[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
ADA RESTORATION ACT OF 2007
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS, AND CIVIL LIBERTIES
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
ON
H.R. 3195
__________
OCTOBER 4, 2007
__________
Serial No. 110-59
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
U.S. GOVERNMENT PRINTING OFFICE
38-114 PDF WASHINGTON DC: 2008
---------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866)512-1800
DC area (202)512-1800 Fax: (202) 512-2250 Mail Stop SSOP,
Washington, DC 20402-0001
COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
MAXINE WATERS, California DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts CHRIS CANNON, Utah
ROBERT WEXLER, Florida RIC KELLER, Florida
LINDA T. SANCHEZ, California DARRELL ISSA, California
STEVE COHEN, Tennessee MIKE PENCE, Indiana
HANK JOHNSON, Georgia J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida
BRAD SHERMAN, California TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
Perry Apelbaum, Staff Director and Chief Counsel
Joseph Gibson, Minority Chief Counsel
------
Subcommittee on the Constitution, Civil Rights, and Civil Liberties
JERROLD NADLER, New York, Chairman
ARTUR DAVIS, Alabama TRENT FRANKS, Arizona
DEBBIE WASSERMAN SCHULTZ, Florida MIKE PENCE, Indiana
KEITH ELLISON, Minnesota DARRELL ISSA, California
JOHN CONYERS, Jr., Michigan STEVE KING, Iowa
ROBERT C. SCOTT, Virginia JIM JORDAN, Ohio
MELVIN L. WATT, North Carolina
STEVE COHEN, Tennessee
David Lachmann, Chief of Staff
Paul B. Taylor, Minority Counsel
C O N T E N T S
----------
OCTOBER 4, 2007
Page
THE BILL
H.R. 3193, the ``ADA Restoration Act of 2007''................... 2
OPENING STATEMENTS
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Chairman, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 1
The Honorable Trent Franks, a Representative in Congress from the
State of Arizona, and Ranking Member, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties................ 14
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, Member, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties, and Chairman,
Committee on the Judiciary..................................... 15
WITNESSES
The Honorable Steny H. Hoyer, a Representative in Congress from
the State of Maryland, and Majority Leader, U.S. House of
Representatives
Oral Testimony................................................. 16
Ms. Cheryl Sensenbrenner, Chair, American Association of People
with Disabilities
Oral Testimony................................................. 21
Prepared Statement.............................................
2
Mr. Stephen C. Orr
Oral Testimony................................................. 26
Prepared Statement............................................. 27
Mr. Michael C. Collins, Executive Director, National Council on
Disability
Oral Testimony................................................. 37
Prepared Statement............................................. 40
Mr. Lawrence Z. Lorber, U.S. Chamber of Commerce
Oral Testimony................................................. 50
Prepared Statement............................................. 52
Ms. Chai R. Feldblum, Professor, Georgetown University Law Center
Oral Testimony................................................. 62
Prepared Statement............................................. 64
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statements of Charles Littleton......................... 31
Prepared Statements of Darbara Littleton......................... 32
APPENDIX
Material Submitted for the Hearing Record........................ 85
ADA RESTORATION ACT OF 2007
----------
THURSDAY, OCTOBER 4, 2007
House of Representatives,
Subcommittee on the Constitution,
Civil Rights, and Civil Liberties,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:11 a.m., in
Room 2141, Rayburn House Office Building, the Honorable Jerrold
Nadler (Chairman of the Subcommittee) presiding.
Present: Representatives Conyers, Nadler, Davis, Wasserman
Schultz, Franks, and Issa.
Also present: Representative Sensenbrenner.
Staff present: David Lachmann, Subcommittee Chief of Staff;
Heather Sawyer, Majority Counsel; Susana Gutierrez,
Professional Staff Member; and Paul Taylor, Minority Counsel.
Mr. Nadler. This hearing of the Subcommittee on the
Constitution, Civil Rights, and Civil Liberties will come to
order.
Today's hearing will examine the current state of the
Americans with Disabilities Act and H.R. 3195, the ``ADA
Restoration Act of 2007.''
[The bill, H.R. 3195, follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Nadler. The Chair recognizes himself for 5 minutes for
an opening statement.
The Americans with Disabilities Act is a success story, but
it is also a promise that has yet to be fulfilled. Its coverage
and its enforcement do not ensure full access to American life.
I believe we have waited long enough and we really cannot
afford to let these wrongs go unaddressed longer.
Although it often gets lost in the debate, the ADA is a
civil rights bill. It is often treated as if it is something
else. That is because unlike many civil rights laws, this one
requires people to spend money, to make an effort to do what is
right.
I have very little sympathy for complaints of this nature.
No business would make its customers climb a rope to make a
purchase. They provide elevators and a variety of other means
to bring customers in. Yet when it comes to people who need
other ways to enter a building, all of a sudden, it's a huge
problem. That is a wrong perception.
The same is true in employment. A society is poorer when it
fails to take full advantage of the talents of all of its
members.
If not in the name of simple decency and justice, then in
the name of rational self-interest, we must ensure that the
promise of the ADA is fulfilled now. Unfortunately, the Supreme
Court has gone out of its way to undermine Congress' clear
intent. Somehow the Court has erected a monstrous Catch-22, in
which an individual can face discrimination on the basis of an
actual or perceived disability and yet be deemed not
sufficiently disabled to trigger a legal remedy under the ADA.
That defies logic, it defies reason and it defies the plain
text of the ADA. Where in the act does it say, as the Court has
found, that mitigating measures must be taken into account when
determining whether an individual is disabled?
In fact, Congress said just the opposite. The report on the
ADA said, ``whether a person has a disability should be
assessed without regard to the availability of mitigating
measures. . . . For example, a person who is hard of hearing is
substantially limited in the major life activity of hearing,
even though the loss may be corrected through the use of a
hearing aid. Likewise, persons with impairments such as
epilepsy or diabetes, which substantially limit a major life
activity, are covered under the first prong of the definition
of disability, even if the effects of the impairment are
controlled by medication.''
Somehow Congress wasn't clear enough for the Court. As a
result, people whose vision is correctible with glasses or
whose epilepsy can be controlled with medication are not
considered disabled under the Court ruling. So we are in the
odd position in which Congress says that a person is disabled,
the ADA says they are disabled, they suffer discrimination
because they are disabled, but the Supreme Court says they
cannot get to Court because they are not disabled.
The ADA Restoration Act, which was introduced by our
distinguished majority leader, and I always am interested when
we see a bill called the so-and-so restoration act, because it
means we think the Supreme Court has misinterpreted what
Congress said, which it often has. But the ADA Restoration Act,
which was introduced by our distinguished majority leader Mr.
Hoyer, and which has bipartisan support in this Committee,
which includes myself, the Ranking Member of the Subcommittee,
the Chairman of the full Committee, is necessary if only to
tell the Court that we really meant what we said.
While these changes are long overdue, they are also
especially timely. Thousands of our men and women in uniform
are returning home with serious injuries, including the loss of
limbs, head trauma, damage to their vision and their hearing
and a variety of other life-altering injuries. We cannot stand
by and allow them to come home to face discrimination without a
legal remedy.
Anyone who has ever made a speech about supporting our
troops should have a special interest in the passage of this
bill. We owe these young Americans no less.
I am pleased that we have such distinguished witnesses
today who will help layout the problem and who will discuss the
kinds of solutions necessary to ensure that the promise of the
ADA is fulfilled. I would also like to take a moment to
acknowledge the many guests who are here today to attend this
hearing. I want the record to reflect the enormous grassroots
support for this endeavor.
To assist in the fullest participation possible, the
Committee has provided for this room to be accessible and for
sign language interpreter and closed captioning. I can ensure
everyone it wasn't hard at all to arrange.
I welcome our witnesses. I yield back the balance of my
time.
I would now recognize our distinguished Ranking minority
Member, the gentleman from Arizona, Mr. Franks, for his opening
statement.
Mr. Franks. Thank you, Mr. Chairman.
Mr. Chairman, I also welcome the majority leader, the
distinguished gentleman. I appreciate you being here today,
sir.
Mr. Chairman, let me begin by saying I strongly support the
Americans with Disabilities Act. For too long members of the
disabled community were forced to cope not only with their own
disabilities but with the invidious discrimination practiced by
others.
Congress rightfully corrected that wrong in 1990 when it
passed the Americans with Disabilities Act, with the strong
support of then-President Bush.
The ADA defines disability as, ``A physical or mental
impairment that substantially limits one or more of the major
life activities of such individual; a record of such impairment
or being regarded as having such an impairment.''
In 1999, the Supreme Court handed down three cases on the
same day that addressed this definition. Those three cases and
another more recent case were all decided unanimously or by a
7-2 vote. In interpreting the scope of the ADA, the Supreme
Court looked to the Congressional findings codified in the Act
which direct its application to 43 million disabled Americans,
namely those Americans who have an impairment that
substantially limits one or more of their major life
activities.
The legislation we discuss today would, among other things,
strike those words from the ADA, and I look forward to
exploring ramifications of that with the witnesses here today
and with the hope of making sure that H.R. 3195 strikes a just
balance in all ways.
In Sutton v. United Airlines, with Justice O'Connor writing
the majority opinion in which David Souter joined, and with
Justice Ginsberg concurring in the judgment, the Supreme Court
stated, ``We hold that the determination of whether an
individual is disabled should be made with reference to
measures that mitigate the individuals impairment, including in
this instance eyeglasses and contact lenses.''
The Court reasoned as follows, ``Looking at the act as a
whole, it is apparent that if a person is taking measures to
correct for or mitigate a physical or mental impairment, the
effects of those measures, both positive and negative, must be
taken into account when judging whether that person is, quote,
'substantially limited' in a major life activity and, thus,
disabled under the act. A disability exists only where an
impairment substantially limits a major life activity, not
where it might, could or would be substantially limiting if
mitigating measures were not taken. To be sure, a person whose
physical or mental impairment is corrected by mitigating
measures still has an impairment, but if the impairment is
corrected, it does not substantially limit a major life
activity. Whether a person has a disability under the ADA is an
individual inquiry.''
