article is misleading, pointing out that modest cuts today will benefit the bottom 50 percent of Social Security recipients more than steep cuts in the future.

The Nation's Katrina vanden Heuvel suggests: "on this 75th anniversary, rather than fighting these Social Security-busters, we should celebrate what has been one of the nation's best anti-poverty programs - a lifeline for millions of Americans - and a reminder of what effective government can do."

She adds:

This anniversary is also a reminder of how major social reforms in this country have come about - in fits and starts. As former Clinton adviser Paul Begala observed in a Washington Post op-ed, "No self-respecting liberal today would support Franklin Roosevelt's original Social Security Act... If that version of Social Security were introduced today, progressives like me would call it cramped, parsimonious, mean-spirited and even racist. Perhaps it was all those things. But it was also a start. And for 74 years we have built on that start."

---

By Roger Bearden, Director of the Disability Law Center at New York Lawyers for the Public Interest (NYLPI). For more information about NYLPI, visit its Web site.

---

We have much to celebrate on the 20th anniversary of the Americans with Disabilities Act, but for many individuals with disabilities who continue to be confined in institutions, their day of celebration has yet to come.

The ADA set out a comprehensive mandate to eliminate discrimination against individuals with disabilities. While some forms of discrimination are apparent, others have proven more insidious, such as the decades-old practice of confining individuals with disabilities to institutions.

In Olmstead v. L.C., 527 U.S. 581 (1999), the Supreme Court considered the case of two women in Georgia who each had been confined in a state psychiatric hospital for several years despite the determination by their treating professionals that they could live and receive care in the community. The Court held that unjustified isolation of individuals with disabilities violated the ADA and an individual with mental illness may sue a state for failing to serve him or her in the most integrated setting appropriate to his or her needs.

The Olmstead decision held promise and opportunity for persons with disabilities, and many states responded by developing new and effective programs to help individuals with disabilities reside in the community. Far too often, in place of state-run institutions to which individuals with disabilities were traditionally confined, states placed individuals in privately run institutions that replicated the worst aspects of the state-run institutions.

Recent court cases have held that the ADA's mandate applies equally wherever a person with a disability may be confined. In a recent New York case in which I serve as co-counsel, the court ordered New York State to provide community housing for approximately 4,300 residents of adult homes, large facilities housing hundreds of individuals with mental illness in isolation from the community. A similar case in Illinois involving individuals with mental illness in nursing homes recently settled with Illinois' promise to offer community-based housing and treatment to roughly 4,500 individuals living in two dozen large nursing homes.

These cases and others bring the promise of the ADA closer for many individuals with disabilities. But litigation alone will not bring the fundamental change necessary so that all individuals with disabilities have the opportunity to live in the community. Concerted action on all levels of government is necessary to make the ADA's promise real. To this end, President Obama's commitment to expand the opportunities for community living should be praised, including his declaration last year, the 10th anniversary of the Olmstead decision, as the "Year of Community Living." So too should the renewed commitment of the Department of Justice to make community integration a central priority for its civil rights enforcement.

Despite these many gains, our current economic difficulties pose a grave threat to the continuing promise of community integration. To balance budgets, many state and local governments have cut away at the supports that enable individuals with disabilities to remain in the community. As we enter the ADA's third decade, continued vigilance will be necessary to assure the ADA's promise of full and equal participation in society for all individuals with disabilities.

 

Twenty years after enactment of the Americans with Disabilities Act, the law faces a new challenge: adapting to changing technology and the Internet, says Kareem Dale, President Barack Obama's top disability advisor in an interview with The Washington Post.

In celebrating the law's 20th anniversary, Dale points out the "sea change" of progress that has been made, with developments as simple as curb cuts on street corners for wheelchairs and Braille in hotel rooms, "but we're not done," he qualifies, citing the lack of clarity as to whether websites have to comply with the ADA.

"Many courts have said no and maybe a couple have said yes, but it's been an open question," Dale said.

Attorney General Eric Holder announced last week that the Department of Justice will soon seek comment on four proposed rules that would create accessibility requirements for websites, movies, equipment and 911 call-taking technology, Main Justice reports.

Thomas Perez, assistant attorney general for civil rights, has said in the past that ADA applies to websites, according to Main Justice.

