[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 3406 Placed on Calendar Senate (PCS)]






                                                       Calendar No. 927
110th CONGRESS
  2d Session
                                S. 3406

      To restore the intent and protections of the Americans with 
                       Disabilities Act of 1990.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             July 31, 2008

Mr. Harkin (for himself, Mr. Hatch, Mr. Kennedy, Mr. Enzi, Mr. Specter, 
     Mr. Obama, Mr. McCain, Mr. Dodd, Mr. Gregg, Mrs. Clinton, Mr. 
   Alexander, Mr. Johnson, Mr. Roberts, Mr. Kerry, Mr. Coleman, Mr. 
  Feingold, Ms. Snowe, Mr. Leahy, Mr. Burr, Mr. Brown, Mr. Smith, Mr. 
  Durbin, Ms. Murkowski, Mr. Lautenberg, Mr. Warner, Mr. Sanders, Mr. 
   Brownback, Mr. Reed, Mr. Martinez, Ms. Mikulski, Mr. Isakson, Mr. 
Casey, Mr. Craig, Mrs. Murray, Mr. Bennett, Ms. Landrieu, Ms. Collins, 
 Mr. Biden, Mr. Allard, Mr. Nelson of Florida, Mr. Sununu, Mr. Cardin, 
  Mr. Thune, Mr. Levin, Mr. Barrasso, Mrs. McCaskill, Mr. Crapo, Mr. 
   Schumer, Mr. Stevens, Mr. Salazar, Mr. Voinovich, Mr. Tester, Mr. 
  Cochran, Mr. Reid, Mr. Lugar, Mr. Chambliss, Mrs. Dole, Mrs. Boxer, 
 Mrs. Feinstein, Ms. Klobuchar, Ms. Stabenow, Mr. Kohl, Mrs. Lincoln, 
 Mr. Menendez, and Mr. Wyden) introduced the following bill; which was 
                          read the first time

                             August 1, 2008

            Read the second time and placed on the calendar

_______________________________________________________________________

                                 A BILL


 
      To restore the intent and protections of the Americans with 
                       Disabilities Act of 1990.

    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 ``ADA Amendments Act of 2008''.

SEC. 2. FINDINGS AND PURPOSES.

    (a) Findings.--Congress finds that--
            (1) in enacting the Americans with Disabilities Act of 1990 
        (ADA), Congress intended that the Act ``provide a clear and 
        comprehensive national mandate for the elimination of 
        discrimination against individuals with disabilities'' and 
        provide broad coverage;
            (2) in enacting the ADA, Congress recognized that physical 
        and mental disabilities in no way diminish a person's right to 
        fully participate in all aspects of society, but that people 
        with physical or mental disabilities are frequently precluded 
        from doing so because of prejudice, antiquated attitudes, or 
        the failure to remove societal and institutional barriers;
            (3) while Congress expected that the definition of 
        disability under the ADA would be interpreted consistently with 
        how courts had applied the definition of a handicapped 
        individual under the Rehabilitation Act of 1973, that 
        expectation has not been fulfilled;
            (4) the holdings of the Supreme Court in Sutton v. United 
        Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases 
        have narrowed the broad scope of protection intended to be 
        afforded by the ADA, thus eliminating protection for many 
        individuals whom Congress intended to protect;
            (5) the holding of the Supreme Court in Toyota Motor 
        Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) 
        further narrowed the broad scope of protection intended to be 
        afforded by the ADA;
            (6) as a result of these Supreme Court cases, lower courts 
        have incorrectly found in individual cases that people with a 
        range of substantially limiting impairments are not people with 
        disabilities;
            (7) in particular, the Supreme Court, in the case of Toyota 
        Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 
        (2002), interpreted the term ``substantially limits'' to 
        require a greater degree of limitation than was intended by 
        Congress; and
            (8) Congress finds that the current Equal Employment 
        Opportunity Commission ADA regulations defining the term 
        ``substantially limits'' as ``significantly restricted'' are 
        inconsistent with congressional intent, by expressing too high 
        a standard.
    (b) Purposes.--The purposes of this Act are--
            (1) to carry out the ADA's objectives of providing ``a 
        clear and comprehensive national mandate for the elimination of 
        discrimination'' and ``clear, strong, consistent, enforceable 
        standards addressing discrimination'' by reinstating a broad 
        scope of protection to be available under the ADA;
            (2) to reject the requirement enunciated by the Supreme 
        Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) 
        and its companion cases that whether an impairment 
        substantially limits a major life activity is to be determined 
        with reference to the ameliorative effects of mitigating 
        measures;
            (3) to reject the Supreme Court's reasoning in Sutton v. 
        United Air Lines, Inc., 527 U.S. 471 (1999) with regard to 
        coverage under the third prong of the definition of disability 
        and to reinstate the reasoning of the Supreme Court in School 
        Board of Nassau County v. Arline, 480 U.S. 273 (1987) which set 
        forth a broad view of the third prong of the definition of 
        handicap under the Rehabilitation Act of 1973;
            (4) to reject the standards enunciated by the Supreme Court 
        in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 
        U.S. 184 (2002), that the terms ``substantially'' and ``major'' 
        in the definition of disability under the ADA ``need to be 
        interpreted strictly to create a demanding standard for 
        qualifying as disabled,'' and that to be substantially limited 
        in performing a major life activity under the ADA ``an 
        individual must have an impairment that prevents or severely 
        restricts the individual from doing activities that are of 
        central importance to most people's daily lives'';
            (5) to convey congressional intent that the standard 
        created by the Supreme Court in the case of Toyota Motor 
        Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) 
        for ``substantially limits'', and applied by lower courts in 
        numerous decisions, has created an inappropriately high level 
        of limitation necessary to obtain coverage under the ADA, to 
        convey that it is the intent of Congress that the primary 
        object of attention in cases brought under the ADA should be 
        whether entities covered under the ADA have complied with their 
        obligations, and to convey that the question of whether an 
        individual's impairment is a disability under the ADA should 
        not demand extensive analysis; and
            (6) to express Congress' expectation that the Equal 
        Employment Opportunity Commission will revise that portion of 
        its current regulations that defines the term ``substantially 
        limits'' as ``significantly restricted'' to be consistent with 
        this Act, including the amendments made by this Act.