Now, I understand that there remain certain concerns
regarding the effects of Sutton and other Supreme Court
decisions, and I am a cosponsor of H.R. 3195, but I do want to
say that I have some concerns that H.R. 3195 as currently
drafted may go beyond even what the sponsors of the bill are
intending, and I hope this will be considered as this bill
moves through the process.
Mr. Chairman, I am fortunate to have one of the most
productive members of my staff, a gentleman by the name of
Brian Van Hovel, that has Charcot-Marie-Tooth Disease that
completely paralyzes him except from--he is only able to turn
his head. That is the only physical capability he has other
than his speech. His lungs are charged with air and yet he
speaks through his computer and is literally, truly, one of the
most productive members we have of our staff. And so I hope
that he is listening here today, because in large part he is in
my heart as we move through these proceedings.
I look forward to hearing from our witnesses. Again, I
welcome the majority leader, and I am especially pleased to see
my colleague and former Chairman, Jim Sensenbrenner's wife,
Cheryl, here with us today. I look forward to hearing from all
of you.
Thank you, Mr. Chairman.
Mr. Nadler. Thank you.
In the interest of proceeding to our witness and mindful of
our busy schedules, I would ask that other Members submit their
statements for the record.
I will withdraw that and recognize the Chairman of the full
Committee.
Mr. Conyers. It is my pleasure to ask unanimous consent to
enter my statement into the record, because 17 years ago we
marched up this Hill and now here we are again, reexamining the
decisions of the Supreme Court and we are very constructive.
I am proud to be a cosponsor, and I said at this point in
my career, Mr. Hoyer, that I would never repeat anything that
anybody had said before me. The only problem is, I wanted to
point out that the most active supporter of the Americans with
Disabilities Act is Cheryl Sensenbrenner, but I was co-opted on
that, so I will ask unanimous consent to put my statement in
the record.
Thank you very much.
[The prepared statement of Mr. Conyers is available in the
Appendix.]
Mr. Nadler. Without objection. And I would ask that other
Members submit their statements for the record.
Without objection, all Members will have 5 legislative days
to submit opening statements for inclusion in the record.
Without objection, the Chair will be authorized to declare
a recess of the hearing, although the Chair hopes we won't have
to do that.
As we ask questions of our witnesses, the Chair will
recognize Members in the order they are in the Subcommittee,
alternating between majority and minority, provided that the
Member is present when his or her turn arrives. Members who are
not present when their turn begins will be recognized after the
other Members have had the opportunity to ask their questions.
The Chair reserves the right to accommodate a Member who is
unavoidably late or only able to be with us for a short time.
Our first witness is the Honorable Steny Hoyer, the
majority leader of the House of Representatives, and
importantly the representative of Maryland's Fifth
Congressional District. Now serving his 14th term in Congress,
he also became the longest-serving Member of the U.S. House of
Representatives from Maryland in history on June 4, 2007.
Among his other accomplishments, Congressman Hoyer is
perhaps best known for guiding the landmark Americans with
Disabilities Act to passage. He has continued his leadership in
fighting for the rights of the disabled. He was elected to the
Maryland Senate at the age of 27, and just a few years later at
the age of 35, he was elected president of the Senate, the
youngest ever in State history.
I am pleased to welcome our distinguished colleague to the
Subcommittee. Your written statement will be made part of the
record in its entirety. I would ask you to now summarize your
testimony in 5 minutes or less. To help you stay within that
time, as you know, there is a timing light at the table. When 1
minute remains, the light will switch from green to yellow,
then red when the 5 minutes are up.
Now that we have gone through the usual paraphernalia, I am
glad to recognize the witness and you may proceed.
TESTIMONY OF THE HONORABLE STENY H. HOYER, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MARYLAND, AND MAJORITY LEADER, U.S.
HOUSE OF REPRESENTATIVES
Mr. Hoyer. Thank you very much for this opportunity to
appear before this Committee and thank you for proceeding
quickly, Chairman Nadler and Ranking Member Franks, thank you
very much for your remarks and for your co-sponsorship of this
legislation.
The distinguished Chairman of the Committee, John Conyers,
my good and dear friend, who has been a giant in terms of
ensuring that all Americans have their rights observed as the
Constitution perceived, was an extraordinarily effective and
important leader in the adoption of the Americans with
Disabilities Act, working with the first President Bush, who
signed this legislation.
And I also want to thank my good friend and cosponsor of
this legislation, he and I are partners in this effort, Jim
Sensenbrenner. It has been observed now twice, I will observe a
third time, and maybe I think I mention it in my remarks as
well, that Cheryl Sensenbrenner has been herself a giant in not
only the initial adoption of the Americans with Disabilities
Act but during those 17 years that have transpired since that
time, been an extraordinarily effective advocate.
I want to thank the other Members of the Subcommittee for
being with us as well.
Let me make an observation at the outset. This legislation
essentially adopts the premise to all the courts, Supreme and
otherwise, perhaps we weren't as clear as we needed to be on
what we clearly intended.
If in fact we weren't as clear and, therefore, you
interpreted it differently, then it is essential for us to pass
this legislation, to clarify what clearly, unequivocally and
absolutely was our intent.
I want to thank you for holding this hearing. Let me assure
you that one of the things at the outset of my testimony. The
purpose of this legislation is straightforward and unambiguous.
The bill does not seek to expand the rights guaranteed under
the landmark Americans with Disabilities Act. Mr. Franks had
expressed that concern, and that focused and said, it seeks to
clarify the law, restoring the scope of protection available
under the ADA, responding to Court decisions that have sharply
restricted the class of people who can invoke protection under
the law and reinstating the original congressional intent when
the ADA passed.
Mr. Sensenbrenner and I have talked about that. That is and
was our intent and continues to be.
When the first President Bush signed the ADA into law on
July 26, 1990, he hailed it as, ``The world's first
comprehensive declaration of equality for people with
disabilities. This landmark civil rights law prohibited
discrimination against Americans with disabilities in the
workplace, public accommodations and other settings. We knew
that it would not topple centuries of prejudice overnight. But
we believed that it could change attitudes and unleash the
talents of millions of Americans with disabilities.
And we were right. Since its enactment, thousands of
Americans with disabilities have entered the workplace,
realizing self-sufficiency for the first time in their lives.
However, despite our progress, the courts, including the U.S.
Supreme Court, have narrowly interpreted the ADA, limiting its
scope and undermining its intent. That is the purpose of this
legislation, to clarify that intent.
Let me be clear. When we wrote the ADA, we intentionally
used a definition of disability that was broad, borrowing from
an existing definition from the Rehab Act of 1973. We did this
because the courts had generously interpreted this definition
in the Rehabilitation Act and we thought using established
language could help avoid a potentially divisive political
debate over the definition of disability. Unfortunately, we
made a mistake.
Therefore, we could not have fathomed that people with
diabetes, epilepsy, heart conditions, cancer, mental illnesses
and other disabilities would have their ADA claims denied
because with medication they would be considered too functional
to meet the definition of disabled. Nor could we have fathomed
a situation where the individual may be considered too disabled
by an employer to get a job, but not disabled enough by the
courts to be protected by the ADA from discrimination. What a
contradictory position that would have been for the Congress to
take.
The Supreme Court's decision in Sutton, Kirkingnirg and
Murphy in 1999 and Toyota Manufacturing in 2002 are, simply
put, misinterpretations of what we intended and, in my opinion,
of the law.
In Toyota, for example, Justice O'Connor writing for the
Court, said the terms ``substantially limited'' and ``major
life activities'' need to be ``strictly interpreted to create a
demanding standard for qualifying as disabled.'' The Court went
on to say, ``Substantially limited means to prevent or severely
restrict.''
This was not our intent when Congress passed the ADA. Nor
did we anticipate that, contrary to our explicit instructions,
the Court would eliminate from the act's coverage individuals
who had mitigated the effects of their impairment with
medication or assistive devices, as in Sutton, Murphy and
Kirkingburg.
Again, this is not what Congress intended when it passed
the ADA. Tony Coehlo mitigates his disability. But for us to
have said if he mitigates, my failing to employ Tony Coehlo
because he is an epileptic, but because it is mitigated that
the discrimination somehow does not exist, what an absurd
result that would be.
Simply put, the point of the ADA is not disability. It is
the prevention of wrongful and unlawful discrimination. Let me
give you an example. I am not Catholic, but let's say for the
purpose of argument I was Catholic. And let's say an employer
would not hire me if I were a Catholic. Only if I could prove I
was a Catholic, which I was not, would I be able to claim I am
being discriminated against under the logic of the disability.
That makes no sense, and what we are doing here is to
clarify our intent. H.R. 3195 introduced by myself and
Congressman Sensenbrenner, the former Chairman of the Judiciary
Committee and a strong supporter of this legislation when we
passed it--he and I were partners then--is designed to restore
the broad reach of ADA that we believe was plain in 1990.
Among other things, the bill will, first point, amend the
definition of disability so that people who Congress originally
intended to protect from discrimination are covered under the
ADA. We adopted the original definition, which was broadly
interpreted by the courts in the Rehab Act, but that has not
been the case, which is why we have to take this action, to
restore, not to change, prevent courts from considering
mitigating measures, such as eyeglasses or medication, when
determining whether a person qualifies for protection under the
law, and in addition modify findings in the ADA that have been
used by the courts to support a narrow reading of disability.
Specifically, this bill strikes the finding pertaining to
43 million Americans. We use that figure, Mr. Franks has quoted
it again today, and as well as deleting that, the finding
pertaining to discrete and insular minority. Again, what we are
talking about is discrimination against people, against
individuals, who are guaranteed under our Constitution equal
rights and equal access to opportunity, to life, liberty and
the pursuit of happiness.
Let me conclude by noting that this past July 26 we marked
the 17th anniversary of this landmark law. I believe that its
promise remains unfulfilled, but very much still within reach.
Passage of this legislation, H.R. 3195, is imperative, Mr.
Chairman and Members of this Committee, to restoring
Congressional intent, to achieving the ADA's promise and to
creating a society in which Americans with disabilities can
realize their potential and be the assets to this country that
we know they can be as well as to themselves.