"Companies that do not consider accessibility in their website or product development will come to regret that decision, because we intend to use every tool at our disposal to ensure that people with disabilities have equal access to technology and the worlds that technology opens up," Perez said in April.

During the event commemorating the 15th anniversary of the American Association of People with Disabilities, Holder announced the creation of a new position, special assistant for disabilities, under the deputy associate attorney general for diversity management.

President Obama also issued a public service announcement in honor of the ADA's anniversary.

View ACSblog commentary on the ADA at 20:

• Sen. Tom Harkin, one of the original sponsors of the ADA, looks back at the progress made from "pre-ADA America," when people with disabilities "had to crawl on their hands and knees to go up the stairs," but calls it shameful that young people with disabilities are housed in institutional settings like nursing homes.
• Emily Benfer, director of the new Health Justice Project at Loyola University Chicago School of Law, authored an issue brief on the necessity of the ADA Amendments Act of 2008. In a new guest post, Benfer highlights the importance of education and coalition-building in furthering the ADA's goals.

Here is some other notable commentary:

• "Is the ADA DOA?" asks workplace and labor columnist Eve Tahminciolglu. She points to "pretty sad numbers" from a recent study, showing that 61% of people say the act has made no difference in their life, while 23% report the act has made their life better. She urges stronger enforcement of the act in a blog on The Huffington Post.
• Bloomberg News Executive Editor for Washington Albert R. Hunt also writes that employment problems persist 20 years after the ADA's passage - the jobless rate for disabled people is double that of "able-bodied workers" - but said "progress, in politics, business and social mindsets is impressive," citing as one recent victory the health care bill's ban on health insurance companies' denial of coverage because of pre-existing medical conditions.
• Fifty percent of people with disabilities are not working, the same as 20 years ago, according to Andy Imparato, president of the American Association for People with Disabilities. In a PBS Newshour interview, Imparato says the official unemployment figure of 14 percent is misleading because it counts only those who are actively looking for work, and many have given up. View a video segment here.  
• The Guardian's Michael Tomasky asks, "Would the ADA pass today?" While "it is agreed nearly across the spectrum - nearly - that this was a good thing," Tomasky points to Senate candidate Rand Paul's (R-KY) comment that requiring businesses to provide access isn't "fair to the business owner." "Paul is more extreme than your average Republican, but it does make one wonder whether today's Republican Party would have supported the ADA," Tomasky writes.

---

By Senator Tom Harkin (D-IA). Sen. Harkin is Chairman of the Senate Health, Education, Labor and Pensions Committee.

---

The Americans with Disabilities Act - signed into law on July 26, 1990 - has been described as the Emancipation Proclamation for people with disabilities. It sets four goals for people with disabilities: equal opportunity, full participation, independent living and economic self-sufficiency.

But at its heart, the ADA is simple. In the words of one activist, this landmark law is about securing for people with disabilities the most fundamental of rights: "the right to live in the world." It ensures they can go places and do things that other Americans take for granted.

I will always remember a young Iowan named Danette Crawford. In 1990, she was just 14. She used a wheelchair, and lived with great pain. But she campaigned hard for the ADA. When I told her that the ADA would mean better educational opportunities, and prevent workplace discrimination, Danette said: "Those things are very important. But, you know, what I really want to do is just be able to go out and buy a pair of shoes like anybody else."

Two decades later, people with disabilities can do that - and so much more. The ADA has changed America in ways largely invisible to most citizens, but profoundly transformative for tens of millions of Americans with disabilities.

How soon we forget the pre-ADA America. In hearings before passing the law, we heard heartbreaking testimony about the obstacles and discrimination that people with disabilities faced in their daily lives. We heard stories of Americans who had to crawl on their hands and knees to go up a flight of stairs, or to gain access to their local swimming pool; who couldn't ride on a bus because there wasn't a lift; who couldn't go to concerts or ballgames because there was no accessible seating; who couldn't cross the street in wheelchairs because there were no curb cuts. In short, we heard thousands of stories about people denied the right "to live in the world."
ADA passage was a bipartisan effort. As chief sponsor in the Senate, I worked closely with both sides of the aisle. We received invaluable support from President George H.W. Bush and key members of his administration, especially Attorney General Dick Thornburgh. The final Senate vote, 91 to 6, sent a resounding message that this nation would no longer tolerate isolation and second-class citizenship for people with disabilities.

