    [House Hearing, 110 Congress]
    [From the U.S. Government Publishing Office]

                     H.R. 3195, ADA RESTORATION ACT OF 2007

    =======================================================================

                                    HEARING

                                   before the

                                  COMMITTEE ON
                              EDUCATION AND LABOR

                         U.S. House of Representatives

                           ONE HUNDRED TENTH CONGRESS

                                 SECOND SESSION

                                   __________

                HEARING HELD IN WASHINGTON, DC, JANUARY 29, 2008

                                   __________

                               Serial No. 110-76

                                   __________

          Printed for the use of the Committee on Education and Labor

                           Available on the Internet:
          http://www.gpoaccess.gov/congress/house/education/index.html

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                        COMMITTEE ON EDUCATION AND LABOR

                      GEORGE MILLER, California, Chairman

    Dale E. Kildee, Michigan, Vice       Howard P. ``Buck'' McKeon,
        Chairman                             California,
    Donald M. Payne, New Jersey            Ranking Minority Member
    Robert E. Andrews, New Jersey        Thomas E. Petri, Wisconsin
    Robert C. ``Bobby'' Scott, Virginia  Peter Hoekstra, Michigan
    Lynn C. Woolsey, California          Michael N. Castle, Delaware
    Ruben Hinojosa, Texas                Mark E. Souder, Indiana
    Carolyn McCarthy, New York           Vernon J. Ehlers, Michigan
    John F. Tierney, Massachusetts       Judy Biggert, Illinois
    Dennis J. Kucinich, Ohio             Todd Russell Platts, Pennsylvania
    David Wu, Oregon                     Ric Keller, Florida
    Rush D. Holt, New Jersey             Joe Wilson, South Carolina
    Susan A. Davis, California           John Kline, Minnesota
    Danny K. Davis, Illinois             Cathy McMorris Rodgers, Washington
    Raul M. Grijalva, Arizona            Kenny Marchant, Texas
    Timothy H. Bishop, New York          Tom Price, Georgia
    Linda T. Sanchez, California         Luis G. Fortuno, Puerto Rico
    John P. Sarbanes, Maryland           Charles W. Boustany, Jr.,
    Joe Sestak, Pennsylvania                 Louisiana
    David Loebsack, Iowa                 Virginia Foxx, North Carolina
    Mazie Hirono, Hawaii                 John R. ``Randy'' Kuhl, Jr., New
    Jason Altmire, Pennsylvania              York
    John A. Yarmuth, Kentucky            Rob Bishop, Utah
    Phil Hare, Illinois                  David Davis, Tennessee
    Yvette D. Clarke, New York           Timothy Walberg, Michigan
    Joe Courtney, Connecticut            Dean Heller, Nevada
    Carol Shea-Porter, New Hampshire

                         Mark Zuckerman, Staff Director
                       Vic Klatt, Minority Staff Director

                                C O N T E N T S

                                  ----------
                                                                       Page

    Hearing held on January 29, 2008.................................     1

    Statement of Members:
        Andrews, Hon. Robert E., a Representative in Congress from
          the State of New Jersey....................................     1
            Submissions for the record:
                Statement of the American Civil Liberties Union......    79
                Statement of the Bazelon Center for Mental Health Law    80
                Statement of the United Jewish Communities...........    81
                Statement of the Disability Policy Collaboration.....    83
                Statement of the Epilepsy Foundation.................    84
                Statement of the National Council on Disability......    86
                Statement of the National Council on Independent
                  Living.............................................    95
        Courtney, Hon. Joe, a Representative in Congress from the
          State of Connecticut:
            Prepared statement of....................................    74
            Statement of Dr. Sally Shaywitz..........................    75
        Fortuno, Hon. Luis G., a Representative in Congress from the
          Territory of Puerto Rico, prepared statement of............    78
        Hoyer, Hon. Steny H., Majority Leader, U.S. House of
          Representatives............................................     5
            Prepared statement of....................................     8
        McKeon, Hon. Howard P. ``Buck,'' Senior Republican Member,
          Committee on Education and Labor...........................     3
            Prepared statement of....................................     4
            Submissions for the record:
                Statement of organizatons in opposition to the bill..    97
                Statement of the U.S. Chamber of Commerce............    99
                Statement of the U.S. Department of Justice..........   112
                Statement of the HR Policy Association...............   118
                Statement of the National Federation of Independent
                  Business...........................................   140
        Woolsey, Hon. Lynn C., a Representative in Congress from the
          State of California........................................    79

    Statement of Witnesses:
        Burgdorf, Robert L., Jr., professor of law, University of the
          District of Columbia.......................................    28
            Prepared statement of....................................    30
        Fram, David K., Esq., director, ADA & EEO services, National
          Employment Law Institute...................................    21
            Prepared statement of....................................    23
        Imparato, Andrew J., president and chief executive officer,
          American Association of People with Disabilities (AAPD)....    10
            Prepared statement of....................................    12
        McClure, Carey L., electrician...............................    17
            Prepared statement of....................................    19

