[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 1881 Introduced in Senate (IS)]







110th CONGRESS
  1st Session
                                S. 1881

  To amend the Americans with Disabilities Act of 1990 to restore the 
      intent and protections of that Act, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             July 26, 2007

Mr. Harkin (for himself and Mr. Specter) introduced the following bill; 
     which was read twice and referred to the Committee on Health, 
                     Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL


 
  To amend the Americans with Disabilities Act of 1990 to restore the 
      intent and protections of that Act, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Americans with Disabilities Act 
Restoration Act of 2007''.

SEC. 2. FINDINGS AND PURPOSES.

    (a) Findings.--Congress finds that--
            (1) in enacting the Americans with Disabilities Act of 
        1990, Congress intended that the Act ``establish a clear and 
        comprehensive prohibition of discrimination on the basis of 
        disability'', and provide broad coverage and vigorous and 
        effective remedies without unnecessary and obstructive 
        defenses;
            (2) decisions and opinions of the Supreme Court have unduly 
        narrowed the broad scope of protection afforded by the 
        Americans with Disabilities Act of 1990, eliminating protection 
        for a broad range of individuals whom Congress intended to 
        protect;
            (3) in enacting the Americans with Disabilities Act of 
        1990, Congress recognized that physical and mental impairments 
        are natural parts of the human experience that in no way 
        diminish a person's right to fully participate in all aspects 
        of society, but Congress also recognized that people with 
        physical or mental impairments having the talent, skills, 
        abilities, and desire to participate in society are frequently 
        precluded from doing so because of prejudice, antiquated 
        attitudes, or the failure to remove societal and institutional 
        barriers;
            (4)(A) Congress modeled the Americans with Disabilities Act 
        of 1990 definition of disability on that of section 504 of the 
        Rehabilitation Act of 1973 (referred to in this section as 
        ``section 504''), which had, prior to the date of enactment of 
        the Americans with Disabilities Act of 1990, been construed 
        broadly to encompass both actual and perceived limitations, and 
        limitations imposed by society; and
            (B) the broad conception of the definition contained in 
        section 504 had been underscored by the Supreme Court's 
        statement in its decision in School Board of Nassau County v. 
        Arline, 480 U.S. 273 (1987), that the definition ``acknowledged 
        that society's myths and fears about disability and disease are 
        as handicapping as are the physical limitations that flow from 
        actual impairment'';
            (5) in adopting, in the Americans with Disabilities Act of 
        1990, the concept of disability expressed in section 504, 
        Congress understood that adverse action based on a person's 
        physical or mental impairment is often unrelated to the 
        limitations caused by the impairment itself;
            (6) instead of following congressional expectations that 
        the term ``disability'' would be interpreted broadly in the 
        Americans with Disabilities Act of 1990, the Supreme Court has 
        ruled, in Toyota Motor Manufacturing, Kentucky, Inc. v. 
        Williams, 534 U.S. 184 (2002), that the elements of the 
        definition ``need to be interpreted strictly to create a 
        demanding standard for qualifying as disabled'' and, consistent 
        with that view, has narrowed the application of the definition 
        in various ways; and
            (7) contrary to explicit congressional intent expressed in 
        the committee reports for the Americans with Disabilities Act 
        of 1990, the Supreme Court has eliminated from the Act's 
        coverage individuals who have mitigated the effects of their 
        impairments through the use of such measures as medication and 
        assistive devices.
    (b) Purpose.--The purposes of this Act are--
            (1) to effect the Americans with Disabilities Act of 1990's 
        objectives of providing ``a clear and comprehensive national 
        mandate for the elimination of discrimination'' and ``clear, 
        strong, consistent, enforceable standards addressing 
        discrimination'' by restoring the broad scope of protection 
        available under the Americans with Disabilities Act of 1990;
            (2) to respond to certain decisions of the Supreme Court, 
        including Sutton v. United Air Lines, Inc., 527 U.S. 471 
        (1999), Murphy v. United Parcel Service, Inc., 527 U.S. 516 
        (1999), Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 (1999), 
        and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 
        U.S. 184 (2002), that have narrowed the class of people who can 
        invoke the protection from discrimination that the Americans 
        with Disabilities Act of 1990 provides; and
            (3) to reinstate the original congressional intent 
        regarding the definition of disability in the Americans with 
        Disabilities Act of 1990 by clarifying that the protection of 
        that Act is available for all individuals who are--
                    (A) subjected to adverse treatment based on an 
                actual or perceived impairment, or a record of 
                impairment; or
                    (B) adversely affected--
                            (i) by prejudiced attitudes, such as myths, 
                        fears, ignorance, or stereotypes concerning 
                        disability or particular disabilities; or
                            (ii) by the failure to remove societal and 
                        institutional barriers, including 
                        communication, transportation, and 
                        architectural barriers, or the failure to 
                        provide reasonable modifications to policies, 
                        practices, and procedures, reasonable 
                        accommodations, and auxiliary aids and 
                        services.