In the ensuing years, we have seen amazing progress. Streets, buildings, sports arenas and transportation systems are now more accessible for people with physical impairments. Information is offered in alternative formats, useable by people with visual or hearing impairments. New technologies for people with disabilities continue to be developed.

Thanks to ADA employment provisions, those with disabilities are able to get reasonable accommodations on the job, like assistive technology, or accessible work environments, or more flexible schedules.

Just as important, we have seen a big change in attitudes. Our expectation is that we do what it takes to give individuals with disabilities not just physical access, but equal opportunity in our schools, in our workplaces, in all areas of our economy and society.

Every individual with a disability deserves a chance "to live in the world" - to hold a job, start a business, pay taxes and reside with family or in the community.

Despite the great progress, our work is far from complete. For example, millions of people with disabilities - including young people - are housed in institutional settings like nursing homes. With appropriate community-based services and supports, they can have the option of living with family and friends - not strangers. The new health reform law makes some progress on this, but we need to do even more.

When he signed the ADA into law, Bush spoke with great eloquence: "Let the shameful wall of exclusion finally come tumbling down." Twenty years later, that wall is indeed falling.

The ADA has broken down barriers, created opportunities and transformed lives. Today, we recognize that people with disabilities - like all people - have unique abilities, talents and aptitudes. Our nation is better, fairer and richer when we make full use of those gifts.

The ADA is America at its very, very best.

 

---

By Michael R. Masinter, Professor of Law, Shepard Broad Law Center, Nova Southeastern University

---

It's difficult to overstate just how disastrous a decision the U.S. Court of Appeals for the Eleventh Circuit recently issued regarding the Americans with Disabilities Act (ADA). The Eleventh Circuit ruling dismissed a lawsuit challenging a Florida county's lack of voting machines for disabled individuals. That decision, American Association of People with Disabilities v. Harris, holds that a violation of Title Two regulations enacted pursuant to an express grant of rulemaking authority cannot be the basis for a claim asserting a violation of Title Two's various prohibitions, and does so largely by relying on Alexander v. Sandoval.

Sandoval forbade private enforcement of Title VI disparate impact regulations because Title VI of the Civil Rights Act of 1964 is spending clause legislation that SCOTUS previously had construed only to forbid intentional discrimination. Because under the Roberts and Rehnquist Courts spending clause statutes were not ordinarily privately enforceable, those that are privately enforceable must, we are told, contain within the statute the source of potential state liability to private parties given the contractual nature of liability - it arises from accepting federal funds, so states must know what comes with the money, and they know from the statute, not from regulations later enacted, what can expose them to liability by accepting that money. Since Title VI only forbade intentional discrimination, disparate impact claims relying on regulations could not be said to be claims for a violation of Title VI, and therefore the regulations, even if valid, were not privately enforceable.

Leaving aside everything that is wrong with the Court's treatment of spending clause statutes, Title Two of the ADA isn't spending clause legislation, it is legislation enacted under section five of the Fourteenth Amendment, which gives Congress express authority to impose federal law on states irrespective of whether they accept federal dollars. Congress legislates under section five as a sovereign, not as a dispenser of federal money.

Title Two directly forbids state and local governments from three forms of unlawful activity - exclusion from participation in, denial of benefits of services, activities, and programs, and discrimination, all on the basis of disability, and in section 204 Title Two explicitly authorizes the Department of Justice to enact implementing regulations that surely can, with Chevron deference, elaborate on the meaning of exclusion, denial and discrimination. Contrary to the Eleventh Circuit's opinion, the grant of regulatory power in section 204 includes, but is not limited to providing standards for facilities and vehicles. 28 C.F.R. 35.151(b) does that by elaborating on the statutory prohibition against discrimination, and so a violation of the regulation becomes a violation of the prohibition against exclusion and discrimination.

The trial judge may have used the wrong terminology by describing why the failure to provide accessible voting machines was unlawful - perhaps he should have characterized it as a violation of the prohibition against exclusion and discrimination rather than as a violation of the regulation elaborating exclusion and discrimination, see footnote 24,but the panel intended much more, and in any event footnote 24 is an odd way to acknowledge that a panel is creating circuit conflict merely to insist on ritualistic incantation of language.