SEC. 3. CODIFIED FINDINGS.

    Section 2(a) of the Americans with Disabilities Act of 1990 (42 
U.S.C. 12101) is amended--
            (1) by amending paragraph (1) to read as follows:
            ``(1) physical or mental disabilities in no way diminish a 
        person's right to fully participate in all aspects of society, 
        yet many people with physical or mental disabilities have been 
        precluded from doing so because of discrimination; others who 
        have a record of a disability or are regarded as having a 
        disability also have been subjected to discrimination;'';
            (2) by striking paragraph (7); and
            (3) by redesignating paragraphs (8) and (9) as paragraphs 
        (7) and (8), respectively.

SEC. 4. DISABILITY DEFINED AND RULES OF CONSTRUCTION.

    (a) Definition of Disability.--Section 3 of the Americans with 
Disabilities Act of 1990 (42 U.S.C. 12102) is amended to read as 
follows:

``SEC. 3. DEFINITION OF DISABILITY.

    ``As used in this Act:
            ``(1) Disability.--The term `disability' means, with 
        respect to an individual--
                    ``(A) a physical or mental impairment that 
                substantially limits one or more major life activities 
                of such individual;
                    ``(B) a record of such an impairment; or
                    ``(C) being regarded as having such an impairment 
                (as described in paragraph (3)).
            ``(2) Major life activities.--
                    ``(A) In general.--For purposes of paragraph (1), 
                major life activities include, but are not limited to, 
                caring for oneself, performing manual tasks, seeing, 
                hearing, eating, sleeping, walking, standing, lifting, 
                bending, speaking, breathing, learning, reading, 
                concentrating, thinking, communicating, and working.
                    ``(B) Major bodily functions.--For purposes of 
                paragraph (1), a major life activity also includes the 
                operation of a major bodily function, including but not 
                limited to, functions of the immune system, normal cell 
                growth, digestive, bowel, bladder, neurological, brain, 
                respiratory, circulatory, endocrine, and reproductive 
                functions.
            ``(3) Regarded as having such an impairment.--For purposes 
        of paragraph (1)(C):
                    ``(A) An individual meets the requirement of `being 
                regarded as having such an impairment' if the 
                individual establishes that he or she has been 
                subjected to an action prohibited under this Act 
                because of an actual or perceived physical or mental 
                impairment whether or not the impairment limits or is 
                perceived to limit a major life activity.
                    ``(B) Paragraph (1)(C) shall not apply to 
                impairments that are transitory and minor. A transitory 
                impairment is an impairment with an actual or expected 
                duration of 6 months or less.
            ``(4) Rules of construction regarding the definition of 
        disability.--The definition of `disability' in paragraph (1) 
        shall be construed in accordance with the following:
                    ``(A) The definition of disability in this Act 
                shall be construed in favor of broad coverage of 
                individuals under this Act, to the maximum extent 
                permitted by the terms of this Act.
                    ``(B) The term `substantially limits' shall be 
                interpreted consistently with the findings and purposes 
                of the ADA Amendments Act of 2008.
                    ``(C) An impairment that substantially limits one 
                major life activity need not limit other major life 
                activities in order to be considered a disability.
                    ``(D) An impairment that is episodic or in 
                remission is a disability if it would substantially 
                limit a major life activity when active.
                    ``(E)(i) The determination of whether an impairment 
                substantially limits a major life activity shall be 
                made without regard to the ameliorative effects of 
                mitigating measures such as--
                            ``(I) medication, medical supplies, 
                        equipment, or appliances, low-vision devices 
                        (which do not include ordinary eyeglasses or 
                        contact lenses), prosthetics including limbs 