                     H.R. 3195, ADA RESTORATION ACT OF 2007

                                  ----------

                           Tuesday, January 29, 2008

                         U.S. House of Representatives

                        Committee on Education and Labor

                                 Washington, DC

                                  ----------

        The committee met, pursuant to call, at 10:01 a.m., in room
    2175, Rayburn House Office Building, Hon. George Miller
    [chairman of the committee] presiding.
        Present: Representatives Kildee, Payne, Andrews, Woolsey,
    Hinojosa, McCarthy, Kucinich, Holt, Bishop of New York,
    Sarbanes, Loebsack, Hirono, Yarmuth, Hare, Courtney, McKeon,
    Petri, Castle, Ehlers, Platts, Wilson, Kline, Kuhl, Davis of
    Tennessee, and Walberg.
        Staff present: Aaron Albright, Press Secretary; Tylease
    Alli, Hearing Clerk; Jordan Barab, Health/Safety Professional;
    Chris Brown, Labor Policy Advisor; Jody Calemine, Labor Policy
    Deputy Director; Carlos Fenwick, Policy Advisor for
    Subcommittee on Health, Employment, Labor and Pensions; Michael
    Gaffin, Staff Assistant, Labor; Brian Kennedy, General Counsel;
    Thomas Kiley, Communications Director; Sharon Lewis, Senior
    Disability Policy Advisor; Stephanie Moore, General Counsel;
    Alex Nock, Deputy Staff Director; Joe Novotny, Chief Clerk;
    Michele Varnhagen, Labor Policy Director; Mark Zuckerman, Staff
    Director; Robert Borden, General Counsel; Cameron Coursen,
    Assistant Communications Director; Ed Gilroy, Director of
    Workforce Policy; Rob Gregg, Legislative Assistant; Victor
    Klatt, Staff Director; Alexa Marrero, Communications Director;
    Jim Paretti, Workforce Policy Counsel; Molly McLaughlin Salmi,
    Deputy Director of Workforce Policy; Ken Serafin, Professional
    Staff Member; Linda Stevens, Chief Clerk/Assistant to the
    General Counsel.
        Mr. Andrews [presiding]. Good morning. The committee will
    come to order. We appreciate your attendance.
        This morning, the chairman of our full committee, Mr.
    Miller, is occupied in a markup in the Resources Committee. He
    has asked me to begin the hearing on his behalf, which I am
    privileged to do.
        Nearly two decades ago, President George Herbert Walker
    Bush, working with a Democratic majority in the Senate and a
    Democratic majority in the House, ably managed and led by the
    gentleman who is now our majority leader, who was then
    Congressman Hoyer, enacted a landmark piece of civil rights
    legislation called the Americans with Disabilities Act.
        The act has always had great promise. It came from a great
    consensus to do the right thing by Americans to help them
    achieve their highest potential, irrespective of their
    abilities or disabilities. It was a law that has enjoyed broad
    support and done much good. I would say that nearly 2 decades
    ago when President Bush signed that bill and leaders like Mr.
    Hoyer made possible, they certainly would not have thought that
    we would be sitting here in a situation where muscular
    dystrophy is not a disability, at least according to some of
    the federal courts of the land; a situation where carpal tunnel
    syndrome is not a disability according to the United States
    Supreme Court; where we would be in a situation where a severe
    vision impairment is not a disability according to the United
    States Supreme Court.
        Suffice it to say that what I believe are tortured judicial
    interpretations of the definition of a ``disability'' have put
    us in the position where the Americans whom we sought to
    protect under that law are not enjoying the full and robust
    protections of the law. The Americans with Disabilities Act
    essentially has three concepts. The first is that no American
    should be deprived of the right to pursue his or her best
    objectives and best aspirations because of any disability, and
    it defines ``disability.''
        Second, it says that there cannot be discrimination or
    mistreatment based upon disability. And third, it sets up a
    process where, in the case of our jurisdiction, employers and
    employees can determine what reasonable accommodations can and
    should be made so that a person with a disability can reach his
    or her highest potential. It is my judgment, based upon history
    of the last nearly 20 years, that the judicial interpretations
    of the meaning of ``disability'' has severely undercut the
    effectiveness of this act and severely excluded a lot of worthy
    Americans from the act's protection.
        As he did nearly two decades ago, Mr. Hoyer has responded
    to this concern. He has introduced legislation which would
    correct these judicial misinterpretations and we are privileged
    that he is with us this morning to discuss his legislation,
    discuss the underlying problem, and for this committee to begin
    the process of debating, on a bipartisan basis, what the best
    solution to the problem is.
        The way we will proceed this morning is that my friend the
    ranking member of the full committee, Mr. McKeon, will have an
    opening statement. Other members are invited to submit opening
    statements for the record. We will then turn to Mr. Hoyer, who
    will give us his testimony. Members will have a chance to ask
    him questions, although I will suggest to members that it has
    been our practice in the committee to recognize the busy
    schedules of our member witnesses, and then try to get our lay
    witnesses up as quickly as we can to proceed with the rest of
    the hearing. But obviously if members have questions for Mr.
    Hoyer, they are welcome to ask them.
        So with that in mind, at this time I would turn to my
    friend, the ranking member of the full committee, Mr. McKeon.
        Mr. McKeon. Thank you, Chairman Andrews, and good morning,
    Mr. Hoyer. With that introduction, I am sure you will be very
    brief and hurry up out of here.
        Mr. Andrews. That is not what I meant.
        Mr. McKeon. I know that is not what you meant. [Laughter.]
        We are here today to examine H.R. 3195, the ADA Restoration
    Act of 2007. The Americans with Disabilities Act was enacted in
    1990 with broad bipartisan support. Among its purposes was to
    protect individuals with disabilities from discrimination in
    the workplace. By many measures, the law has been a success. It
    has increased awareness of the needs of individuals with
    disabilities and has fostered recognition that these
    individuals can succeed and thrive if given the opportunity.
        I believe the employer community has taken the ADA to heart
    with businesses adopting policies specifically aimed at
    providing meaningful opportunities to individuals with
    disabilities. Although the ADA has been successful, supporters
    of the ADA Restoration Act believe the law needs to be
    expanded. They argue that it has been unduly narrowed, leaving
    some individuals without protections. I look forward to
    examining these concerns more fully today.
        At the same time, although there is widespread support for
    the principles of the ADA, concerns have been raised about the
    unintended consequences that could result from an expansion of
    the law. As this committee well knows, even the best of
    legislative intentions often produce harmful unintended
    consequences. Sometimes measures such as this may even harm the
    very individuals they seek to help.
        For instance, it has been argued that the ADA Restoration
    Act would significantly and dramatically expand the number of
    individuals receiving coverage. This may seem like a well-
    intended goal. Surely we all agree that every individual with a
    disability should be given adequate accommodations and
    protections.
        However, if the protections are dispersed to virtually
    every individual in the workplace, as some fear this bill would
    do, protections for those with the most substantial and
    limiting disabilities could be diluted. Resources could be
    stretched too thin, leaving those who need the help the most
    without the accommodations they deserve.
        I expect to hear discussion today about a series of
    judicial decisions and how they have impacted the law. Some
    believe these decisions have clarified and underscored the
    original congressional intent. Others believe they have
    appropriately narrowed the application of the ADA. I look
    forward to a vigorous debate on these questions.
        However, we must proceed cautiously before enacting
    legislation that seeks to overrule judicial findings. Certainly
    it is the prerogative of Congress to enact laws and ensure
    those laws are implemented as Congress intended. Yet as we have
    seen in this committee on one bill after the next, legislative
    fixes are rarely as clear-cut or narrowly drawn as we would
    hope. All too often in trying to correct one problem, we create
    several others.
        Such was the case, for instance, with the Ledbetter fair
    pay bill that did not overrule a single decision, as its
    supporters intended, but rather fundamentally altered decades
    of anti-discrimination policy and precedent. I hope and expect
    that will not be the case with the bill before us, the ADA
    Restoration Act. Although a number of concerns with the
    legislation have already been identified, I am hopeful that as
    the committee moves forward we can correct these flaws so that
    the ADA Restoration Act enjoys the same strong support as its
    predecessor nearly 18 years ago.
        We have with us today an esteemed group of witnesses,
    including the sponsor of the legislation, the House majority
    leader. I want to thank each of the witnesses for joining us as
    we give careful consideration to this bill. I look forward to a
    thoughtful, open-minded debate that looks not only at the
    bill's intended consequences, but also those that may not be
    intended. By ensuring the legislation is crafted narrowly and
    precisely, we can avoid undue burdens and litigation traps that
    will harm the very individuals we are seeking to protect.
        Thank you, Chairman Andrews, and I yield back the balance
    of my time.