The Court offers an alternative rationale when it writes that even if private enforcement were proper, defendants haven't violated Title Two's prohibitions as construed in Sec. 35.151(b) because they haven't provided inaccessible facilities in which to vote in the first place. The panel could easily have said only that, but it looks like it wanted to take a gratuitous swipe at the private enforcement of civil rights regulations enacted pursuant to section five legislation in a decision in which it could be pretty sure that, because of its alternative rationale, would escape review by the U.S. Supreme Court, even in the face of its circuit conflict.

The broad holding seems to be this: Even when Congress has lawmaking power under section five of the Fourteenth Amendment (not spending clause contractual power but substantive legislative authority), enacts legislation that expressly authorizes private suits for violations, delegates express rulemaking authority to the Department of Justice as it routinely does when it empowers an agency to make rules with the force of law entitled to Chevron deference, the result is that only the DOJ can enforce the rules. Until now, I had thought Sandoval was part of the war against private enforcement of spending clause legislation, but in the Eleventh Circuit, it's much more.

So where does this decision lead? Are section 504 and Title IX private suits against governmental (or perhaps all) defendants now off the table in the Eleventh Circuit if they rely on a violation of a regulation to establish unlawful discrimination? How about Fair Housing Act claims?

All this in a decision in which the court bypassed a defense claim of mootness to decide the merits on the broadest possible ground. Talk about judicial activism.

 

In Texas, where 29 percent of immigration detainees are held while the government tries to deport them, a new study found high levels of mental illness and mistreatment at every stage. In "Justice for Immigration's Hidden Population," public interest law center Texas Appleseed and law firm Akin Gump report on stories of several detainees without the medical or legal tools to prevent their slides into mental incompetency.

One example detailed in the report is that of a 50-year-old legal resident of New York City, who suffers from schizophrenia. A state judge determined him mentally incompetent to stand trial on trespassing charges. Instead of serving 90 days in a mental institution, as ordered by the judge, the defendant was sent to an immigration detention facility in Texas, where he underwent deportation hearings without counsel. With his family uninformed of his whereabouts, the gentleman was denied medical attention for weeks before being deported to the Dominican Republic.

The New York Times summarizes the report:

For lawyers offering free legal information at large immigration detention centers in remote parts of Texas, the task is difficult enough: coaching hundreds of detainees on how to represent themselves at assembly-line deportation hearings. But the lawyers soon discover a more daunting problem: many detainees are too mentally ill or mentally disabled to understand anything.

The detainees, mostly apprehended in New York and other Northeastern cities, some right from mental hospitals, have often been moved to Texas without medication or medical records, far from relatives and mental health workers who know their histories. Their mental incompetence is routinely ignored by immigration judges and deportation officers, who are under pressure to handle rising caseloads and meet.

[Image via Lisa Norwood.]

The Justice Department's Civil Rights Division is once again "open for business," according to the division's new chief, Thomas Perez, in remarks to ACS members and covered live by C-SPAN.

"In the first 60 days that I've been on the job, we have already done as much hate crimes activity as was done in the entire fiscal year of 2006. And by the way, that was a leap year. And we've done as much as was done in fiscal year 2007," Perez told an ACS audience at the National Press Club, in a YouTube clip now available here. "Don't listen to my words, look at our actions."

Perez's commitment to restoring the division follows years of limited enforcement, decreased hiring of racial minorities, and a working environment that led African-Americans to be 50 percent more likely to quit or resign than were white employees. Under President George W. Bush, a scandal also arose around politicization in the division's case-selection and Justice Department hiring. "We will make sure that this chapter of our history is the best one yet," Perez declared in his conclusion, posted to YouTube courtesy of MainJustice.

---

By Jamil Dakwar, Director of the American Civil Liberties Union Human Rights Program & Steering Committee Member of the Campaign for a New Domestic Human Rights Agenda  

---

Seven months ago, the United States issued a list of human rights commitments and pledges in support of U.S. candidacy for membership in the U.N. Human Rights Council. The decision to join the Human Rights Council was the right thing to do. It was as an important step in breaking with the Bush administration's unilateral and disastrous policies on human rights. While we welcomed this move, we noted that the Obama administration had "missed an opportunity to detail exactly how it will reaffirm its commitment to ending human rights violations at home beyond vague rhetoric." We warned the Obama administration to "move beyond ambiguous commitments which are similar to the ones heard from the Bush administration over the past eight years."