                        and devices, hearing aids and cochlear implants 
                        or other implantable hearing devices, mobility 
                        devices, or oxygen therapy equipment and 
                        supplies;
                            ``(II) use of assistive technology;
                            ``(III) reasonable accommodations or 
                        auxiliary aids or services; or
                            ``(IV) learned behavioral or adaptive 
                        neurological modifications.
                    ``(ii) The ameliorative effects of the mitigating 
                measures of ordinary eyeglasses or contact lenses shall 
                be considered in determining whether an impairment 
                substantially limits a major life activity.
                    ``(iii) As used in this subparagraph--
                            ``(I) the term `ordinary eyeglasses or 
                        contact lenses' means lenses that are intended 
                        to fully correct visual acuity or eliminate 
                        refractive error; and
                            ``(II) the term `low-vision devices' means 
                        devices that magnify, enhance, or otherwise 
                        augment a visual image.''.
    (b) Conforming Amendment.--The Americans with Disabilities Act of 
1990 (42 U.S.C. 12101 et seq.) is further amended by adding after 
section 3 the following:

``SEC. 4. ADDITIONAL DEFINITIONS.

    ``As used in this Act:
            ``(1) Auxiliary aids and services.--The term `auxiliary 
        aids and services' includes--
                    ``(A) qualified interpreters or other effective 
                methods of making aurally delivered materials available 
                to individuals with hearing impairments;
                    ``(B) qualified readers, taped texts, or other 
                effective methods of making visually delivered 
                materials available to individuals with visual 
                impairments;
                    ``(C) acquisition or modification of equipment or 
                devices; and
                    ``(D) other similar services and actions.
            ``(2) State.--The term `State' means each of the several 
        States, the District of Columbia, the Commonwealth of Puerto 
        Rico, Guam, American Samoa, the Virgin Islands of the United 
        States, the Trust Territory of the Pacific Islands, and the 
        Commonwealth of the Northern Mariana Islands.''.
    (c) Amendment to the Table of Contents.--The table of contents 
contained in section 1(b) of the Americans with Disabilities Act of 
1990 is amended by striking the item relating to section 3 and 
inserting the following items:

``Sec. 3. Definition of disability.
``Sec. 4. Additional definitions.''.

SEC. 5. DISCRIMINATION ON THE BASIS OF DISABILITY.

    (a) 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 ``with a disability 
        because of the disability of such individual'' and inserting 
        ``on the basis of disability''; and
            (2) in subsection (b) in the matter preceding paragraph 
        (1), by striking ``discriminate'' and inserting ``discriminate 
        against a qualified individual on the basis of disability''.
    (b) Qualification Standards and Tests Related to Uncorrected 
Vision.--Section 103 of the Americans with Disabilities Act of 1990 (42 
U.S.C. 12113) is amended by redesignating subsections (c) and (d) as 
subsections (d) and (e), respectively, and inserting after subsection 
(b) the following new subsection:
    ``(c) Qualification Standards and Tests Related to Uncorrected 
Vision.--Notwithstanding section 3(4)(E)(ii), a covered entity shall 
not use qualification standards, employment tests, or other selection 
criteria based on an individual's uncorrected vision unless the 
standard, test, or other selection criteria, as used by the covered 
entity, is shown to be job-related for the position in question and 
consistent with business necessity.''.
    (c) Conforming Amendments.--
            (1) Section 101(8) of the Americans with Disabilities Act 
        of 1990 (42 U.S.C. 12111(8)) is amended--
                    (A) in the paragraph heading, by striking ``with a 
                disability''; and
                    (B) by striking ``with a disability'' after 
                ``individual'' both places it appears.
            (2) Section 104(a) of the Americans with Disabilities Act 
        of 1990 (42 U.S.C. 12114(a)) is amended by striking ``the term 
        `qualified individual with a disability' shall'' and inserting 
        ``a qualified individual with a disability shall''.