    Prepared Statement of Hon. Howard P. ``Buck'' McKeon, Senior Republican
                    Member, Committee on Education and Labor

        Thank you Chairman Miller, and good morning. We are here today to
    examine H.R. 3195, the ADA Restoration Act of 2007.
        The Americans with Disabilities Act was enacted in 1990 with broad
    bipartisan support. Among its purposes was to protect individuals with
    disabilities from discrimination in the workplace.
        By many measures, the law has been a success. It has increased
    awareness of the needs of individuals with disabilities, and has
    fostered recognition that these individuals can succeed and thrive if
    given the opportunity.
        I believe the employer community has taken the ADA to heart, with
    businesses adopting policies specifically aimed at providing meaningful
    opportunities to individuals with disabilities.
        Although the ADA has been successful, supporters of the ADA
    Restoration Act believe the law needs to be expanded. They argue that
    it has been unduly narrowed, leaving some individuals without
    protections. I look forward to examining these concerns more fully
    today.
        At the same time, although there is widespread support for the
    principles of the ADA concerns have been raised about the unintended
    consequences that would result from an expansion of the law.
        As this committee well knows, even the best of legislative
    intentions often produce harmful unintended consequences. Sometimes
    measures such as this may even harm the very individuals they seek to
    help.
        For instance, it has been argued that the ADA Restoration Act would
    significantly and dramatically expand the number of individuals
    receiving coverage. This may seem like a well-intended goal--surely, we
    all agree that every individual with a disability should be given
    adequate accommodations and protections. However, if the protections
    are dispersed to virtually every individual in the workplace--as some
    fear this bill would do--protections for those with the most
    substantial and limiting disabilities could be diluted. Resources could
    be stretched too thin, leaving those who need help the most without the
    accommodations they deserve.
        I expect to hear discussion today about how a series of judicial
    decisions have impacted the law. Some believe these decisions have
    clarified and underscored the original congressional intent. Others
    believe they have inappropriately narrowed the application of the ADA.
    I look forward to a vigorous debate on these questions.
        However, we must proceed cautiously before enacting legislation
    that seeks to overrule judicial findings. Certainly it is the
    prerogative of Congress to enact laws and ensure those laws are
    implemented as Congress intended. Yet as we have seen in this
    committee, on one bill after the next, legislative ``fixes'' are rarely
    as clear cut or narrowly drawn as we would hope. All too often, in
    trying to correct one problem, we create several others. Such was the
    case, for instance, with the Ledbetter Fair Pay bill that did not
    overrule a single decision as its supporters intended, but rather
    fundamentally altered decades of antidiscrimination policy and
    precedent.
        I hope and expect that will not be the case with the bill before
    us, the ADA Restoration Act. Although a number of concerns with the
    legislation have already been identified, I am hopeful that as the
    committee moves forward we can correct these flaws so that the ADA
    Restoration Act enjoys the same strong support as its predecessor
    nearly 18 years ago.
        We have with us today an esteemed group of witnesses including the
    sponsor of the legislation, the House Majority Leader. I want to thank
    each of the witnesses for joining us as we give careful consideration
    to this bill.
        I look forward to a thoughtful, open-minded debate that looks not
    only at the bill's intended consequences, but also those that may not
    be intended. By ensuring the legislation is crafted narrowly and
    precisely, we can avoid undue burdens and litigation traps that will
    harm the very individuals we are seeking to protect. Thank you Chairman
    Miller, I yield back the balance of my time.
                                     ______

        Mr. Andrews. Thank you, Mr. McKeon.
        Steny Hoyer is the majority leader of the House of
    Representatives. He represents Maryland's fifth congressional
    district. Prior to being elected majority leader, Congressman
    Hoyer served 2 terms as the Democratic whip. Congressman
    Hoyer's service as majority leader makes him the highest
    ranking member of Congress from Maryland in the history of
    Maryland.
        Now serving his 14th term in Congress, which included his
    stellar service in helping to make the Americans with
    Disabilities Act a reality, he became the longest serving
    member of the U.S. House of Representatives from Maryland in
    Maryland's history on June 4, 2007.
        He is broadly respected on both sides of the aisle. He is a
    consummate legislator and a dear friend and colleague. We
    welcome him to the committee.