Thank you very much, Mr. Chairman, for this opportunity to
appear before you.
By the way, if you ask me any complicated questions, my
lawyer, as I refer to her, distinguished professor at
Georgetown University, Chai Feldblum, is here. She will be one
of your witnesses, but if the questions are tough I will simply
turn to her, as I did throughout the course of the
consideration of the Americans with Disabilities Act. She did
an extraordinary job working with Congressman Steve Bartlett,
Republican Member of Congress from Texas, elected mayor of
Dallas, now a distinguished representative in the business
community in this city. But I will turn to her for the tough
ones.
Mr. Nadler. Thank you very much.
I know the distinguished majority leader has many demands
on his mind, so do any Members have any questions of the
majority leader?
If not, the gentleman is excused with the thanks of the
Subcommittee, even though he didn't need the assistance of a
counselor for those tough questions.
Mr. Hoyer. Mr. Chairman, those questions I can handle.
Thank you very much.
Mr. Nadler. I would now like to introduce our second panel.
I would invite the second panel to come to the table and be
seated.
Mr. Hoyer. Mr. Chairman?
Mr. Nadler. Withdraw that again.
Without objection, the distinguished majority leader is
recognized again.
Mr. Hoyer. We have one of the most extraordinary
representatives in our presence today. Her husband was a giant,
in league with the Martin Luther Kings and John Lewises as it
relates to those with disabilities.
Justin Dart was my friend. Justin Dart was one of the great
leaders of this country. And I did not note the presence of his
wife, Yoko Dart, who is just an extraordinary human being, and
she has been faithful to Justin's dream and a partner in his
work, and I wanted to recognize her presence.
We thank you for all you have done.
Mr. Nadler. We are pleased to welcome her and----
[Applause.]
Mr. Hoyer. Mr. Chairman, this is Justin Dart's hat, and I
know that he is with us.
Mr. Nadler. We are pleased to welcome her and we are
pleased to welcome Mr. Dart's hat. [Laughter.]
And now would the second panel please assume seats at the
table.
While they are doing that, I will begin the introduction of
our second panel.
Cheryl Sensenbrenner appears today as chairwoman of the
Board of the American Association of People with Disabilities,
the largest national nonprofit trust disability member
organization in the United States. AAPD is dedicated to
ensuring economic self-sufficiency and political empowerment
for the more than 56 million Americans with disabilities.
Mrs. Sensenbrenner has been married to Congressman F. James
Sensenbrenner, our former Chairman, for more than 30 years.
They have two sons, Frank and Bob.
Her younger sister, Tara, has an intellectual disability.
In 1972, as a passenger in a car accident, Mrs. Sensenbrenner
sustained a spinal cord injury at the T12 level. Mrs.
Sensenbrenner has worked in a number of Republican Party
positions, both before and after her injury.
Stephen Orr is a licensed pharmacist from Rapid City, South
Dakota. Mr. Orr experienced discrimination based upon his
diabetes and was found not to be disabled under the Americans
with Disabilities Act. He is here today to share his story with
the Subcommittee.
Mr. Orr has two sons and a daughter and serves as a
volunteer for the American Diabetes Association.
Michael Collins is the executive director of the National
Council on Disability, the NCD. The NCD is an independent
Federal agency charged with advising the President and Congress
about the broad spectrum of issues of importance to people with
disabilities. NCD activities are governed by a 15-member
council that is appointed by the President and confirmed by the
Senate.
Prior to joining NCD, Mr. Collins was the executive
director of the California State Independent Living Center, a
State agency working to maximize opportunities for persons with
disability.
Lawrence Lorber is a partner in the Washington, D.C. office
of Proskauer Rose LLC. Mr. Lorber is an employment law
practitioner who counsels and represents employers in
connection with all aspects of labor and employment law. Mr.
Lorber testifies today on behalf of the Chamber of Commerce,
the world's largest business federation, representing more than
3 million businesses.
Chai Feldblum is a professor of law at Georgetown
University Law Center in Washington and Director of
Georgetown's Federal Legislation Clinic. On behalf of various
organizational clients at the Federal Legislation Clinic,
Professor Feldblum has been involved in a range of Federal
legislative and administrative issues dealing with disability
over the past 15 years, including civil rights, health,
benefits and immigration.
I am pleased to welcome all of you.
As a reminder, each of your written statements will be made
part of the record in its entirety.
I would ask that you now summarize your testimony in 5
minutes or less. To help you stay within that time, there is a
timing light on your table. When 1 minute remains, the light
will switch from green to yellow, and then red when the 5
minutes are up.
It is customary in this Committee on swearing the
witnesses, so would you please--would the witnesses please
stand, those who can.
Will you please hold up your right hand. Do you all swear
or affirm that the testimony you are about to give is the
complete truth as far as you know?
Thank you.
Let the record reflect that all of the witnesses responded
in the affirmative.
We will first hear from Mrs. Sensenbrenner. Mrs.
Sensenbrenner is recognized for 5 minutes.
TESTIMONY OF CHERYL SENSENBRENNER, CHAIR,
AMERICAN ASSOCIATION OF PEOPLE WITH DISABILITIES
Ms. Sensenbrenner. Thank you, Mr. Chairman.
Good morning.
Chairman Nadler, Ranking Member Franks and Members of the
House Judiciary Subcommittee, thank you for the invitation
today to discuss the topic of ADA Restoration, an issue that
affects the ability of literally millions of people with
disabilities, our ability to enter and maintain our
participation in the American workforce.
My name is Cheryl Sensenbrenner, and I am pleased to offer
my testimony today as the board chair of the American
Association of People with Disabilities, AAPD.
AAPD is the largest national cross-disability membership
organization in the United States.
But I must start out my testimony by saying I am so proud
of my husband, Congressman Jim Sensenbrenner, as well as
Majority Leader Hoyer, for their hard work and leadership in
introducing this legislation.
But I will assure you, like them, I will be around, I will
continue to work relentlessly and keep on working on this bill
until it is passed.
But in addition to my affiliation with AAPD, I offer my
testimony today based on my own experiences as a disabled woman
and as a family member of people with disabilities.
I acquired my disability at age 22 when I was in a car
accident. I remember the doctors telling me, because my back
was in pieces and crushed, that I would spend the rest of my
life in bed, operating from bed. I knew I was hurt, but I also
knew I wanted to be a full member of society. I wanted to do
the best I could. So I continued to try hard and do the best I
could with everything I could toward the goal that I had always
dreamed of.
Since that time, I have lived my life using a wheelchair,
Canadian crutches or walking with a cane and a leg brace. And I
am proud of my full life as a disabled woman, as a wife, as a
mom and as a citizen.
When I acquired my spinal cord injury, my sister, Tara, was
born with Downs Syndrome about the same time. But because of
her hard work and the support of our family, Tara graduated
from high school, she has taken some college courses. She has
supported herself through various jobs and she has bought and
insured her own car.
But I am here today to tell you that if and when Tara or I
experience employment discrimination because of our disability,
we will not be protected by the ADA. As Majority Leader Hoyer
said better than I could, the Supreme Court has substituted its
own judgment for the judgment of Congress and that is what has
created the need for the restoration of the ADA that we are
discussing today.
As a consequence of court-made law, we have an absurd
Catch-22. If you manage your disability well, you do the best
you can in spite of your disability, well then, your civil
rights protections are taken away. The courts have taken them
away. But if you don't manage your disability well, you have
civil rights protections, but you probably won't be able to get
a job. That is absurd.
That means because I worked hard in physical therapy and in
many other medical things, because I wear a leg brace and walk
with a cane, the courts would find me not disabled enough to
have civil rights. But if I had given up after my spinal cord
injury, or if Tara, my sister with Downs Syndrome, had bought
into the low expectations that society had so often given her,
if neither of us had tried to live up to what each of our full
potential was, we would have been protected if we hadn't tried,
if we hadn't done our best.
Now, there are lawyers and policy experts here with me
today and they will go into greater detail, but I am here
because I think the last message we would want to send to
Americans with disabilities, in particular youth with
disabilities and returning soldiers, is that the less you do to
deal with your condition, the less you do to manage your
disabilities, the less you try, the more likely you are to be
protected under the civil rights laws. That is horrible policy,
and it doesn't make sense.
We shouldn't be punishing people for successfully managing
their disabilities, trying to work and trying to pay taxes. ADA
Restoration is really about being fair, about fairness.
As a country, we should be focusing on disabled people's
abilities, and encouraging people to exceed their full
potential. But instead, the courts have been punishing people
for trying too hard, for trying to be productive, for wanting
to pay taxes. This, again, doesn't make sense.
Please, please help us clear up the mess the courts have
made. Help us restore congressional intent. Help us pass the
ADA Restoration Act so that the ADA can open wide the doors of
opportunity to all of us in America.
Thank you.
[The prepared statement of Ms. Sensenbrenner follows:]
Prepared Statement of Cheryl Sensenbrenner
Chairman Nadler, Ranking Member Franks, and Members of the House
Judiciary Subcommittee:
Thank you for the invitation to discuss the topic of ADA
Restoration. I am honored to have this opportunity to testify on an
issue that affects the ability of literally millions of people with
disabilities to enter and maintain their participation in the American
workforce. My name is Cheryl Sensenbrenner, and I am pleased to offer
my testimony today as the Board Chair of the American Association of
People with Disabilities (AAPD), a national non-profit, non-partisan
membership organization promoting the political and economic power of
the more than 50 million children and adults with disabilities
throughout the U.S. With more than 100,000 members, AAPD is the largest
national cross-disability membership organization in the country. In
addition to my affiliation with AAPD, I offer my testimony today as a
granddaughter, a sister, and a mother of people with disabilities as
well as my experience of being a woman with a disability myself.
I offer my testimony today at a most crucial moment for people with
disabilities--a time at which U.S. Courts are at complete odds with
clear Congressional intent regarding civil rights protections of people
with disabilities, and at a time during which you, Congressmen and
Congresswomen, can set a landmark civil rights law back on its intended
course toward equality for all people.
