| |
Written Testimony Submitted to the Senate Committee on Health, Education, Labor, and Pensions Hearing on "Protecting the Employment Rights of Those Who Protect the United States"
November 8, 2007
From
John R. Vaughn, Chairman
National Council on Disability
1331 F St NW, Suite 850
Washington, DC 20004
www.ncd.gov
202-272-2004 (V)
202-272-2074 (TTY)
202-272-2022 (FAX)
jvaughn@ncd.gov
The National Council on Disability (NCD) is an independent federal agency, established to make recommendations to Congress and the Administration on issues, policies, and laws affecting people with disabilities. It is NCD's mission to promote policies, programs, practices and procedures that guarantee equal opportunity for all individuals with disabilities, regardless of the nature or severity of the disability, and to empower individuals with disabilities to achieve economic self-sufficiency, independent living, and inclusion and integration into all aspects of society.
NCD commends the Committee for investigating this topic. NCD has an interest in ensuring that the employment rights of veterans are protected. Thanks to advances in military medicine, more soldiers are surviving grievous wounds and are returning home with severe and multiple disabilities. According to the Department of Veterans Affairs,1 the number of service members who had sustained wounds requiring evacuation from theatre as of September 30, 2006 was 50,508.
Additionally, a high proportion of veterans returning from Iraq and Afghanistan have experienced traumatic brain injuries (TBI), and a high proportion experience symptoms of post-traumatic stress disorder (PTSD). Early in the Iraq War, the Army surveyed 3,671 returning veterans and found that up to 17 percent of the soldiers were suffering from depression, anxiety and symptoms of PTSD. Other studies have indicated that protracted warfare in Iraq—with its intense urban street fighting, civilian combatants and terrorism—could drive PTSD rates even higher. According to the 2004 Report of the Special Committee on Post-Traumatic Stress Disorder, established by Congress in 1984 to monitor this problem, forty percent of service members returning from Iraq and Afghanistan to Walter Reed Army Medical Center reported symptoms consistent with PTSD.
Veterans also experience higher than average rates of chronic health conditions after serving in armed conflicts.2 Veterans are nearly three times as likely as the general population to develop diabetes.3 According to the Epilepsy Foundation,4 the high number of veterans experiencing traumatic brain injuries portends an increase in the incidence of epilepsy among this group, as traumatic brain injury is a significant risk factor for developing epilepsy. As a result of exposure to explosions and close-range weapons fire, veterans also experience much higher than average incidents of hearing loss.5 Given the high number of veterans with disabilities returning from the current conflicts, and the likelihood that a large number of returning veterans will experience chronic health conditions after their military service, it is prudent for lawmakers to act now to ensure that the civil rights of our soldiers are protected.
For this reason, NCD is placing special emphasis on studying the needs of veterans with disabilities in many of its projects. Two of NCD's recently published reports are particularly pertinent to issues surrounding the employment of veterans with disabilities.
First, Empowerment for Americans with Disabilities: Breaking Barriers to Careers and Full Employment:www.ncd.gov/newsroom/publications/2007/NCDEmployment_20071001.htm, reviews the issues integral to the employment of people with disabilities. It has two broad aims: 1) to summarize the existing knowledge regarding the employment of people with disabilities in a series of short issue briefs; and 2) to present new information on the perspectives of employers, people with disabilities, and disability specialists on the key barriers and facilitators of employment. As part of this study, a focus group of veterans with disabilities was convened to learn about the challenges and opportunities related to employment for veterans with disabilities. Input from these veterans confirms much of the testimony presented at the Senate Health Committee's November 8th hearing.
The focus group participants identified some of the policy barriers that are specific to veterans who have a disability, and suggested some ways in which they could be improved. In general, they felt that there needs to be a more concerted effort on the part of all agencies/programs that touch the lives of a veteran.
There are currently several different programs under multiple federal agencies that differ in enrollment criteria and funding sources. These programs should be coordinated so they can blend and braid funds and resources at all levels. There should also be increased effort at ensuring that veterans are aware of the programs and services available to assist them in their employment efforts and to assure that they know how to access them.
NCD recommends the creation of a single organization at the federal level designated to consolidate information about these programs. At the state level, a veterans’ ombudsman should be identified to serve as the coordinator of the programs and services at the state level, with federal-level accountability. Finally, at the individual level, one person should be assigned to serve as a coordinator/agent to respond to the needs of each veteran who has a disability and help him or her navigate and get enrolled in the myriad of services and programs designed for veterans’ support.
NCD's report, Righting the ADA: www.ncd.gov/newsroom/publications/2004/righting_ada.htm, which analyzes U.S. Supreme Court cases interpreting the Americans with Disabilities Act (ADA) and proposes legislation to restore the employment protections for people with disabilities eroded by those decisions, is also particularly applicable to protection of the employment rights of veterans with disabilities, as many of the types of disabilities experienced by veterans are no longer entitled to the protections of the ADA.