There is no question that this administration is currently facing multiple and daunting challenges, including the wars in Iraq and Afghanistan and the safe closing of Guantánamo, the economic crisis and rising unemployment, health care, energy reform and much more. However, nearly a year after Obama's inauguration, the administration has yet to announce any major domestic human rights initiative, outline a detailed plan to honor and expand our existing human rights commitments and translate them into domestic policy, or incorporate them into the daily working of the U.S. government.

Tomorrow, the president will accept the Nobel Peace Prize. The prize is traditionally given out on Human Rights Day, which marks the 61st anniversary of the Universal Declaration of Human Rights. Former first lady Eleanor Roosevelt, who led the U.S. delegation to the U.N. Commission on Human Rights in the 1940s, called this landmark document "the Magna Carta for humanity."

We have seen this administration take bold steps in the early days of Obama's presidency when three executive orders were signed pledging to close Guantánamo within one year, end CIA secret detentions overseas and reaffirming the absolute prohibition against torture. Furthermore, the administration has also committed to advancing civil rights and promoting equal opportunity. We all remember the presidential speech on civil rights delivered at the NAACP annual meeting, and the administration's strong support for legislation like the Lilly Ledbetter Fair Pay Act and the Employment Non-Discrimination Act, which the administration supported in testimony before Congress (PDF). The president has committed to advance women's rights by issuing an executive order establishing the White House Council on Women and Girls and prioritizing a critical women's rights treaty for ratification. The administration's commitment to persons with disabilities has been made clear in the signing of the Convention on the Rights of Persons with Disabilities and the White House's celebration of the 20th anniversary of the Americans with Disabilities Act.

However, there has been much debate and criticism about decisions the Obama administration has made in the subsequent months on a number of important issues. The administration has been reluctant to fully investigate acts of torture committed by the Bush administration and end the practice of extraordinary rendition. The practice of invoking the state secret privilege to block accountability continues, and the discredited military commissions in Guantánamo Bay have been revived. There has also been no announcement of a significant action or initiative to fully honor our human rights commitments and treaty obligations and fully incorporate them into national security policies including the treatment, detention, trial and repatriation of detainees in U.S. custody overseas notwithstanding the announcement in September of the detention and prison reforms in Afghanistan.

Therefore, we must continue to make the case for human rights here at home by supporting the goals of the Campaign for a New Domestic Human Rights Agenda - a broad coalition of approximately 50 U.S.-based human and civil rights, civil liberties and social justice organizations tasked with finding the best fusion between civil rights and human rights. Key objectives of the campaign include:

• A new, enhanced executive order revitalizing the Interagency Working Group on Human Rights to coordinate the efforts of federal agencies and departments to respect and implement human rights obligations as U.S. domestic policy;
• Transforming the U.S. Commission on Civil Rights into a U.S. Commission on Civil and Human Rights;
• Monitoring government compliance with the Convention on the Elimination of All Forms of Racial Discrimination which the U.S. ratified in 1994; and,
• Strengthening federal, state, and local government coordination to support human rights.

On Human Rights Day 11 years ago, President Clinton issued an executive order creating an Interagency Working Group on Human Rights, which was subsequently disbanded during the Bush administration. The ACLU reiterates its call for the resurrection of a more effective Interagency Working Group on Human Rights to coordinate and promote human rights within domestic policy, and for the implementation and enforcement of ratified human rights treaties and essentially bridging the often artificial gaps between civil rights and human rights.

Further, President Obama must make it clear that human dignity is of paramount importance, and that accountability for human rights is a U.S. national interest. The administration must seize the opportunity to uphold core American values of fairness and justice for all by building a much-needed human rights infrastructure here at home.

While presidential speeches, like the one expected in Norway tomorrow, are important to rally public support for human rights, what is needed is unequivocal and concrete action to honor human rights commitments at home. Too many people have suffered as the United States' human rights record crumbled under the Bush administration. The time is for action is now.

[This was initially published at Huffington Post. Image via United Nations Photo.]

