Back to the future: the Americans with Disabilities Act: changing the definition of "disability" will amount to nothing more than a boon for creative trial lawyers and fewer resources to assist the truly disabled to enter the work force.

In 1990, a bipartisan group of lawmakers, business-community leaders, disability rights advocates and the George H.W. Bush administration enacted landmark civil rights legislation that had a profound and positive impact on American life. The Americans with Disabilities Act provided new civil rights for those individuals with disabilities. The law required new accessibility guidelines for public offices, institutions and private businesses that serve the public. It also prohibited discrimination by employers, both public and private, in the hiring of workers on the basis of a disability. Additionally, it would create a new process whereby individuals with a disability could seek reasonable accommodations front their employer that were necessary to perform the functions of the job.

Over the past 18 years, the impact of this important law is noticeable. Prior to 1990 and the ADA's enactment, a limited patchwork of state laws meant that not all areas had accessible parking, ramps, public restrooms and reserved seating areas in theaters and stadiums. Skilled and potentially valuable candidates for jobs were sometimes turned down because of worry they either couldn't perform a job or would require costly individualized training or assistance. The ADA has allowed millions of disabled individuals to reach their full potential in the work force and remains an important employee protection and benefit.

ADA Restoration Act Introduced

Flash forward to 2007 and the introduction of the "ADA Restoration Act" (H.R. 3195/S. 1881) by Majority Leader Steny Hoyer (D-Md.) and Rep. James Sensenbrenner (R-Wis.). Both Reps. Hoyer and Sensenbrenner, along with other supporters, have a worthy goal, to protect the rights of those individuals who are disabled under the law. Unfortunately, in an effort to ensure no one falls through any legal cracks, the legislation is a drastic overreach. Also unfortunate, this legislation follows a similar pattern in the 110th Congress, increased regulation and expanded liability for employers. A common theme so far has been following just the advice of trial lawyers and labor unions resulting in legislation that will hurt job growth and investment. At a time when the U.S. economy is faltering, Congress should also be listening to the small-business community and franchise owners who are creating jobs and economic opportunity.

[ILLUSTRATION OMITTED]

The ADA Restoration Act would drastically change the definition of the term "disability" under the law so that virtually anyone in less than perfect health could be considered disabled. Everything from poor eyesight, to minor scars and even the flu or common cold would be covered. Supporters of the bill believe that these should be covered and no one should fear discrimination in their jobs on the basis of such minor or temporary impairments. However, those same supporters forget that the A1)A is a sweeping public law that not only outlaws discrimination, but requires reasonable accommodation by employers and accessibility requirements for both public and private entities. Changing the definition of "disability" will amount to nothing more than a boon for creative trial lawyers and fewer resources to assist the truly disabled to enter the work force.

New Accessibility Guidelines Under Consideration

Complicating matters further, the U.S. Department of Justice is considering proposing new accessibility guidelines. Title III of the ADA requires that any entity providing services to the public, such as hotels, restaurants, theaters, stadiums, offices and retailers be accessible to individuals with disabilities, subject to certain limitations. Requirements cover existing facilities, remodeling and new' construction. Last December, the DOJ submitted its proposal to the White House for approval. The proposal was expected to be published for public comment as early as April. One issue of importance that DQI's rulemaking will have to address is how, if at all, the new guidelines will apply to existing facilities. If all existing facilities are required to retrofit and follow the new regulation, the economic impact will be staggering. Such costs will divert resources away from hiring, employee benefits and services provided to customers and the public.

For example, under the proposed new guidelines, restaurants could be required to widen the space in their kitchens so that they are more easily accessible to individuals who use a wheelchair including customers. The guidelines do not take into consideration that in some states, local health codes prohibit non-employees from entering the kitchen of a restaurant. Imagine the impact of this particular requirement: all restaurants in the United States must remodel their kitchen areas, even though the local health codes prohibit customers from entering the kitchen area.

Another example is the hotel and lodging industry. The proposed guidelines require that accessible bathrooms or toilets have an equal amount of vanity countertop space as those bathrooms or toilets that are not accessible. Imagine the impact of this particular requirement: all hotels would have to consider remodeling individual bathrooms so that available countertop space was comparable in size.

The ADA Restoration Act, along with the possibility of sweeping new government regulations involving public access. is only the latest chapter in the same old story. This story will likely unfold throughout the 2008 elections and foreshadow what could come in 2009. Add this legislation with the Employee Free Choice Act, the Ledbetter Fair Pay Act, the Arbitration Fairness Act and increased congressional oversight of OSHA and the Department of Labor and you have the recipe for stagnant economic growth and increased unemployment.

This tall, franchisors and franchisees have the opportunity to play an important role in determining the future of this legislation. When on the campaign trail, lawmakers and other candidates for elected office need to hear from the franchising community.

Latest Update

As this issue of Franchising World goes to press, the ADA Restoration Act has more than 240 co-sponsors in the U.S. House of Representatives, including more than 40 Republican members. Both the House and Senate have held initial legislative hearings, and the House Education and Labor Committee was expected to mark up the bill in mid- to late-April. This was expected to pave the way for floor action in May. For more information, visit the IFA Web site, www.franchise.org.

Jason Straczewski is director of government relations of the International Franchise Association. He can be reached at 202-662-0797 or [e-mail].