    STATEMENT OF HON. STENY H. HOYER, A REPRESENTATIVE IN CONGRESS
              FROM THE STATE OF MARYLAND, MAJORITY LEADER

        Mr. Hoyer. Thank you very much, Mr. Chairman, for that
    generous introduction.
        Mr. McKeon, thank you for your very thoughtful statement.
    As someone who worked with one of your predecessors, Steve
    Bartlett, for literally scores of hours, over 100 hours trying
    to do what you say is our objective jointly, and that is a
    piece of legislation which is reasonable and can be applied and
    used and interpreted as the Congress intends. That is the
    purpose of this legislation.
        I am pleased to be joined in the room, if not at the table,
    with Cheryl Sensenbrenner. My cosponsor of this legislation is
    Jim Sensenbrenner, the ranking member of the Judiciary
    Committee. Mr. Sensenbrenner and I have worked long together on
    issues regarding disabilities, and I thank his wife, Mrs.
    Sensenbrenner, who has been a leader in her own right on this
    issue, who is as I say, with us today.
        One other person I would like to mention, the real hero of
    the Americans with Disabilities Act, were those with
    disabilities all over this country who came to Congress and
    told us of the discrimination to which they were subjected. A
    galvanizing leader in that effort was Justin Dart. Many of you
    knew Justin Dart. His widow, Yoshiko, is in the room with us
    and she has, as she does so often have, Justin's hat with her.
    His admonition to us was to keep the faith and keep the focus
    on making sure that the opportunities promised by the Americans
    with Disabilities Act became the reality. Yoshiko, thank you
    for the efforts that you have made.
        I want to thank you for holding this hearing on the ADA
    Restoration Act. It was introduced last July 26 and it already
    has 244 cosponsors, a broadly bipartisan cosponsorship. Let me
    assure you of one thing at the outset of my testimony. The
    purpose of this legislation we believe is straightforward and
    unambiguous. The bill does not seek to expand the rights
    guaranteed in the landmark Americans with Disabilities Act.
    Instead, it seeks to clarify the law, restoring the scope of
    protection available under the ADA.
        It responds to court decisions that have sharply restricted
    the class of people who can invoke protection under the law.
    And it reinstates the original congressional intent when we
    passed the ADA, and which I might say was a collaborative
    effort between President Bush, in the late 1980s and 1990, and
    the Congress in a very bipartisan way. When the first President
    Bush signed the ADA on July 26, 1990, he hailed it as, ``the
    world's first comprehensive declaration of equality for people
    with disabilities.'' He was absolutely correct, and it has been
    viewed as such around the world.
        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 talent of millions of
    Americans with disabilities.
        And we were right, as Mr. McKeon has indicated and Mr.
    Andrews also. 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 United States Supreme
    Court, have narrowly interpreted the ADA, limiting its scope
    and undermining, I suggest to you, congressional intent.
        When we wrote the ADA, we intentionally used a definition
    of ``disability'' that was broad, borrowing from an existing
    definition of the Rehabilitation Act of 1973, our assumption
    being that that law, in effect for 17 years prior to the
    signing of this bill, had been interpreted many times, and
    therefore we were trying to eliminate controversy, rather than
    create it. We did this because the courts have generously
    interpreted this definition in the Rehabilitation Act, and we
    thought using established language would help us avoid a
    potentially divisive political debate over the definition of
    ``disabled.''
        Therefore, we could not have fathomed or anticipated that
    people with diabetes, epilepsy, heart conditions, cancer, and
    mental illness would have their ADA claims rejected and kicked
    out of court because, with medication, they would be considered
    too functional to meet the definition of ``disabled.''
        In other words, our premise now is that if I discriminate
    against you because you have epilepsy, but you can perform a
    major life function because the medication that you are taking
    mitigates the effects of your epilepsy and prevents seizures,
    the fact that I have discriminated against you and said you
    can't have the job because you have epilepsy will not be
    covered under this act. No one on this panel, from right to
    left, Republican or Democrat, could have conceived that such a
    conclusion would have been reached.
        The Supreme Court decision in Sutton, Kirkingburg, and
    Murphy cases in 1999 and the Toyota Manufacturing case in 2002
    are, simply put, misinterpretations of the law. I wrote an op/
    ed piece in The Washington Post shortly after one of those
    decisions stating that. In Toyota Manufacturing, for example,
    Justice O'Connor, writing for the court, said the terms,
    ``substantially limited,'' and ``major life activities'' need
    to be, and in her words ``strictly interpreted to create a
    demanding standard for qualifying as disabled.''
        That is a conclusion that I think none of us would have
    reached who voted for the act, nor would President Bush when he
    signed the act. The court went on to say, `` `substantially
    limited' means to prevent or severely restrict.'' This was not
    our intent when Congress passed the ADA. Again, if I
    discriminate against you because you have epilepsy, the fact
    that your epilepsy does not adversely affect your ability to do
    the job for which you apply seems to be irrelevant. It is the
    discrimination that is relevant.
        We did not anticipate that contrary to our explicit
    instructions in the legislation, the court would eliminate from
    the act's coverage individuals who have mitigated the effects
    of their impairment with medication or assistive devices, as in
    Sutton, Murphy and Kirkingburg. Again, this is not, I suggest
    to you, what the Congress intended. We intended a broad
    application of the law. Simply put, the point of the ADA is not
    the disability. It is the discrimination. It is the prevention
    of wrongful and unlawful discrimination.
        Let me be clear--only people who can prove that they have
    been discriminated against on the basis of real or perceived
    disability have potentially valid claims under the ADA. Such
    people must also prove that they are qualified to do the job
    with or without a reasonable accommodation. Mr. Bartlett and I
    and members of Congress and outside advocacy groups, business
    and consumers, prospective employees, all spent a lot of time
    on this so the act would be a reasonable act.
        H.R. 3195, introduced by myself and Congressman
    Sensenbrenner, and now 242 others, the former chairman of the
    Judiciary Committee, Mr. Sensenbrenner--we designed it to
    restore the broad reach of ADA that we believed was plain in
    1990. I think President Bush's statement upon signing reflects
    that belief. Among other things, the bill will amend the
    definition of ``disability'' so that people who Congress
    originally intended to protect from discrimination are in fact
    covered under the ADA.
        Secondly, it will prevent courts from considering
    mitigating measures. The issue was not whether measures could
    mitigate your disability. It was the discrimination based upon
    your disability, such as eyeglasses or medication, when
    determining whether a person qualifies for protection under the
    law.
        Thirdly, it will modify findings in the ADA that have been
    used by the courts to support a narrow reading of
    ``disability.'' Almost every civil rights statute, indeed every
    civil rights statute we have passed, was intended to be and was
    instructed to be broadly interpreted to affect the objective of
    eliminating arbitrary and capricious discrimination.
    Specifically, this bill strikes the finding pertaining to ``43
    million Americans'' and the findings pertaining to ``discrete
    and insular minority.''
        Let me conclude, Mr. Chairman and Mr. McKeon, 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 our reach. Passage of this
    legislation is imperative 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
    have a confidence that they will not be discriminated against,
    notwithstanding their ability.
        Thank you, Mr. Chairman.
        [The statement of Mr. Hoyer follows:]

    Prepared Statement of Hon. Steny H. Hoyer, Majority Leader, U.S. House
                               of Representatives