In 1990, with tremendous bipartisan support, Congress passed the
ADA, and President George H.W. Bush signed it into law. During its
passage, Congress acknowledged that people with disabilities were
extremely disadvantaged socially, economically, vocationally, and
educationally--this ``political powerlessness'' on account of pervasive
discrimination, segregation, and exclusion ``resulting from stereotypic
assumptions not truly indicative of the individual ability of such
individuals to participate in, and contribute to, society . . .'' \1\
---------------------------------------------------------------------------
\1\ Americans with Disabilities Act, 42 U.S.C.A. Sec. 12101 (1990).
---------------------------------------------------------------------------
Congress's intention was clear. This great law, the ADA, was meant
to stand as the ``emancipation proclamation for people with
disabilities'' \2\ against the unfair discrimination that had permeated
all aspects of life for people with disabilities for far too long. The
law's broad directive to employers, public transportation systems,
public accommodations, as well as other program and service providers
(including the private sector) was to stop the unfair treatment of
people on the basis of their current, past, or perceived disabilities.
Once implemented, the ADA was intended to give all people with
disabilities the opportunity for independence and full participation
and inclusion in society.
---------------------------------------------------------------------------
\2\ See Remarks of President George Bush at the Signing of the
Americans with Disabilities Act, available at http://www.eeoc.gov/ada/
bushspeech.html; See also Remarks from Senators Orrin G. Hatch and
Edward M. Kennedy, at National Council on Disability, The Americans
with Disabilities Act Policy Brief Series: Righting the ADA, No. 1:
Introductory Paper (October 16, 2002), available at http://www.ncd.gov/
newsroom/publications/2002/rightingtheada.htm.
---------------------------------------------------------------------------
And to be sure, in the last 17 years since its passage, we have
witnessed an undeniable transformation in our society. Access to public
transportation has improved considerably on account of the ADA
requirement that all new buses, trains, and accompanying stations be
accessible for people with mobility, sensory and other disabilities--
there is no question we live in a more accessible society than in 1990
on account of the ADA. Closed-captioning, curb-cuts, power-assisted
doors, large print signage--all of these are hallmarks of society post-
ADA--of a society more welcoming of and accessible to people with
disabilities than in a time past.
I remember that time past. I can remember cold, snide remarks, and
demeaning looks and stares that my sister, Tara, who has Down's
syndrome, endured nearly every day growing up. And for myself, I
vividly recall numerous occasions in which I was subjected to the
ignorant comments and low expectations of others after acquiring my
spinal cord injury at age 22. I remember once waiting for my father,
then Attorney General of Wisconsin, in the lobby of a bank while he
conducted some business, and I remember a bank executive staring at me
and stating coldly, ``People like that belong on park benches out front
and not in our lobby.''
I remember it so clearly--``People like that,'' he said. ``People
like that'' are me, my sister, my son, many of my dearest friends, and
countless Americans. ``People like that'' are your loved ones, your
friends, or even you--now, or in the future.
You see, the ADA starts with the recognition that disability is a
natural part of the human experience. Any person at any time can
encounter or acquire a disability. Some people are born with their
disabilities, like Tara. Some acquire their disabilities through
accident or injury, like I did. Others encounter invisible disabilities
through a bout with an illness. Some manifest their disabilities during
their school years. Others acquire a disability as they age. And still
others acquire disability while putting their lives on the line for our
country, as we are reminded daily with each wave of returning soldiers
from Iraq and Afghanistan.
Given that all kinds of disability can enter any person's life at
any time, often without warning, the more accessible the society we
create, and the more intact our system of legal protections, the
greater benefit we all reap as a result. The ADA, then, is a law for
all people. It was meant to ensure that whatever the circumstances may
be that surround a person's encounter with disability, Americans are
never to be treated unfairly, excluded unnecessarily, or relegated to
second-class citizenship on the basis of disability without recourse.
Despite all the progress since the passage of the ADA, sadly, we
still have a long way to go before the ADA's inclusive vision becomes a
reality in America. For instance, I am amazed at how routinely kind and
well-educated individuals with whom I interact assume that I acquired
my disability after marrying my husband, Congressman F. James
Sensenbrenner, by remarking how good it was of him to ``stick by me''
through that. The fact of the matter is Jim and I fell in love and got
married during a time in which I was already disabled. You see, he
``got me'' in a wheelchair, or at best on Canadian crutches. As for my
sister, Tara, through the support of family, she graduated from high
school, pursued college coursework, and has gone on to support herself
through various jobs, which she has used to finance and insure her car
and participate in numerous hobbies. Just this week, she gave me lots
of helpful tips about my testimony. And yet despite all her immediately
apparent independence, Tara too still routinely runs up against
paternalistic words and actions.
Although there are many obstacles yet to be removed for people with
disabilities, I believe the largest and most pervasive one to remain is
that of attitude. The fears, myths, and stereotypes about people with
disabilities from my youth are the same fears, myths, and stereotypes
that I still hear of and encounter today, and they are the same fears,
myths, and stereotypes that all too routinely result in people being
shut out of employment opportunities.
While it is obvious that the ADA has acted as a great equalizer in
a variety of contexts, its full potential has yet to be realized. The
ADA, as Congress intended in its passage, creates an incentive, arising
from a legal obligation, for all citizens to forge a better
understanding and more proper perspective for accepting and integrating
people with disabilities into all aspects of society, including the
workforce.\3\ In order for that to occur and for the greatest barrier
to all people with disabilities--fears, myths, and stereotypes--to be
removed, the law must be applied and enforced as it was intended.
---------------------------------------------------------------------------
\3\ Laura L. Rovner, Disability, Equality, and Identity, 55 Ala. L.
Rev. 1043 (2004).
---------------------------------------------------------------------------
However, this is not happening. Several of my esteemed colleagues
on the panel today will discuss the numerous damaging court decisions
that have significantly narrowed the intended protections of this law.
As a result of these court rulings, the ADA has lost some of its
potency as a teacher, and the devastating effects are clear.
The employment rate of people with disabilities has not improved
with the passage of the ADA.\4\ Two-thirds of individuals with
disabilities who do not have a job say they want to have one but cannot
find employment.\5\ Many of those who do find employment often
experience discrimination along the way--in hiring, requesting
accommodations, or in unlawful terminations--on account of the same
pervasive fears, myths, and stereotypes which characterized the past.
What's worse, when these individuals seek their day in court, more than
90% of the time, the courts will side with the employers rather than
the individuals who faced discrimination.\6\ By undercutting civil
rights protections for people with disabilities, the Courts have
imposed a dangerous and unacceptable U-turn in the progress people with
disabilities have made to date. They have made it legal for employers
to say ``You are not welcome here'' to disabled individuals who want to
work, and who want to pay taxes--some of whom have a history of
dependency on entitlement programs but are attempting to leave them to
become financially independent; some of whom have recently completed
higher education following 13 years of inclusive education, only to
find that now, after all their hard work, the inclusivity and legal
protections are gone.
---------------------------------------------------------------------------
\4\ Despite many factors contributing to a positive outlook for
employment of people with disabilities, including the passage of civil
rights laws like the ADA, the employment rate of people with
disabilities has not improved significantly, as EEOC Chair Naomi C.
Earp pointed out in her testimony during the September 13, 2006 ADA
Oversight Hearing held by the House Judiciary Committee, Subcommittee
on the Constitution. See also Harris, L. & Associates (1998) N.O.D./
Harris Survey Program on Participation and Attitudes: Survey of
Americans with Disabilities. New York. See also L. Harris & Associates,
N.O.D./Harris Survey Program on Participation and Attitudes: Survey of
Americans with Disabilities (2004).
\5\ Career World, Nov/Dec 2000.
\6\ See Amy L. Allbright, 2004 Employment Decisions Under the ADA
Title I--Survey Update, 29 Mental & Physical Disability L. Rep. 513,
513 (July/August 2005) (stating that in 2004, ``[o]f the 200
[employment discrimination] decisions that resolved the claim (and have
not yet been changed on appeal), 97 percent resulted in employer wins
and 3 percent in employee wins'').
---------------------------------------------------------------------------
The ADA was meant to be just like other civil rights laws that
address employment discrimination--the sole focus of a legal case was
to be on the alleged discrimination of the employer--whether the worker
was treated fairly or treated unfairly because of unlawful
discrimination. However, as I have come to understand it, unlike other
civil rights laws, the Courts have created what I like to call a
``double whammy'' for people with disabilities who seek to bring a case
under the ADA. First they must prove their disabilities through a
series of invasive and often highly irrelevant inquiries into the most
intimate aspects of their lives. Once they have satisfied this
increasingly difficult standard, only then are they given the
opportunity to present the facts of discrimination. While a requirement
of ``proving'' one's disability may be reasonable in the context of an
entitlement program, it is an unnecessary and harmful step in an
employment discrimination context because it is preventing people from
ever reaching the issue of whether they were treated unfairly because
of their real or perceived disability.
As things currently stand, the effects of the court cases are as
absurd as they are devastating. Every day, people with conditions like
epilepsy, diabetes, HIV, cancer, hearing loss, depression, and most
recently, even people with intellectual disabilities (the new term for
what we used to call ``mental retardation''), are getting caught in the
first ``hoop'' of the court's inquiry. A multitude of people who manage
their disabilities effectively through medication, prosthetics, hearing
aids, or other ``mitigating measures'' are viewed as ``too
functional''--or not ``disabled enough''--to be protected under the
ADA.\7\ Once stuck in the first hoop, these individuals never have an
opportunity to present the facts of blatant employment discrimination
that led them to pursue a legal remedy. This means that employers are
allowed to make employment decisions on the basis of disability--fire
or not hire someone because of their misperceptions or prejudices about
disability--and yet the courts find those same individuals ``not
disabled enough'' to be protected under the law! What an absurdity!
---------------------------------------------------------------------------
\7\ See Sutton v. United Airlines, Inc., 527 U.S. 471 (1999)
(holding that ``mitigating measures''--medication, prosthetics, hearing
aids, other auxiliary devices, diet and exercise or any other
treatment--must be considered in determining whether an individual has
a disability and is protected by the ADA); see also Murphy v. United
Parcel Service, Inc., 527 U.S. 516 (1999); Albertson's, Inc. v.