SEC. 3. FINDINGS IN AMERICANS WITH DISABILITIES ACT OF 1990.

    Section 2(a) of the Americans with Disabilities Act of 1990 (42 
U.S.C. 12101(a)) is amended--
            (1) by striking paragraph (1) and inserting the following:
            ``(1)(A) physical and mental disabilities are natural parts 
        of the human experience that in no way diminish a person's 
        right to fully participate in all aspects of society; and
            ``(B)(i) people with physical or mental disabilities having 
        the talent, skills, abilities, and desire to participate in 
        society are frequently precluded from doing so because of 
        discrimination; and
            ``(ii) other people who have a record of a disability or 
        are regarded as having a disability have also been subjected to 
        discrimination;''; and
            (2) by striking paragraph (7) and inserting the following:
            ``(7)(A) individuals with disabilities have been subjected 
        to a history of purposeful unequal treatment, have had 
        restrictions and limitations imposed upon them because of their 
        disabilities, and have been relegated to positions of political 
        powerlessness in society; and
            ``(B) classifications and selection criteria that exclude 
        individuals with disabilities should be strongly disfavored, 
        subjected to skeptical and meticulous examination, and 
        permitted only for highly compelling reasons, and never on the 
        basis of prejudice, myths, irrational fears, ignorance, or 
        stereotypes about disability;''.

SEC. 4. DISABILITY DEFINED.

    Section 3 of the Americans with Disabilities Act of 1990 (42 U.S.C. 
12102) is amended--
            (1) by striking paragraph (2) and inserting the following:
            ``(2) Disability.--
                    ``(A) In general.--The term `disability' means--
                            ``(i) a physical or mental impairment;
                            ``(ii) a record of a physical or mental 
                        impairment; or
                            ``(iii) being regarded as having a physical 
                        or mental impairment.
                    ``(B) Rule of construction.--
                            ``(i) Determination of impairment.--The 
                        determination of whether an individual has a 
                        physical or mental impairment shall be made 
                        without regard to--
                                    ``(I) whether the individual uses a 
                                mitigating measure;
                                    ``(II) the impact of any mitigating 
                                measures the individual may or may not 
                                be using;
                                    ``(III) whether any manifestation 
                                of the impairment is episodic; or
                                    ``(IV) whether the impairment is in 
                                remission or latent.
                            ``(ii) Mitigating measures.--The term 
                        `mitigating measure' means any treatment, 
                        medication, device, or other measure used to 
                        eliminate, mitigate, or compensate for the 
                        effect of an impairment, and includes 
                        prescription and other medications, personal 
                        aids and devices (including assistive 
                        technology devices and services), reasonable 
                        accommodations, and auxiliary aids and 
                        services.''; and
            (2) by redesignating paragraph (3) as paragraph (7) and 
        inserting after paragraph (2) the following:
            ``(3) Mental impairment.--The term `mental', used with 
        respect to an impairment, means any mental or psychological 
        disorder such as mental retardation, organic brain syndrome, 
        emotional or mental illness, or specific learning disability.
            ``(4) Physical impairment.--The term `physical', used with 
        respect to an impairment, means any physiological disorder or 
        condition, cosmetic disfigurement, or anatomical loss affecting 
        1 or more of the following body systems:
                    ``(A) Neurological.
                    ``(B) Musculoskeletal.
                    ``(C) Special sense organs.
                    ``(D) Respiratory, including speech organs.
                    ``(E) Cardiovascular.
                    ``(F) Reproductive.
                    ``(G) Digestive.
                    ``(H) Genitourinary.
                    ``(I) Hemic and lymphatic.
                    ``(J) Skin.
                    ``(K) Endocrine.
            ``(5) Record of a physical or mental impairment.--The term 
        `record of a physical or mental impairment' means a history of, 
        or a misclassification as having, a physical or mental 
        impairment.
            ``(6) Regarded as having a physical or mental impairment.--
        The term `regarded as having a physical or mental impairment' 
        means perceived or treated as having a physical or mental 
        impairment, whether or not the individual involved has an 
        impairment.''.