        Chairman Miller, Ranking Member McKeon, and Members of the
    Committee: Thank you for holding this hearing on H.R. 3195, the ``ADA
    Restoration Act of 2007''--legislation that was introduced last July 26
    and which already has been co-sponsored by 244 Members from both sides
    of the aisle.
        Let me assure you of one thing at the outset of my testimony: The
    purpose of this legislation is straight-forward and unambiguous.
        The bill does not seek to expand the rights guaranteed under the
    landmark Americans With Disabilities Act.
        Instead, it seeks to clarify the law, restoring the scope of
    protection available under the ADA. It responds to court decisions that
    have sharply restricted the class of people who can invoke protection
    under the law. And it reinstates the original Congressional intent when
    we passed the ADA.
        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.
        When we wrote the ADA, we intentionally used a definition of
    ``disability'' that was broad--borrowing from an existing definition
    from the Rehabilitation Act of 1973.
        We did this because the courts had generously interpreted this
    definition in the Rehabilitation Act. And, we thought using established
    language would help us avoid a potentially divisive political debate
    over the definition of ``disabled.''
        Therefore, we could not have fathomed that people with diabetes,
    epilepsy, heart conditions, cancer, and mental illnesses would have
    their ADA claims kicked out of court because, with medication, they
    would be considered too functional to meet the definition of
    ``disabled.''
        Nor could we have anticipated a situation where an 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.
        The Supreme Court's decisions in the Sutton, Kirkingburg and Murphy
    cases in 1999, and Toyota Manufacturing in 2002 are, simply put,
    misinterpretations of the law.
        In Toyota Manufacturing, 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 that
    ``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 have
    mitigated the effects of their impairments with medication or assistive
    devices, as in Sutton, Murphy and Kirkingburg.
        Again, this is not what Congress intended when it passed the ADA.
    We intended a broad application of this law. Simply put, the point of
    the ADA is not disability, it is the prevention of wrongful and
    unlawful discrimination.
        Let me be clear: Only people who can prove that they have been
    discriminated against on the basis of a real or perceived disability
    have a potentially valid claim under the ADA. Such people must also
    prove that they are qualified to do the job, with or without a
    reasonable accommodation.
        H.R. 3195--introduced by myself and Congressman Sensenbrenner, the
    former Chairman of the Judiciary Committee--is designed to restore the
    broad reach of ADA that we believed was plain in 1990.
        Among other things, the bill will:
         amend the definition of ``disability'' so that people who
    Congress originally intended to protect from discrimination are covered
    under the ADA;
         prevent courts from considering ``mitigating measures''--
    such as eyeglasses or medication--when determining whether a person
    qualifies for protection under the law; and
         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''
    and the finding pertaining to ``discrete and insular minority.''
        Let me conclude by noting that this past July 26th, 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 to restoring
    Congressional intent, to achieving the ADA's promise, and to creating a
    society in which Americans with disabilities can realize their
    potential.
                                     ______

        Mr. Andrews. Thank you, Mr. Leader. I think that your
    statement very persuasively demonstrated why 243 of your
    colleagues have taken the position that you have, including
    many members of this committee on both sides of the aisle. So
    thank you.
        Mr. Hoyer. Mr. Chairman, if I could just observe on that
    issue in response to Mr. McKeon's observations. The ADA passed
    with some 400 votes through the House of Representatives, but
    it was a very long and focused process that we went through in
    four major committees and a number of subcommittees before we
    got the legislation passed. We worked very hard on it. We think
    it did what we wanted to do. We think, as I have said, that the
    court cases misinterpret our intent.
        But it is not so much the misinterpretation of our intent
    that is important. It is the consequence for those people to
    whom we were opening the doors, which is what the first
    President Bush talked about in terms of giving them full access
    to the opportunities America provides.
        I thank the chairman for this opportunity to testify. I
    know you look forward to hearing from some folks who are
    extraordinarily committed and courageous and knowledgeable
    about this issue. Thank you, Mr. Chairman.
        Mr. Andrews. We thank you.
        Do any of our majority members have a question for the
    majority leader?
        Mr. McKeon, do any of your members have a question for the
    majority leader?
        Mr. Hoyer. I want to thank all the members.
        Mr. Holt. Mr. Chairman?
        Mr. Andrews. Yes, Mr. Holt?
        Mr. Holt. Just to add to your earlier comments, to thank
    the majority leader for his years of effort to prevent the
    arbitrary discrimination and to support those who are working
    so hard for access and equal opportunity.
        Mr. Hoyer. Thank you. I appreciate that very much.
        Mr. Andrews. Thank you, Mr. Hoyer. Now, go make the place
    run. [Laughter.]
        Mr. Hoyer. A heavy responsibility, but I will try to carry
    it out. [Laughter.]
        Mr. Andrews. Yes, sir.
        I would ask if the witnesses from the second panel could
    approach the table and take their seats. I am going to begin
    the process of reading their introductions now, so we can get
    to their testimony.
        Mr. Andrew Imparato is the president and chief executive
    officer of the American Association of People with
    Disabilities. Prior to joining the AAPD, Imparato was general
    counsel and director of policy for the National Council on
    Disability. Mr. Imparato graduated from Yale College and
    Stanford Law School.
        Mr. Carey McClure is an electrician and a resident of
    Griffin, Georgia. We welcome him. He enjoys fishing, playing
    games with friends, and spending time with his children and
    grandchildren. We welcome Mr. McClure.
        Mr. David Fram is the director, ADA and EEO services, of
    the National Employment Law Institute. From 1991 to 1996, Mr.
    Fram--did I pronounce your name correctly, Mr. Fram?
        Mr. Fram. Fram.
        Mr. Andrews. Fram.
        Mr. Fram. Close enough.
        Mr. Andrews. Okay. Mr. Fram was policy attorney in the
    Office of Legal Counsel for the Equal Employment Opportunity
    Commission here in Washington. Prior to joining the EEOC, Mr.
    Fram was with the firm of Hogan and Hartson in Washington.
    Welcome.
        And finally, Professor Robert Burgdorf is a professor at
    the University of the District of Columbia, the David A. Clarke
    School of Law. He directs the legislation clinic and teaches
    disability rights law and constitutional law. The United States
    Supreme Court has recognized Professor Burgdorf as, ``the
    drafter of the original ADA bill introduced in Congress in
    1988''--quite a testimony to your competence being here today.
        Gentlemen, we welcome you. The rules are that your written
    statements will be accepted into the record of the hearing
    without objection, so everything you have had to tell the
    committee will be part of the permanent record of these
    proceedings. We would ask you to summarize those written
    statements in 5 minutes or less so that we can get to dialogue
    and questions from the members of the committee.
        In front of you, you will see a box with lights on the box.
    You have 5 minutes, as we said, to summarize your views. When
    the yellow light appears, it means you have 1 minute remaining
    on your time. When the red light appears, it means that your 5
    minutes is up and we would ask you to briefly wrap things up so
    we can get to questions from the members.
        So we welcome you. We are very glad that you are with us.
    Mr. Imparato, we would ask that you begin with your testimony.