Kirkingburg, 527 U.S. 555 (1999)). In reaching this conclusion, the
Court disregarded explicit statements from Congress that it did not
intend mitigating measures to be considered in determining whether a
person has a disability: ``whether a person has a disability should be
assessed without regard to the availability of mitigating measures,
such as reasonable accommodations or auxiliary aids.'' S. Rep. No. 116,
101st Cong., 2d Sess. at 22 (1989); see also, Chai R. Feldblum,
Definition of Disability Under Federal Anti-Discrimination Law: What
Happened? Why? And What Can We Do About It?, 21 Berkeley J. Emp. & Lab.
L. 91, 106 (2000).
---------------------------------------------------------------------------
As Chairperson of the Board of Directors of AAPD, I often think of
our organization's summer Congressional and Information Technology
interns with disabilities. I think of how gifted, capable, and
sometimes eccentric they are--all so unique and all with such varied
disabilities--and I wonder if any of them will be shut out of the law
with which Congress intended to protect their civil rights should any
of them ever need it.
Even closer to home, I have to wonder what would happen if the many
disabled people in my family were ever to encounter and try to
challenge employment discrimination under the judge-invented standard
that is now the law of the land. Let us assume each of my family
members with a disability applied for and was denied a job because of
his or her condition. It is often not that blatant, but for purposes of
this exercise, let us assume each family member was told the reason
they were not considered for the position was because of his or her
disability.
My grandmother, Clara Warren, who had type 1 diabetes, would not
likely fare well. If voluminous court decisions are any indication,
more than likely, she'd get stuck in the first hoop of the ``double
whammy.'' Because she responsibly managed her diabetes with medication
and diet, the court would tell her that she was not disabled for
purposes of the ADA and toss her case out of court. My son, Frank, who,
like me, has ADHD, would also likely be told that he was too high-
functioning to be protected under the law--never mind that in this
hypothetical scenario, they expressly told him that they were not
hiring him because of his ADHD. The same would likely be true of such a
case pertaining to my spinal cord injury--I would be viewed as getting
by ``too well'' to be considered disabled for purposes of the ADA's
protection. After hearing from the Littleton's today, I have less
confidence that the outcome would be any different for my sister, Tara,
with her intellectual disabilities, who would also likely be viewed as
too ``high-functioning'' to be protected. In each of our instances, the
facts of the employer's conduct would never even be heard in court.
As if that was not preposterous enough, if we revisit each of my
family members in turn and alter only one fact, all of our cases would
likely be taken up in court and the facts of discrimination would be
heard. If my grandmother had not taken her insulin; if Frank and I had
not found ways to manage our ADHD; if I had not committed to physical
therapy and rehabilitation following my accident; if Tara had not
pursued and relied upon family supports and training. Basically, if all
of us played into the historically low expectations for people with
disabilities--not done all that we could do to recover from or manage
our conditions--we would all stand a much better chance of having our
day in court.
I hope this family hypothetical scenario helps illuminate what the
lawyers and policy experts can explain in greater depth. It seems to me
that the last message we would want to send to Americans with
disabilities--particularly youth with disabilities and returning war
veterans--is the less you manage your disability, the less you try, the
more likely you are to be protected under civil rights laws.
Were the ADA to be applied as are other civil rights laws are,
without the first hoop of proving one's disability, the remedial goals
of the ADA could be fulfilled. There would still be cases tossed out on
the merits, just like lawsuits brought under other civil rights laws,
but those cases deserving of judicial consideration would see their day
in court, and the ADA would again be allowed to function as it was
intended.
My passion in seeing this legislation passed into law is very
personal. While I may not be able to speak to all the fine nuances of
court decisions, I do know that there is something seriously wrong with
the scenario I described. And I know that we have deviated far, far
away from what was intended when Senator Bob Dole, who helped to found
AAPD and Congressman Tony Coelho, AAPD's current Vice Chair, both key
leaders in the passage of the original ADA, have been written out of
the very law they helped author.
Please support and help pass the ADA Restoration Act so that the
ADA can open wide the doors of opportunity to all Americans.
Thank you for giving me the opportunity to provide my testimony
this morning.
Mr. Nadler. Thank you.
Our next witness, Mr. Orr, is recognized for 5 minutes.
TESTIMONY OF STEPHEN C. ORR
Mr. Orr. Good morning. My name is Stephen Orr. I am a
licensed pharmacist from Rapid City South Dakota.
Thank you for the opportunity to speak. I would like to
provide the highlights of my written testimony.
I have lived with type 1 diabetes since 1986 and take
excellent care of my health. Today I use an insulin pump. I
treat my condition as recommended by my doctor and I maintain
tight blood glucose control. This is incredibly important. It
prevents the serious short- and long-term consequences of
diabetes, including heart disease, amputation, blindness and
death.
In 1997, I was invited to apply for a pharmacy position as
manager of Wal-Mart's pharmacy in Chadron, Nebraska. It was a
great opportunity. I had lived in there previously and my
children and other family members lived there.
I never imagined my diabetes would lead to my being fired
from a job. However, that is exactly what happened.
When I was hired by Wal-Mart, my diabetes management
regimen included three insulin injections daily and lunch
breaks to prevent me from suffering from dangerous low blood
glucose levels or hypoglycemia. Prior to being hired, I
disclosed to my district manager that I had diabetes and that
it would be necessary for regularly scheduled, uninterrupted,
half an hour lunch breaks to check my blood glucose and eat.
Because I was going to be the only pharmacist, we agreed to
close the pharmacy while I took my lunch break
The pharmacy opened in January 1998. The first 6 weeks went
very well. Then the regular management, original management,
changed, and I was told that I could no longer close the
pharmacy for lunch.
I tried very hard to comply with their request, but was
unable to do so and still manage my diabetes. My blood glucose
readings plummeted. For example, one day I had a blood glucose
reading of 41. The normal reading for a healthy individual is
80 and 120. I was unable to eat until after 2 p.m. As soon as I
went to the snack bar, I would be called back to the pharmacy.
This was not a one-time occurrence, and for the next 3
months I experienced repeated dangerously lows on the job,
including a blood glucose level of 32.
I told my supervisor how unhealthy it was be for me to
continue skipping lunch, but he refused to allow me a routine
daily half-hour lunch break. Finally, to protect my safety, I
returned to taking lunch breaks. On May 12 I was fired. Let me
be clear: when I was fired, I was told flat out that it was
because I had diabetes.
After this discrimination I sued Wal-Mart for violating my
rights under the ADA. However, the U.S. District Court ruled
against me and the U.S. Court of Appeals rejected my appeal.
Because of Supreme Court decisions narrowing the Federal law, I
was not considered disabled under the Act for the sole reason
that my diabetes was under such good control.
Amazingly, the court ignored the fact that when I was
working at Wal-Mart, was prevented from properly managing my
condition by taking a lunch break.
My case was dismissed, and I never had a chance to try to
prove that with a small, reasonable accommodation, I could both
perform my job and protect my health. Ironically, Wal-Mart is
now allowing the pharmacy to close for lunch.
It is not right that the same employer that fired me
because of my diabetes could then claim that I do not meet the
definition of disability under the ADA.
I am before you today to say that even with proper diabetes
management, the disease affects me every day, every hour of the
day. I must constantly try my hardest to maintain a balance
between dangerous highs and dangerous low blood glucose levels.
The good news is that I have largely been successful in keeping
my health safe. Yet, it was because I work so hard to manage my
diabetes to make myself a productive employee and citizen that
the court found that I didn't merit protection from
discrimination.
My case is not unique. Mr. Charles Littleton and his
mother, Darbara Littleton, wanted to speak to you today about
their experience with the ADA, but unfortunately, they were not
unable to meet with you.
The Littleton's have asked if I would submit their written
testimony for the record.
Mr. Orr. Again, thank you for the opportunity to speak.
[The prepared statement of Mr. Orr follows:]
Prepared Statement of Stephen C. Orr
Mr. Chairman and members of the Committee:
Good morning. My name is Stephen Orr and I am a licensed pharmacist
from Rapid City South Dakota. Thank you for the opportunity to testify
before the Committee today. It is a pleasure to be here speaking to
you, Chairman Nadler, Ranking Member Franks and the other distinguished
members of this Committee. I appreciate you holding this hearing on
restoring the Americans with Disabilities Act (ADA) and for providing
me with the opportunity to tell my story of discrimination.
I have lived with type 1 diabetes since 1986 and take excellent
care of my health. Having type 1 diabetes means that I must administer
insulin multiple times each day in order to survive. As a pharmacist, I
provide others with information about how to manage their diabetes
throughout the day--and I take that advice very seriously: treating my
condition as recommended by my doctors and maintaining tight blood
glucose control.
I'd like to explain a little about diabetes so that you know what I
mean by ``tight blood glucose control.'' Diabetes is a condition in
which the pancreas either does not create any insulin, which is type 1
diabetes, or the body doesn't create enough insulin and/or cells are
resistant to insulin, which is type 2 diabetes. Insulin is a hormone
that allows glucose or sugar to move from the blood stream into the
cells where it is used for energy. Thus, untreated diabetes results in
too much glucose in the blood stream. High blood glucose levels, known
as hyperglycemia, can be very dangerous in the short term and, in the
long-term, it is high blood glucose levels that lead to the many long-
term complications of diabetes including blindness, heart disease,
kidney disease, and amputation. Thus, I administer insulin to myself in
order to lower my blood glucose level. However, while a normal pancreas
is able to secrete just the right amount of insulin, it is much harder
for a person with diabetes to maintain blood glucose level in a safe
range. If I end up with too little insulin in my system I will have
hyperglycemia. But, if I end up with too much insulin in my system I
will experience a condition call hypoglycemia. Hypoglycemia occurs when
blood glucose falls below 70 mg/dL. Low blood glucose levels can be
caused by skipping or delaying a meal, more exercise or physical
activity than usual, too much insulin, or not following your schedule
for taking your insulin or diabetes pills. Mild or moderate
hypoglycemia is pretty common for children and adults who take insulin
but hypoglycemia can turn severe--leading to seizure or
unconsciousness--in very little time. Severe hypoglycemia is a life-
threatening condition.