Veterans with disabilities returning from the current conflicts differ from those in prior wars in that many are electing to remain in the military or enter the civilian workforce after rehabilitation. This is possible now, due in part to advances in assistive technology that make it possible for people with disabilities to perform a wide range of jobs, and in part because attitudes towards disability have progressed, both within and outside the military.
However, as a result of several U.S. Supreme Court cases, the employment rights of people with disabilities have been severely eroded. NCD is particularly concerned about the impact of the developments in the ADA case law on veterans with disabilities. Given that service members returning from the current conflict in Iraq and Afghanistan are experiencing a very high incidence of disabilities, including post-traumatic stress disorder, traumatic brain injury, diabetes, depression, and hearing loss, many of our veterans with disabilities will require the long-term use of mitigating measures such as medication, orthotics, and assistive technologies.
The U.S. Supreme Court has narrowed substantially the number of people with disabilities who come under the ADA's protections, including, in particular, people who use mitigating measures. In June of 1999, the Supreme Court decided Sutton v. United Airlines,6 a case involving pilots needing corrective lenses, and Murphy v. United Parcel Service,7 a case involving a man with high blood pressure. In both cases, the Court held that, in determining whether an individual is substantially limited in a major life activity, courts may consider only the limitations of an individual that persist after taking into account mitigating measures, e.g., medication or auxiliary aids and services and any negative side effects the mitigating measures may cause.
On the same day in 1999, the Supreme Court decided Albertson's Inc. v. Kirkingburg,8 a case involving a man blind in one eye. The Court held in Kirkingburg that a "mere difference" in how a person performs a major life activity does not make the limitation substantial; how an individual has learned to compensate for the impairment, including "measures undertaken, whether consciously or not, with the body's own systems," also must be taken into account. These three cases, Sutton, Murphy and Kirkingburg are often referred to as the “Sutton trilogy.”
The result of these decisions is that people who Congress clearly intended to be covered by the ADA,9 such as people with epilepsy,10 diabetes,11 depression,12 and hearing loss,13 some of the very disabilities common among veterans, are now being denied employment and refused reasonable accommodations because of their disability or the mitigating measures they use, and courts refuse to hear their cases, regardless of how egregious their employers’ actions. These decisions have also resulted in courts now making elaborate inquiries into all aspects of the personal lives of individuals with disabilities in order to determine whether, and to what extent, mitigating measures actually alleviate the effects of the disability – never addressing the question of whether employment-discrimination occurred.
We must ensure that our society welcomes home our veterans with disabilities, and that those who can perform essential job functions are not prevented from doing so solely on the basis of their disability or the mitigating measures they use. The rights of veterans with disabilities to be free from employment discrimination cannot be ensured without restoration of the ADA.
NCD will offer more testimony in support of the ADA Restoration Act when the Senate considers S. 1881. However, NCD submits this testimony to emphasize the importance of ADA restoration for our veterans with disabilities.
Respectfully submitted,
John R. Vaughn
Chairman
1Department of Veterans Affairs, Office of Public Affairs, America’s Wars (Sept. 30, 2006).
2National Academy of Sciences, Gulf War Veterans Experience Health Symptoms, But Not Unique syndrome: Elevated Rates of ALS, Psychological Conditions Found (Sept. 12, 2006). ,
3U.S. Department of Health and Human Services, HHS and VA to Target Diabetes, Obesity Among American Veterans (Feb.27, 2006) http://www.hhs.gov/news/press/2006pres/20060227.html (visited Nov. 9, 2007).
4Brenda Patoine, High Rate of Head Injuries in Iraq soldiers Portends Potential Wave of Epilepsy, http://www.epilepsyfoundation.org/epilepsyusa/tbi-special-report.cfm (visited Nov. 9, 2007).
5National Academy of Sciences, Institute of Medicine, Noise and Military Service: Implications for Hearing Loss and Tinnitus (Sept. 22, 2005).
6Sutton v. United Airlines, Inc., 527 U.S. 471 (1999).
7Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999).
8Albertson’s Inc. v. Kirkingburg, 527 U.S. 555 (1999).
9See S. Rep. No. 116, 101st Cong., lst Sess. 23 (1989); H.R. Rep. No. 485 part 2, 101st Cong., 2d Sess. 52 (1990).
10See Todd v. Academy Corp., 57 F. Supp. 2d 448, 453-54 (S.D. Tex. 1999).
11See Nordwall v. Sears, Roebuck & Co., 46 Fed. App. 364, 2002 WL 31027956 (7th Cir. 2002) (unpublished).
12 See Spades v. City of Walnut Ridge, 186 F.3d 897, 900 (8th Cir. 1999).
13See Martell v. Sparrows Point Scrap Processing, 214 F. Supp. 2d 527 (MD. 2002).
|