       STATEMENT OF ANDREW IMPARATO, PRESIDENT AND CEO, AMERICAN
                ASSOCIATION OF PEOPLE WITH DISABILITIES

        Mr. Imparato. Thank you very much, Congressman Andrews and
    Ranking Member McKeon and everybody on the committee for being
    here and for having a hearing on this very important topic.
        As a Baltimore resident, I also want to acknowledge one of
    our representatives. Congressman Sarbanes, it is great to see
    you here. Our children play piano together, so it is good to
    see you in another context.
        You know, I want to start just by saying I am here as an
    attorney who graduated from law school in 1990, the year that
    the Americans with Disabilities Act was enacted into law. I
    personally have bipolar disorder and manic depression, and I am
    one of thousands of professionals who have developed our
    careers in the context of a law that protected our civil
    rights.
        I have been very open about my disability, and it hasn't
    kept me from accomplishing my career goals. I think that was
    one of the things that those of you who are here and worked on
    the ADA the first time around were hoping would happen, so I
    wanted to start in that positive vein.
        I am testifying today on behalf of the American Association
    of People with Disabilities, which was founded on the fifth
    anniversary of the Americans with Disabilities Act. Our mission
    is to organize the disability community defined broadly so that
    we have more power politically, socially and economically.
        I also want to join Majority Leader Hoyer in acknowledging
    Cheryl Sensenbrenner, who is the chair of my board at the
    American Association of People with Disabilities. I want to
    acknowledge Majority Leader Hoyer and Congressman Sensenbrenner
    for their leadership on this bipartisan effort.
        The ADA Restoration Act is the top legislative priority for
    AAPD, and we believe it is critically important that the ADA's
    protection of equal employment opportunity be extended to all
    the people who Congress intended when you passed the ADA in
    1990, including people with epilepsy, diabetes, cancer,
    depression, intellectual disabilities, and a whole host of
    other conditions who have been told by federal courts that they
    aren't disabled enough to have civil rights protections.
        The ADA gave hope to millions of Americans with
    disabilities and we must pass ADA restoration so that we can
    restore that hope for people like my colleague, Carey McClure,
    who you are about to hear from, who have been removed from the
    ADA's protections by activist judges.
        On a personal level, because of what the courts have done
    to the ADA, I no longer believe that I can count on the law to
    protect me against employment discrimination. At a minimum if I
    were to bring a case, I would be subject to a barrage of
    personal questions that have nothing to do with my
    qualifications on the job.
        The ADA is not a disability retirement law, but the Supreme
    Court and the lower federal courts have gone out of their way
    to read the ADA as if it were only for people with disabilities
    that are so significant that they cannot work and cannot take
    care of themselves. Under this narrow reading, two of the ADA's
    strongest legislative champions, Tony Coelho and Bob Dole,
    would likely be told by a federal court that they are not
    disabled enough to be protected by the ADA.
        Employment discrimination cases should be about how a
    person is treated in the workplace. But because of Supreme
    Court decisions like the 2002 Toyota v. Williams case that
    Majority Leader Hoyer referenced, we have come to a point where
    the Supreme Court has opined that the term ``disability'' is to
    be ``interpreted strictly to create a demanding standard for
    qualifying as disabled,'' and victims of disability
    discrimination are finding it harder and harder to reach the
    issue of how they were treated by their employer.
        Citing the Williams case, the 11th Circuit ruled last May
    in Littleton v. Wal-Mart that a 29-year-old with an
    intellectual disability who was receiving Social Security
    disability benefits, did not submit enough evidence to
    establish that he had a disability for purposes of the ADA.
    Examining whether Mr. Littleton was substantially limited in a
    major life activity, the 11th Circuit stated that, ``It is
    unclear whether thinking, communicating and social interaction
    are major life activities under the ADA.'' The court went on to
    use evidence about Mr. Littleton's ability to drive and be
    interviewed for a job against him on the issue of his
    disability.
        I just want to briefly mention the broader policy context
    for this legislation. This is a committee that oversees the
    Individuals with Disabilities Education Act, the ADA, the
    Vocational Rehabilitation legislation, and I ask you as a
    committee, what is the message that you want to send to people
    with disabilities? Do we want to send 18 years after the
    Americans with Disabilities Act the message that you should be
    careful not to achieve to your full potential, be careful not
    to live as independently as possible, or you may lose your
    federal civil rights protections?
        That is the message that the court decisions are sending to
    people with disabilities. That is the message that a lot of our
    disability benefit programs are sending to people with
    disabilities. Those programs need to be modernized.
        But certainly in the area of civil rights, we should be
    sending the message that people with disabilities should
    achieve to their full potential, should enjoy their civil
    rights protections, and cases of employment discrimination
    should turn on whether they are qualified for the job, not how
    disabled they are.
        Thank you very much for the opportunity to testify. I look
    forward to the questions.
        [The statement of Mr. Imparato follows:]

    Prepared Statement of Andrew J. Imparato, President and Chief Executive
        Officer, American Association of People with Disabilities (AAPD)