In short, hypoglycemia and hyperglycemia are conditions that happen
when insulin and blood glucose are out of balance. In order to manage
my diabetes I need to carefully monitor my blood glucose level by self-
administering a blood test numerous times a day and adjusting the
amount of insulin I administer to take into account the food I eat, the
exercise I get, and other factors such as illness. The reason I strive
for tight blood glucose control is that research has established that
is the way to avoid the devastating long-term complications of
diabetes.
In 1997, a Wal-Mart district manager invited me to apply for a
position as manager of the company's pharmacy in Chadron, Nebraska. It
sounded like a great opportunity. At the time, I was working as a
pharmacist in Rapid City, S.D., but had lived in Chadron previously and
looked forward to moving the 110 miles back to the town where my grown
children resided and countless other family and friends still lived.
The job had a great salary and, as I was 47 years old, I expected to
retire from there.
Having lived with diabetes for so long, I never imagined that my
diabetes could lead to my getting fired. However, that is exactly what
happened. In essence I lost my job as a result of trying to protect my
health and safety even though none of that interfered with me being a
good pharmacist.
At the time that I was hired by Wal-Mart, my diabetes management
regimen included, among other things, three insulin injections daily,
as well as half-hour lunch breaks to prevent me from suffering from
hypoglycemia. Prior to being hired, I disclosed to my district manager
that I had diabetes and that I would need to have a regularly
scheduled, uninterrupted, lunch break to check my blood glucose level
and eat. I only accepted the position after my new employer agreed to
the terms by which I could take the care necessary to manage my
condition. Based upon this agreement, I accepted the position and moved
to Chadron.
On January 3, 1998, I began training in the Rapid City Wal-Mart
Pharmacy. By the end of the month, we held the Grand Opening of the
Chadron Wal-Mart Supercenter, and the in-store pharmacy formally
opened. As the only pharmacist at this location, taking a lunch meant
closing the pharmacy during that time period--one of the initially
agreed upon terms for my employment. However, a mere six weeks after I
started work, the regional management changed. I was told by a new
district manager that I could not close for lunch breaks. I was
instructed that I should eat behind the pharmacy if and when things
slowed down. I tried to comply with the request, but was unable to do
so and safely manage my diabetes. My blood glucose readings plummeted.
For example, on March 12, 1998, I had a blood glucose reading of 41 mg/
dL. On this particular day, I was unable to eat until after 2pm. When I
walked over to the snack bar to pick up lunch I was paged back to the
pharmacy. Unfortunately, this was not a one time occurrence and for the
next three months I experienced repeated dangerously low hypoglycemia
on the job, including a blood glucose level of 32 mg/dL on May 6, 1998.
I spoke to my supervisor in order to explain how unhealthy it would
be for me to continue the practice of skipping lunch, but he refused to
consider accommodating my medical condition. In order to protect my
safety, I was forced to return to my practice of taking half-hour
lunches and on May 12, 1998, I was discharged. Let me be clear: when I
was fired, I was told flat out that it was because I had diabetes.
After the discrimination I experienced, I brought a case against
Wal-Mart Stores, Inc. for violating my rights under the Americans with
Disabilities Act. However, the U.S. District Court granted summary
judgment against me and the United States Court of Appeals rejected my
appeal. The appeals court said that because of Supreme Court decisions
narrowing the federal law, I was not considered ``disabled'' under the
Act--for the sole reason that my diabetes is under such good control.
The appeals court agreed with my testimony that when my blood glucose
level is not within a safe range I suffer from a variety of immediate
complications including vision impairment, low energy, lack of
concentration and mental awareness, lack of physical strength and
coordination, slurred speech, difficulties typing and reading, and
slowed performance. Yet, the court said that I could not rely on
evidence of how I was when my blood glucose level was not within a safe
range. Rather, the court said:
[N]either the district court nor we can consider what would or
could occur if Orr failed to treat his diabetes or how his
diabetes might develop in the future. Rather, [the Supreme
Court decision in] Sutton [v. United Airlines] requires that we
examine Orr's present condition with reference to the
mitigating measure taken, i.e., insulin injections and diet,
and the actual consequences which followed.\1\
---------------------------------------------------------------------------
\1\ Orr v. Wal-Mart Stores, 297 F.3d 720, 724 (8th Cir. 2002)
Amazingly, the court ignored the fact that when I was working at
Wal-Mart, I was prevented from properly managing my condition by my
employer. That is, Wal-Mart took away the means I had to manage my
disease, I became ill, and then my case was thrown out of court because
the judges insisted upon viewing me as I would be if I had been allowed
to properly manage my disease.
My case was dismissed and I never had a chance to try to prove
that, with a very small reasonable accommodation, I would have been
able to both fully perform my job and protect my health and safety.
Ironically, as a corporate policy, Wal-Mart is now allowing the
pharmacy in Chadron to be closed for a 30 minute period, although there
is still only one pharmacist on duty.
I find it tremendously unfair that the same employer that fired me
because of my diabetes could then successfully claim that I did not
meet the definition of disability under the ADA. I ask that you amend
the law so that the focus of cases like mine is on whether the
individual can do the job, rather than lawsuits about the private
details of an individual's medical condition. I stand before you to say
that, even with proper diabetes management, this disease affects me
every day, every hour of my life. I must constantly try my hardest to
maintain a balance between dangerously high and dangerously low blood
glucose levels. Diabetes affects everything I do from eating to
physical activity. The good news is that I have largely been successful
in keeping myself safe and healthy. Yet, it was because I work so hard
to manage my diabetes to make myself a productive employee and citizen
that the court found that I didn't merit protection from
discrimination.
I wish my case was unique but it is not. Mr. Charles Littleton and
his mother, Darbara Littleton, had hoped to speak to you today about
their experience with the ADA, but unfortunately, they were not able to
make it. Their story is yet another example of a person who wanted to
do the job and who could do the job with a reasonable accommodation,
but who was refused an accommodation and then was not protected by the
ADA. Charles and Darbara have asked me if I would submit their written
testimony on their behalf, and so I ask that their testimony be made
part of the record of this hearing.
Too many people have had their ADA claims dismissed because they
were found by the courts not to be sufficiently disabled under the
courts' misguided interpretation of the definition of disability under
the ADA. Congress must restore the ADA to what it was intended to be--a
comprehensive mandate to protect all Americans from discrimination
based on disability.
Again, thank you for the opportunity to speak before you today.
Mr. Nadler. I thank the witness. Those statements will be
accepted without objection.
[The prepared statement of Charles and Darbara Littleton
follows:]
Prepared Statements of Charles and Darbara Littleton
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Nadler. Mr. Collins is recognized for 5 minutes.
TESTIMONY OF MICHAEL C. COLLINS, EXECUTIVE DIRECTOR, NATIONAL
COUNCIL ON DISABILITY
Mr. Collins. Chairman Nadler, Ranking Member Franks and
Members of the House Judiciary Subcommittee, the National
Council on Disability would like to thank the Committee for
this opportunity to provide testimony on the Americans with
Disabilities Act and the ADA Restoration Act.
I have been asked to share some information NCD has learned
about the experiences of people with disabilities as a result
of Supreme Court interpretations on the definition of
disability under the ADA and to explain why it is the unanimous
position of our 15-member council, most who have disabilities,
or whose lives are impacted by disability on a daily basis,
that this Restoration Act is timely and necessary.
NCD first proposed the concept of the ADA in 1986 and
proposed language for the new law soon thereafter. NCD monitors
the impact, implementation and effectiveness of the ADA and
other disability-related laws and programs on an ongoing basis.
One of NCD's monitoring activities has been to analyze the
Supreme Court cases interpreting the ADA.
From 2002 to 2004, NCD produced a series of 19 policy
briefs analyzing these Supreme Court decisions and their
ramifications on subsequent Federal court cases. This work
culminated in a comprehensive report called ``Righting the
ADA,'' which I have with me, in which NCD proposed language for
an ADA Restoration Act.
Congress defined disability in the ADA to encompass both
actual and perceived limitations and limitations imposed by
society. It was intended to provide comprehensive protections
for anyone who had been excluded or disadvantaged by a covered
entity on the basis of a physical or mental impairment, whether
real or perceived.
The Supreme Court has issued several decisions relating to
the definition of disability under the ADA, so altering it that
the majority of people with disabilities would have no Federal
legal recourse in the event of discrimination, particularly in
instances of employment discrimination, as Mr. Orr has
expressed.
In June 1999, the Supreme Court decided Sutton v. United
Airlines, a case involving pilots needing corrective lenses,
and Murphy v. United Parcel Service, 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 persists after taking into account
mitigating measures.
On the same day in 1999, the Court decided Albertson's v.
Kirkingburg, a case involving a man who was blind in one eye.
The Court held in Krukenberg 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.
The results of these decisions is that people who Congress
clearly intended to be covered by the ADA, such as people with
epilepsy, diabetes, depression and hearing loss, are now being
denied employment and refused reasonable accommodations because
of the disability 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
certain plaintiffs in order to determine whether and to what
extent mitigating measures actually alleviate the effects of
the disability.
The Supreme Court has also changed the meaning of
substantial limitation of a major life activity in ways that
screen out even more people with disabilities. In Toyota v.
Williams, the Court changed ``substantially limits'' to mean
``prevents or severely restricts'' and decided that to be
substantially limited in a major life activity a person must be
substantially limited in an activity ``of central importance to
most people's daily lives.''
This has led to extensive questioning by courts about
individual's ability to brush his or her teeth, bathe, dress,
stand, sit, lift, eat, sleep and interact with others. It has
led to contradictory rulings by Federal courts about whether
activities such as communicating, driving, gardening, crawling,
jumping, learning, shopping in the mall, performing housework
and even working and living are major life activities.
In hundreds of cases of alleged disability-based
discrimination, people with disabilities have had to spend
their resources litigating such issues often with the question
of whether disability discrimination has occurred going
unaddressed.