SEC. 6. RULES OF CONSTRUCTION.

    (a) Title V of the Americans with Disabilities Act of 1990 (42 
U.S.C. 12201 et seq.) is amended--
            (1) by adding at the end of section 501 the following:
    ``(e) Benefits Under State Worker's Compensation Laws.--Nothing in 
this Act alters the standards for determining eligibility for benefits 
under State worker's compensation laws or under State and Federal 
disability benefit programs.
    ``(f) Fundamental Alteration.--Nothing in this Act alters the 
provision of section 302(b)(2)(A)(ii), specifying that reasonable 
modifications in policies, practices, or procedures shall be required, 
unless an entity can demonstrate that making such modifications in 
policies, practices, or procedures, including academic requirements in 
postsecondary education, would fundamentally alter the nature of the 
goods, services, facilities, privileges, advantages, or accommodations 
involved.
    ``(g) Claims of No Disability.--Nothing in this Act shall provide 
the basis for a claim by an individual without a disability that the 
individual was subject to discrimination because of the individual's 
lack of disability.
    ``(h) Reasonable Accommodations and Modifications.--A covered 
entity under title I, a public entity under title II, and any person 
who owns, leases (or leases to), or operates a place of public 
accommodation under title III, need not provide a reasonable 
accommodation or a reasonable modification to policies, practices, or 
procedures to an individual who meets the definition of disability in 
section 3(1) solely under subparagraph (C) of such section.'';
            (2) by redesignating section 506 through 514 as sections 
        507 through 515, respectively, and adding after section 505 the 
        following:

``SEC. 506. RULE OF CONSTRUCTION REGARDING REGULATORY AUTHORITY.

    ``The authority to issue regulations granted to the Equal 
Employment Opportunity Commission, the Attorney General, and the 
Secretary of Transportation under this Act includes the authority to 
issue regulations implementing the definitions of disability in section 
3 (including rules of construction) and the definitions in section 4, 
consistent with the ADA Amendments Act of 2008.''; and
            (3) in section 511 (as redesignated by paragraph (2)) (42 
        U.S.C. 12211), in subsection (c), by striking ``511(b)(3)'' and 
        inserting ``512(b)(3)''.
    (b) The table of contents contained in section 1(b) of the 
Americans with Disabilities Act of 1990 is amended by redesignating the 
items relating to sections 506 through 514 as the items relating to 
sections 507 through 515, respectively, and by inserting after the item 
relating to section 505 the following new item:

``Sec. 506. Rule of construction regarding regulatory authority.''.

SEC. 7. CONFORMING AMENDMENTS.

    Section 7 of the Rehabilitation Act of 1973 (29 U.S.C. 705) is 
amended--
            (1) in paragraph (9)(B), by striking ``a physical'' and all 
        that follows through ``major life activities'', and inserting 
        ``the meaning given it in section 3 of the Americans with 
        Disabilities Act of 1990 (42 U.S.C. 12102)''; and
            (2) in paragraph (20)(B), by striking ``any person who'' 
        and all that follows through the period at the end, and 
        inserting ``any person who has a disability as defined in 
        section 3 of the Americans with Disabilities Act of 1990 (42 
        U.S.C. 12102).''.

SEC. 8. EFFECTIVE DATE.

    This Act and the amendments made by this Act shall become effective 
on January 1, 2009.
                                                       Calendar No. 927

110th CONGRESS

  2d Session

                                S. 3406

_______________________________________________________________________

                                 A BILL

      To restore the intent and protections of the Americans with 
                       Disabilities Act of 1990.

_______________________________________________________________________

                             August 1, 2008

            Read the second time and placed on the calendar