        Chairman Miller, Ranking Member McKeon, and Members of the House
    Committee on Education and Labor: Thank you for the opportunity to
    provide testimony today in support of the Americans with Disabilities
    Act Restoration Act (ADA Restoration Act) of 2007, H.R. 3195. My name
    is Andrew J. Imparato and I am the President and Chief Executive
    Officer of the American Association of People with Disabilities (AAPD).
    With more than 100,000 members around the country, AAPD is the largest
    cross-disability membership organization in the United States. AAPD's
    mission is to organize the disability community to be a powerful force
    for change--socially, politically and economically. Founded on the
    fifth anniversary of the signing of the Americans with Disabilities Act
    (ADA), AAPD has a strong interest in the full enforcement and
    implementation of this landmark civil rights law. On behalf of the
    Board, staff and members of AAPD, I applaud you for holding this
    hearing today and for devoting your attention to one of the top policy
    priorities of the disability community.
        Prior to joining AAPD in 1999, I worked as an attorney at the
    Disability Law Center in Boston, the U.S. Senate Subcommittee on
    Disability Policy, the U.S. Equal Employment Opportunity Commission,
    and the National Council on Disability. In my role as General Counsel
    and Director of Policy at NCD, I oversaw a multi-year study of federal
    enforcement of the ADA and other civil rights laws for people with
    disabilities.
        I am honored to testify today along with Professor Robert Burgdorf,
    an attorney and disability leader who played such an important role in
    conceptualizing and drafting the ADA when he worked for the National
    Council on Disability (NCD) in the late 1980s. Professor Burgdorf also
    helped to lead NCD's more recent effort to develop recommendations for
    the legislative changes needed to restore the ADA to its original
    intent in the wake of a number of highly problematic Supreme Court and
    lower federal court decisions that have severely restricted the scope
    of the protected class and made it difficult for people with a wide
    range of disabilities to bring claims for discrimination in employment.
    Since the ADA's passage, courts have repeatedly told plaintiffs--who
    are seeking not federal disability retirement benefits but simply fair
    treatment in the workplace--that their conditions do not rise to the
    level of an ADA disability and that they are not protected against
    discrimination under the ADA.
        Having graduated law school in 1990, I am one of many professionals
    with disabilities who have pursued our careers armed with a federal law
    designed to ensure our equal employment opportunity. I was a third year
    law student when I experienced my first episode of serious depression.
    Seemingly overnight, I went from being a confident visiting student at
    Harvard Law School to having difficulty getting out of bed and making
    it through the day. I was blessed to have an incredibly supportive wife
    and was able to get the support I needed to finish law school and begin
    my career. Since that time, I have lived with recurrent episodes of
    depression and hypomania, with a diagnosis of bipolar disorder or manic
    depression. I spend approximately six months every year with low energy
    and low self-confidence followed by six months of high energy, high
    self-confidence, and limited patience. One of the symptoms of
    depression is a tendency to undervalue one's skills and work capacity,
    and I remember during my first bout with depression wondering if I
    would be able to function in a full-time professional environment. I
    now know that going to work every day in a field that I find compelling
    has turned out to be one of the strongest mood stabilizers in my life.
    I strongly believe in the therapeutic value of work for people with
    psychiatric conditions and a wide range of disabilities, and I am
    deeply troubled that we have not seen measurable increases in the
    employment rates of people with significant disabilities since the
    ADA's enactment in 1990.\1\ A report out from the U.S. Equal Employment
    Opportunity Commission (EEOC) just this month\2\ has only added to my
    alarm and dismay. The report notes a decline in the employment of
    people with significant disabilities in the federal government every
    year for more than the last decade, in sharp contrast to the overall
    growth of the federal workforce.
        As someone who has been very open about my diagnosis over the
    course of my legal career, I have found it difficult to predict how
    people may react upon learning that I have bipolar disorder. It is my
    observation, especially in instances in which a disability is not
    visible or readily apparent, that people have the tendency either to
    question whether it is real or to assume that it is so severe that it
    disqualifies that person from particular jobs or assignments. One of
    our challenges as disability advocates is to facilitate the ability of
    individuals to be open about their disabilities and have them be taken
    seriously and accommodated at work if necessary, all the while avoiding
    overreactions by employers or prospective employers upon learning of a
    diagnosis. Surmounting such attitudinal barriers leads to better
    employment outcomes, greater productivity, and a healthier work climate
    for the millions of Americans who still feel the need to keep their
    disabilities and chronic health conditions a secret at work.
        For the most part, I have been quite fortunate to have found
    employers and mentors who have cultivated my talents and created
    opportunities for me to grow and demonstrate my abilities. However,
    that is not to say that I have been nor will continue to be immune from
    facing discrimination in the workplace. Until recent years, I took
    comfort in knowing that I had civil rights protections should I ever
    need them. Unfortunately, in light of a number of narrowing court
    decisions in the last decade, I no longer have confidence that the ADA
    would protect me if I needed it. Because of court decisions that have
    aggressively narrowed the scope of the ADA's protected class, were I to
    bring a claim of disability employment discrimination today, a court
    would likely conclude that my employment successes and integrated
    family life indicate that my diagnosis is not sufficiently disabling to
    claim the protections of the ADA, even in light of blatant
    discrimination on the basis of my bipolar disorder.\3\ At a minimum, I
    could expect to be subjected to a battery of questions probing into the
    intimate details of my life and disability that are entirely irrelevant
    to my ability to perform the job. Throughout the country, this has
    become not the exception but the norm for victims of employment
    discrimination on the basis of disability who attempt to have their day
    in court. I will highlight several of their stories throughout my
    testimony. Their stories help to demonstrate that this problem is not
    limited to a single outlier judge, a problematic employer or particular
    geographic region. Rather, the troubling case law, which is voluminous,
    is indicative of a growing nationwide problem that requires a
    Congressional remedy.
        I am here today to testify that the broad remedial statute that
    Congress wrote and passed in 1990 has fallen victim to a form of
    judicial activism whereby the U.S. Supreme Court and the lower federal
    courts have made it increasingly difficult for individuals with
    epilepsy, diabetes, amputations, various forms of cancer, and a wide
    range of mental and physical conditions to establish that they have a
    disability for purposes of the ADA. On account of these narrowing court
    decisions, Americans who experience employment discrimination on the
    basis of their disabilities are increasingly precluded from reaching
    the issue of whether they were treated fairly in the workplace because
    their cases are being tossed out of court on the issue of whether their
    disability is ``severe enough'' to come under the protections of the
    ADA. In fact, data suggests that as many as 97% of all disability
    discrimination cases are decided in favor of the employer, often before
    the individual even has the opportunity to demonstrate how their
    treatment was unfair.\4\ So much a deviation is the ADA's current state
    of affairs from original Congressional intent that Members of Congress
    and the former U.S. Attorney General, involved in its original passage,
    have repeatedly stated their displeasure\5\ and their support of H.R.