The Genetic Information Nondiscrimination Act takes effect today. According to the National Human Genome Research Institute, "The long-awaited measure, ... debated in Congress for 13 years, will pave the way for people to take full advantage of the promise of personalized medicine without fear of discrimination."

The Los Angeles Times reports: 

The most sweeping federal anti-discrimination law in nearly 20 years takes effect today, prohibiting employers from hiring, firing or determining promotions based on genetic makeup.

Additionally, health insurers will not be allowed to consider a person's genetics -- such as predisposition for Parkinson's disease -- to set insurance rates or deny coverage.

[Image via Lawrence OP.]

---

By Emily A. Benfer, the supervising attorney and teaching fellow at Georgetown University Law Center's Federal Legislation and Administrative Clinic. Benfer is also the author of a recent ACS Issue Brief, "The ADA Amendments Act: An Overview of Recent Changes to the Americans with Disabilities Act."

---

Earlier this month, the Equal Employment Opportunity Commission approved a Notice of Proposed Rulemaking revising its regulations to comport with the recent changes to the Americans with Disabilities Act ("ADA") under the ADA Amendments Act ("ADAAA"). The proposed regulations are consistent with the interpretation of the ADAAA outlined in "The ADA Amendments Act: An Overview of Recent Changes to the Americans with Disabilities Act" and mark a positive evolution in the law - one that reinvigorates the ADA by providing protection for individuals who were not previously covered.

The Americans with Disabilities Act was intended to be a strong and broad civil rights law. Once lauded as a tremendous step forward for the disability community, the Supreme Court not only turned the ADA on its heels but shoved it two steps back. In Toyota v. Williams, the Supreme Court transformed the broad scope of the ADA into a nearly insurmountable demanding standard. In Sutton v. United Airlines, Inc., the Supreme Court required consideration of mitigating measures in determining whether a person is disabled and created a subjective standard for proving a covered entity regarded a person as disabled. These two cases shattered the inclusive standard applied by courts construing the definition of "handicapped individual" under the Rehabilitation Act - a standard Congress expected to be followed under the ADA - and invited courts to deny people seeking protection from discrimination. This contortion of the ADA resulted in lower court determinations that denied people with epilepsy, HIV, muscular dystrophy and cancer, among other disabilities, protection from discrimination.

Despite the past holdings and reasoning, the future of disability law is bright and the end of discrimination against persons with disabilities is near. The ADA Amendments Act, which went into effect on January 1, 2009, is a critical step towards meeting ADA's objective of providing "a clear and comprehensive national mandate for the elimination of discrimination" and "clear, strong, consistent, enforceable standards addressing discrimination' against people with disabilities." 

As the EEOC recognizes, "The effect of these changes is to make it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA." For example, consistent with the provisions of the ADAAA, the EEOC's proposed rules:

• provides that the definition of "disability" shall be interpreted broadly;
• revises the term "substantially limits" by providing that a limitation need not "significantly" or "severely" restrict a major life activity in order to meet the standard, and attempts to effectuate Congress's clear instruction that "substantially limits" is not to be misconstrued to require the "level of limitation, and the intensity of focus" applied by the Supreme Court in Toyota Motor Mfg., Ky v. Williams, 534 U.S. 134 (2002)
• expands the definition of "major life activities" through two non-exhaustive lists that are consistent with the ADAAA's legislative history:
o the first list includes activities such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working
o the second list includes major bodily functions, such as functions of the immune system, special sense organs, and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions
• provides that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
• provides that the definition of "regarded as" is changed so that it no longer requires a showing that the employer perceived the individual to be substantially limited in a major life activity, and instead provides that an applicant or employee who is subjected to an action prohibited by the ADA (e.g., failure to hire, denial of promotion, or termination) because of an actual or perceived impairment will meet the "regarded as" definition of disability, unless the impairment is both transitory and minor.

Watchdogs for civil rights and liberties are encouraged to learn more about the ADA Amendments Act and participate in the public comment period. For an overview of the ADA Amendments Act, please see my recent ACS Issue brief. To comment on the NPRM or for additional information, visit here.

Together, we will ensure that the rights and dignity of people with disabilities are upheld and where they are not, the ADAAA serves as a powerful condemnation of and protection against discrimination.