SEC. 5. ADVERSE ACTION.

    The Americans with Disabilities Act of 1990 is amended by inserting 
after section 3 (42 U.S.C. 12102) the following:

``SEC. 4. ADVERSE ACTION.

    ``An adverse action taken by an entity covered under this Act 
against an individual because of that individual's use of a mitigating 
measure or because of a side effect or other consequence of the use of 
such a measure shall constitute discrimination under this Act.''.

SEC. 6. DISCRIMINATION ON THE BASIS OF DISABILITY.

    Section 102 of the Americans with Disabilities Act of 1990 (42 
U.S.C. 12112) is amended--
            (1) in subsection (a), by striking ``against a qualified 
        individual with a disability because of the disability of such 
        individual'' and inserting ``against an individual on the basis 
        of disability''; and
            (2) in subsection (b), in the matter preceding paragraph 
        (1), by striking the term ``discriminate'' and inserting 
        ``discriminate against an individual on the basis of 
        disability''.

SEC. 7. QUALIFIED INDIVIDUAL.

    Section 103(a) of the Americans with Disabilities Act of 1990 (42 
U.S.C. 2113(a)) is amended by striking ``that an alleged'' and 
inserting ``that--
            ``(1) the individual alleging discrimination under this 
        title is not a qualified individual with a disability; or
            ``(2) an alleged''.

SEC. 8. RULE OF CONSTRUCTION.

    Section 501 of the Americans with Disabilities Act of 1990 (42 
U.S.C. 12201) is amended by adding at the end the following:
    ``(e) Broad Construction.--In order to ensure that this Act 
achieves the purpose of providing a comprehensive prohibition of 
discrimination on the basis of disability and to advance the remedial 
purpose of this Act, the provisions of this Act shall be broadly 
construed.
    ``(f) Regulations.--
            ``(1) In general.--Not later than 180 days after the date 
        of enactment of the Americans with Disabilities Act Restoration 
        Act of 2007--
                    ``(A) the Attorney General, the Equal Employment 
                Opportunity Commission, and the Secretary of 
                Transportation shall issue regulations described in 
                sections 106, 204, 223, 229, 244, and 306, as 
                appropriate, including regulations that implement 
                sections 3 and 4, to carry out the corresponding 
                provisions of this Act, as this Act is amended by the 
                Americans with Disabilities Act Restoration Act of 
                2007; and
                    ``(B) the Architectural and Transportation Barriers 
                Compliance Board shall issue supplementary guidelines 
                described in section 504, to supplement the existing 
                Minimum Guidelines and Requirements for Accessible 
                Design for purposes of titles II and III of this Act, 
                as this Act is amended by the Americans with 
                Disabilities Act Restoration Act of 2007.
            ``(2) Construction.--Nothing in this subsection shall be 
        construed to limit the authority of an officer or agency 
        described in paragraph (1) to issue regulations or guidelines 
        under any other provision of this Act, other than this 
        subsection.
    ``(g) Deference to Regulations and Guidance.--Duly issued Federal 
regulations and guidance for the implementation of the Americans with 
Disabilities Act of 1990, including provisions implementing and 
interpreting the definition of disability, shall be entitled to 
deference by administrative agencies or officers, and courts, deciding 
an issue in any action brought under this Act.''.
                                 <all>