I receive several inquiries each month from highly
qualified and highly motivated jobseekers with disabilities. In
many cases, they express frustration about the doors to
employment that are shut or slammed in their faces. An email I
received just yesterday was fairly typical. A prospective
employer had actually Googled the applicant and discovered an
article profiling the candidate in a disability publication.
The employer placed a call to advise that the office was on the
second floor of a building with no elevator. They could not
accommodate an employee in a wheelchair, so the applicants name
was being removed from consideration for the job.
This is extremely frustrating as the applicant did not use
a scooter, a wheelchair or other mobility device, but a false
perception by the employer that this person could not access
the job site actually could not be challenged under the current
court interpretations of the ADA.
NCD is also concerned about the impact of the developments
in the ADA case law on veterans with disabilities. Many of our
veterans require the use of those mitigating measures the court
speaks of, including medication, orthotics and assistive
technology. The phenomenon is due in part to advances in
assistive technology that make it possible for people with
disabilities to perform a wide range of jobs and these members
have decided to either reenter the military or enter the
civilian workforce shortly after they return to the States.
We must restore the ADA to ensure that our society welcomes
home our veterans with disabilities and all Americans deserve
that consideration. H.R. 3195 simply confirms the congressional
intent in the ADA to provide that protection, whether real or
perceived.
In conclusion, the ADA has been transformed into special
protections for a select few. NCD urges Congress to act quickly
to reinstate the scope of protection Congress initially
provided in the ADA.
Thank you.
[The prepared statement of Mr. Collins follows:]
Prepared Statement of Michael C. Collins
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Nadler. Thank you.
Mr. Lorber is recognized is for 5 minutes.
TESTIMONY OF LAWRENCE Z. LORBER,
U.S. CHAMBER OF COMMERCE
Mr. Lorber. Thank you, Mr. Chairman, Ranking Member Franks.
In addition to the introduction that the Chairman kindly
gave about me, I do want to note that in 1975 I was privileged
to be appointed and head the Office of Federal Contract
Compliance Programs at a time when the 1974 amendments to the
Rehabilitation Act were being considered. And we issued the
first regulations under section 503 dealing with what was then
called handicaps for employment.
That was at a time when we did not have the benefit of the
experience that the Congress had in 1989 and 1990, and we had
to create, in many respects, concepts that were applicable then
to employment and, I think as it turned out, with the
subsequent issuance of the 504 regulations, applicable today.
With all due respect, H.R. 3195 is not a Restoration Act.
It is an attempt to pass, in 2007, a law that the Congress
examined and rejected in 1988. Instead, the Congress in 1989
and 1990 addressed the issue of discrimination against
handicapped individuals, disabled individuals, in many aspects
looked to the experience under section 504, looked to the long
experience under the other laws, State and Federal, affecting
disabled, and opted to choose a statutory scheme which
recognized that those who are disabled, truly disabled, whose
disability affected a major life activity, would then go on to
require employers for title 1, for the employment section, to
work interactively with those individuals and hopefully come up
with accommodations to enable those individuals to meet their
full and undoubted capacities and contribute to society.
The bill before you today does none of that. Rather, what
it does is change in a wholesale method the definition of who
would be covered under the law. It substitutes for disability
the notion of impairment. It takes away the notion and the
concept that there are indeed disabled Americans who are
deserving of protections and should be able to work. And
instead substitutes for that every American, every employee,
every applicant for employment who might have a condition, be
it permanent or transient, be it disabling or annoying, be it
cured or subject to cure, and require employers to afford to
every one of those individuals the specific types of relief and
obligations unique to the ADA which they are now required to
apply to those with disabilities.
They would have to engage in an interactive process. They
would have to determine what specific accommodations an
individual such as that could need to perform the job. One
could only imagine the type of accommodations which would be
required to somebody who has a cold. One could imagine the type
of accommodations to somebody who, for example, has lost their
eyeglasses, misplaced them, and would come in 45 minutes late
because they couldn't find their eyeglasses. These are not
hypothetical issues. These are real issues which would be
caused by this act if it were passed.
In addition, I would point out that the ADA is unique in
many respects. It does require individualized assessments of
the ability of an individual to do their job, unlike every
other employment discrimination law, which takes the status of
the individual and determines if that status led to, in the
legal term causation, to deal with that individual in a way
that was improper. Here, under the ADA, there are affirmative
obligations for employers to engage in the process I described
so that the employees or the applicants may be given a fair and
appropriate opportunity to be considered for employment and to
achieve employment.
Instead, what we are talking about is turning this act, the
Americans with Disabilities Act, into the Universal Employment
Act of 2007, affording every individual the opportunity to
bring a lawsuit, to challenge an employment decision and simply
connect it in some manner, whether direct or indirect, to their
condition.
I would like to briefly point out one other aspect of this
proposed legislation which is indeed remarkable. In every
employment discrimination law, an individual has to be
qualified to be considered for the job. Under the ADA you are
either qualified with or without an accomodation as appropriate
under the statutory scheme. The legislation before you changes
that. It takes away the need for the individual to show they
are qualified and rather puts on the employer an affirmative
defense after the litigation is commenced, after discovery is
undertaken, to try to show that the individual is or is not
qualified, approving the negative. In legal parlance, it would
be an almost impossible burden. And what that would do is cause
all of these cases, all of these issues, to go to litigation.
I would like to briefly point out that we have been told
that Sutton and its progeny have ended the rights of the
disabled. Well, in 1998 the EOC received some 17,088 claims.
They found cause or determinations of 6.2 percent of those
claims. In 2004, after Sutton, after Williams, they received
approximately 15,500 claims and there were positive cause
determinations of 5.5 percent of those. Hardly any indication
that Sutton or other cases resulted in the diminution or the
ending of the rights of the disabled.
The Chamber of Commerce recognizes and suggests that there
is no difference in the interest of the employment community
and the disabled individuals that the ADA is meant to protect.
The Chamber of Commerce also recognizes that any statutory
scheme deserves reexamination after 17 years of experience.
However, it rejects the notion that the long experience under
the Rehabilitation Act of 1973 and the ADA be tossed aside and
be replaced by a litigation regime not focused on the
universally lauded goal of full inclusion of qualified
individuals with disabilities into the mainstream of American
life, but rather to place 15,000 or 17,000 more cases into the
courts so that we can, the lawyers among us who perhaps do well
under this act, but those who the act were meant to protect
simply wait at the end of a very long line.
Thank you very much.
[The prepared statement of Mr. Lorber follows:]
Prepared Statement of Lawrence Z. Lorber
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Nadler. Thank you.
And our final witness who will be recognized for 5 minutes
is Professor Feldblum.
TESTIMONY OF CHAI R. FELDBLUM, PROFESSOR,
GEORGETOWN UNIVERSITY LAW CENTER
Ms. Feldblum. Thank you, Mr. Chairman.
Mr. Lorber says here what he also says in his written
testimony, that in 1989 Congress looked at a bill that would
have language like the ADA Restoration Act and deliberately
decided not to go that route and instead to go the route of the
language in the bill of the ADA. And therefore, it would be
impossible to say that if you went back to that language, that
you would be restoring your intent.
Sounds like a pretty strong argument. So I went to see what
his citation was for that. His citation was my law review
article that I wrote. So if you actually read the rest of the
law review article, you see that in 1986, the National Council
on Disability, as you have just heard from Mr. Collins,
recommended that there be an Americans with Disabilities Act,
and they recommended a set of language that said ``physical or
mental impairment,'' and they had definitions of physical and
mental impairment.
And we all said why are you using different language? We
totally get what you are trying to achieve, that anyone who has
a physical or mental impairment, and was discriminated against
on that basis, should, as you heard from Cheryl Sensenbrenner,
be able to bring a claim. If that is what you are trying to
achieve, we said, you don't need to use those words. We have
words that have been in place for 15 years. We have lots and
lots of cases. And under those cases, everyone with a range of
impairments has been covered either under the first prong of
the definition, an impairment that substantially limits a major
life activity, or they were covered under the third prong, they
were regarded as, they were perceived.
So what you are trying to achieve with this language, we
can achieve with language that has been used for 15 years. That
is why the language in the bill from 1988 was not accepted, and
instead we went to the language of section 504.
Well, guess what happened? As you heard, the Supreme Court
took the new language and started reading in all types of
limitations that had never been put in there by courts in
section 504. So now in 2007, we are back here again with the
recommendation from the National Council on Disability saying
you know what, maybe our first suggestion was the better one.
And that is what H.R. 3195 does.
So really, Members of this Subcommittee, the question
before you is a very simple one. As a matter of policy, is the
ADA doing the job you wanted it to do? Is it covering the
people from the types of discrimination you wanted to stop? It
is a very simple question. And the answer is very simple as
well. The answer is no.
Let me tell you, I worked with Larry Lorber back then, and
I have a lot of respect for him. But there was one sentence in
his written testimony that really caught me. It was this: ``For
17 years, the ADA has fulfilled its promise to the individuals
it was meant to protect, a protected class of individuals with
disabilities.''
With all due respect, this statement is not true. If it
were true, we would not be sitting here today. If it were true,
Mr. Orr would still have his job in the pharmacy with a
regularly scheduled half-hour break to take his insulin.
So how did the promise get so messed up? You have heard
already and so I will only add two things in terms of the legal
piece, and then I look forward to the questions. First, in the
case of Sutton v. United Airlines, which you heard about, the
Supreme Court had to decide whether the agency, the EEOC, was
correct in saying that you don't take into account mitigating
measures when you decide if someone's impairment
``substantially'' limits a major life ``activity.'' That
language we gad decided to use.
The agency was not going out on a limb when it said don't
take into account mitigating measures. As the Chairman noted,
this Committee as well as three others said the same thing in
its report--don't take into account mitigating measures.
What did the Supreme Court say? ``We conclude that the
approach adopted by the agency guidelines is an impermissible
interpretation of the ADA.'' Wow. An impermissible
interpretation of the ADA. How do they deal with three
Committee reports that say this is the interpretation we want?
What the Court said was, ``Because we decide that by its terms
the ADA cannot be read in this manner, we have no reason to
consider the ADA's legislative history.'' Because the words are
so clear to us about what Congress intended, we don't have to
go to the legislative history.
