[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.''.
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