[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

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                       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.

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