The Supreme Court read the words in a certain way. If you
don't agree, you need to change those words. And that is the
same thing that they did in the Toyota case in terms of reading
``substantially limited'' to create the demanding standard. If
you don't think it should create the demanding standard, you
have to change the words.
That is all that the ADA Restoration Act is doing. It is
time for Congress to write this law more clearly and more
plainly so that the promise of the ADA can indeed finally be
fulfilled.
Thank you.
[The prepared statement of Ms. Feldblum follows:]
Prepared Statement of Chai R. Feldblum
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Nadler. Before recognizing myself for 5 minutes to
begin the questioning, I will simply note the very welcome
presence of Congressman Sensenbrenner, the former Chairman of
this Committee, who is a Member of the Committee but not of the
Subcommittee. And we welcome him to this hearing.
Let me begin by recognizing myself for 5 minutes and ask
Professor Feldblum first, Mr. Lorber expressed concern that the
bill would mean that a plaintiff would no longer have to show
that he or she is qualified for a job, that the burden would
shift. Do you think this is a valid concern? Does the bill do
that?
Ms. Feldblum. I do not believe this is a valid concern at
all. The bill does not change the fact that a person has to be
a qualified person with a disability. It does not change the
fact that a qualified person with a disability means someone
who, with or without reasonable accommodations, can do the
essential functions of the job. It does not change the
provision in the act that says that an employer may offer as a
valid qualification standard, as a defense, a valid
qualification standard, that screens out or attempts to screen
out a person with a disability.
I think it is simply a misreading of the bill.
Mr. Nadler. Thank you.
Mr. Lorber, you heard Mr. Orr's testimony and you know his
situation. Do you think that the Court was correct in saying
that in such a situation, because his diabetes is controllable,
he does not deserve the protections of this act and therefore
can be fired because he doesn't get the protections of the act?
And do you think that this bill, that we should correct that?
And if not, why not? And if yes, why?
Mr. Lorber. Thank you, Mr. Chairman.
There are a lot of cases, people win cases and people lose
cases. There is a case, Lawson v. CSX.
Mr. Nadler. Wait a minute. Let's stick to Mr. Orr----
Mr. Lorber. It will address----
Mr. Nadler [continuing]. Because I want to use that as a
type case.
Mr. Lorber. Well, Lawson was a diabetes case. It was in the
7th Circuit. The plaintiff won the case. And that is cited in
my testimony, and indeed we did provide to counsel a list of
cases where plaintiffs won.
The point is that Mr. Orr, as any case, has facts that may
or may not be unique to those cases. Whether or not diabetes
should be deemed a disability, Sutton implies that it certainly
can, the Lawson case said it should. So that I don't know that
it is very productive to look at cases won and cases lost.
Rather, I think we can look to what the impact----
Mr. Nadler. Wait a minute. Let me interrupt you right
there.
In looking at the results of any law, you have to look at
the cases won and the cases lost to figure out what the law is
doing. And I am frankly at a loss to interpret that last
statement----
Mr. Nadler [continuing]. What?
Mr. Lorber. We can look at cases where----
Mr. Nadler. Yes, but I am told that in 97 percent of the
cases under the Disability Act now the plaintiff loses.
Mr. Lorber. Well, that figure, by the way, is not that
dissimilar from cases under any of the civil rights laws.
The other point that we made in the testimony is that we
have 17 years experience under the ADA. The assumption that no
employer understands its obligations and, therefore, undertakes
the reasonable accomodation, undertakes their interactive
process, so that the cases that go to court are often the
difficult cases. The cases that go to court are, for whatever
reason. And that, I think, is the fairer number and indeed the
number I talked to you about insofar as----
Mr. Nadler. Okay. Thank you very much.
Professor Feldblum, can you comment on the Orr and the
Littleton cases as to, A, fundamental fairness and, B, the
intent of the act?
Ms. Feldblum. Yes. And I think picking up actually on the
7th Circuit case that Mr. Lorber wanted to talk about, about a
person with diabetes that did win, is going to be very useful
for the Committee.
Mr. Orr manages, as you heard, his blood glucose levels
very well. He has to take insulin several times a day, monitor
his blood sugar. But if he does that, his blood glucose level
is managed very well, so he remains well qualified. Okay?
The ability--that management requires an accomodation of
being able to have a regularly scheduled lunch hour. This was
exactly the type of thing that Congress expected when it passed
the ADA, that it would be ensuring.
Take the person with diabetes who won in the 7th Circuit on
the question of whether he had a disability. His blood glucose
was not managed as well, okay? So even with taking insulin, he
would have breakthrough moments of hypoglycemia, he would have
times when, as the Court said, despite the most diligent care,
there would be occasions when his ability to think coherently
was significantly impaired, as well as his ability to function.
He also was trying to get a reasonable accommodation. These
cases show exactly what Cheryl Sensenbrenner was trying to
show. The thousands of people with diabetes who manage it well
will never get a chance to ask for a reasonable accomodation.
The few who really with decent management are still having
breakthrough problems will be covered, but this person will
potentially end up losing because he wasn't qualified.
Mr. Nadler. My time is expired and I would like to
recognize Mr. Davis for 5 minutes.
We have six votes coming up, so I would like to try to
conclude the hearing at that point.
Mr. Davis. Thank you, Mr. Chairman.
Ms. Sensenbrenner, let me just begin by complimenting you.
I have always thought that I would not relish being on the
other side of an argument from this half of the Sensenbrenner
family. I can see I wouldn't relish being on the opposite side
of you either. So I compliment you for the clarity of your
testimony.
Let me just try to make a couple of quick observations, and
I will take my 5 minutes and just perhaps provide a quick
response from one of the witnesses.
This is a complicated statute, and the interplay is
complex, and I am not going to profess that I understand it as
well as I understand some of the other discrimination statutes,
but this is what seems to be the case to me, that the Supreme
Court has decided that the reach of this statute should
essentially be the group of people least likely to recover
under it. Okay, that is putting it in plain English as I can
understand it. The group of people who are so severely
restricted that they likely could never win a lawsuit anyway
and probably couldn't function in the workplace, it seems to
me, is the group of litigants that the court would allow to go
forward. That doesn't make a lot of sense to me and I want to
put that in some perspective.
One of the problems that some of us have with the Roberts
court and with the Rehnquist court that produced this trilogy
of cases described today is a very straightforward one. Both
those courts have and had activist tendencies. This is the
activist tendency that I would note. A tendency to, number one,
look at what Congress has done and to say we think that
Congress got it wrong. We think that Congress was wrong in its
political judgment, so therefore we are going to substitute our
political world view for Congress'.
There has been a second tendency to say, well, we think
that employment discrimination statutes in general have yielded
too many frivolous claims. That perhaps explains Ledbetter,
Professor Feldblum. That explains some of the more restrictive
interpretations of title 7 from the Rehnquist courts and the
Roberts courts.
And this is what is troubling about that. The world view
that there are too many frivolous lawsuits, the world view that
it is too easy for people to go into court, there may or may
not, Mr. Chairman, be some validity to that, but I thought it
was a political judgment. And because it is a political
judgment, I think the 535 of us in the Congress should get to
make it and the President should get to make it. I am not
comfortable with a body that is supposed to be calling balls
and strikes and interpreting the plain language of statutes and
interpreting congressional intent when it is manifest. I am not
comfortable with that body deciding, you know what, we have a
view of how the world ought to operate.
I think that that is judicial activism, and I am as
troubled by it as some of my colleagues are with its practice
on the left.
And I will yield back.
Mr. Nadler. Thank the gentleman.
I thank the witnesses.
Without objection, all Members will have 5 legislative days
to submit to the Chair additional written questions for the
witnesses which we will forward and ask the witnesses to
respond as promptly as you can so that their answers may be
made part of the record.
Without objection, all Members will have 5 legislative days
to submit any additional materials for inclusion in the record.
With that, and with the thanks of the Chair, this hearing
is adjourned.
[Whereupon, at 11:21 a.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, Member, Subcommittee on the
Constitution, Civil Rights, and Civil Liberties, and Chairman,
Committee on the Judiciary
More than seventeen years ago, Congress passed the Americans with
Disabilities Act to ensure independence and equality for people with
disabilities. Our hopes and declarations for this landmark civil rights
law were not timid or hollow. Our mandate was purposefully ambitious.
We sought--for once and for all--to prohibit unfair discrimination
based on disability.
Through this broad mandate, we intended to protect anyone who is
treated less favorably because of current, past, or perceived
disability. It was our hope that people with disabilities would be
protected from discrimination in the same way as those who experienced
discrimination on the basis of race, sex, national origin, religion, or
age.
Sadly, this has not happened because the Supreme Court has failed
to interpret the definition of ``disability'' as we intended. The Court
has deviated from our intent in two significant and critically
important ways.
First, the Court has construed the Act to allow it to consider the
impact of ``mitigating measures''--things like medicine, hearing aids,
or prosthetic devices--in determining whether an individual has a
``disability'' under the ADA. This means that individuals who are
fortunate enough to find ways to help manage their condition--and
therefore are more capable and independent--may not be entitled to the
Act's protections against disability discrimination because they are
not considered to be ``disabled enough'' under the ADA.
Second, the Supreme Court has interpreted the definition of
``disability'' too narrowly. As a result, the standard for qualifying
as ``disabled'' is unnecessarily difficult to meet, thereby denying
critical protection to many individuals with serious health conditions
who have faced disability discrimination.
We never intended--or expected--this to happen. As Mr. Orr, one of
our witnesses today will explain, the ADA, as interpreted by the Court,
provides little protection. Because Mr. Orr takes insulin and maintains
a strict dietary regimen that help control his diabetes, the courts
have held that Mr. Orr's impairment was not disabling enough and,
therefore, he is not entitled to the ADA's protection from
discrimination.
There are thousands of men, women, and children who--like Mr. Orr--
who are being denied the protections that Congress intended the ADA to
provide.
His testimony will undoubtedly underscore why H.R. 3195, the ``ADA
Restoration Act of 2007'' is so critical. This bipartisan legislation,
which I am proudly a cosponsor of, will restore our original intent and
help fulfill the ADA's promise of basic equality.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]