    3195 as a remedy to the courts' damage.
        In 1990, the ADA was heralded as an ``emancipation proclamation''
    \6\ for people with disabilities. Seventeen years later, on account of
    judicial activism, we are far from having a law that can be counted on
    to safeguard the fair treatment of people with disabilities in the
    workplace. On the contrary, we have a federal court decision from just
    last May in which Charles Littleton, Jr., a young man with intellectual
    and developmental disabilities who was attempting to start work as a
    cart pusher at a local retailer through the help of a state vocational
    assistance program, was told that he did not qualify for the ADA's
    protections after he experienced discrimination during the hiring
    process. The Eleventh Circuit Court of Appeals noted about Mr.
    Littleton, who lives with his mother, has the cognitive abilities of an
    8 year-old, and receives Social Security disability benefits: ``We do
    not doubt that Littleton has certain limitations because of his mental
    retardation. In order to qualify as `disabled' under the ADA, however,
    Littleton has the burden of proving that he actually is * * *
    substantially limited as to `major life activities' under the ADA.''
    \7\ Later in their analysis, the court stated that no evidence existed
    to support Mr. Littleton's contention that his intellectual
    disabilities substantially limit him in major life activities,
    explaining, ``It is unclear whether thinking, communicating, and social
    interaction are `major life activities' under the ADA.'' \8\
        How did we end up with such absurd court decisions all over the
    country, and how do we fix them?
        When Congress wrote and passed the ADA in 1990, it included in the
    statute a definition of ``individual with a disability'' that had been
    used since 1978 under the federal Rehabilitation Act. That three-
    pronged definition provides protections for individuals with a physical
    or mental impairment that substantially limits at lease one major life
    activity; individuals with a history of such an impairment; or
    individuals who are regarded or perceived as having such an impairment
    and treated unfairly on that basis. As the Supreme Court noted in its
    1987 Nassau County School Board v. Arline decision, ``By amending the
    definition of `handicapped individual' to include not only those who
    are actually physically impaired, but also those who are regarded as
    impaired * * *, Congress acknowledged that society's accumulated myths
    and fears about disability and disease are as handicapping as are the
    physical limitations that flow from actual impairment.'' \9\ This key
    observation, coupled with over a decade of federal case law
    interpreting the definition of ``handicap'' in the Rehabilitation Act
    broadly, gave Congress every reason to expect that the ADA's definition
    would receive a similarly broad construction by the courts, thus
    protecting people with all kinds of disabilities against employment
    discrimination.
        Regrettably, beginning with a trio of Supreme Court decisions in
    1999, we have witnessed an aggressive effort by the federal courts to
    narrow the scope of who qualifies for civil rights protections under
    the ADA. In Sutton v. United Airlines and two related 1999
    decisions,\10\ the Supreme Court ruled that people who are able to
    function well with the help of ``mitigating measures,'' including
    medication, prosthetics, diet, hearing aids, etc., should not be
    considered substantially limited even if they clearly are so in their
    natural or unmitigated state. This holding, which directly contradicted
    the positions of the all of the federal agencies charged with enforcing
    the ADA,\11\ the eight federal Courts of Appeal that had addressed
    ``mitigating measures'' prior to Sutton case,\12\ as well as the report
    language of Congressional committees that helped to write the ADA,\13\
    has led to a string of decisions in which plaintiffs are told that
    their serious health conditions do not rise to the level of
    ``disabilities'' and therefore they are not within the law's protected
    class. That is what happened to Ruth Eckhaus. Ms. Eckhaus, a railroad
    employee who used a hearing aid and who was told by her employer that
    they ``could not hire someone with a hearing aid because [the employer]
    had no way of knowing if she would remember to bring her hearing aid to
    work,'' \14\ was not protected by the ADA when she sought to bring a
    case of employment discrimination. The court held that Ms. Eckhaus
    ``failed to show that her hearing impairment, when corrected by hearing
    aids, substantially limits a major life activity,'' \15\ and was
    therefore not ``disabled'' for purposes of the ADA's protections.
        The effect of the Sutton trilogy is that people with all kinds of
    disabilities, who make use of a treatment or support to enable
    themselves to participate more fully and independently in society,
    including in the workplace, are increasingly finding themselves without
    the ADA's civil rights protections. Moreover, when employees attempt to
    establish that they do indeed have a disability by introducing evidence
    that was previously unknown to the employer and that did not form the
    basis for the adverse action being challenged, that evidence is then
    being used successfully by employers to argue that the employee is not
    qualified in the first place for the position in question.\16\
        The damage caused by the mitigating measures decisions has been
    magnified by other rulings, notably the 2002 Supreme Court decision in
    Toyota v. Williams.\17\ In Williams, contrary to the clear intent of
    Congress that the law be construed broadly as a remedial measure, the
    Court ruled that that the definition of disability needed to be
    interpreted strictly ``* * * to create a demanding standard for
    qualifying as disabled.'' \18\ Lower courts certainly took note of the
    Williams decision, ruling in case after case that people with all
    varieties of disabilities--muscular dystrophy,\19\ epilepsy,\20\
    traumatic brain injury,\21\ amputation,\22\ breast cancer (and
    accompanying masectomy, chemotherapy, and radiation therapy),\23\
    fractured spine\24\--are not disabled for purposes of the protections
    of the ADA. Mr. Carey McClure, an electrician who has muscular
    dystrophy, is here today to give his own account of how the Williams
    decision did just that to his case of employment discrimination in the
    Fifth Circuit.
        The universe of people who could experience discrimination in the
    workplace on the basis of fears, myths, and stereotypes surrounding
    physical attributes, psychiatric conditions, or medical diagnoses is
    extensive, and the ADA was created with all of these people and
    circumstances in mind. Unlike an analysis for a disability retirement
    program's cash benefit, civil rights laws should be construed broadly
    to ensure equality for all Americans. This was the clear intent of
    Congress and the President in 1990, and the ADA Restoration Act seeks
    to reinstate this objective.
        Disability civil rights laws start with the recognition that
    disability is a natural part of the human experience that in no way
    should limit a person from participating fully in all aspects of
    society. Some people are born with their disabilities. Others acquire
    them through accident or injury or while placing themselves in harm's
    way in service of our country. Unlike other protected classes,
    disability is a category that any person at any time can join. A broad
    interpretation of the ADA is something that every American can benefit
    from if and when they experience disability discrimination.
        People with disabilities should have every incentive to function to
    the fullest extent of their abilities and not be punished for their
    successes nor subjected to a fishing expedition regarding the extent of
    their disabilities when they seek to challenge discrimination at work.
    Each summer, AAPD places college students with varied disabilities into
    summer internships on the Hill and in the federal Executive Branch.
    Each of our interns has worked exceptionally hard in school and life
    and many have garnered a number of impressive awards and recognitions.
    As they graduate and enter the workforce, I hope they continue to
    encounter work environments that appreciate their work ethic and focus
    on their skills and abilities rather than on their disabilities. In
    light of the Supreme Court's restrictive interpretations of the ADA,
    however, I fear, given how much they have been able to achieve, whether
    they too would be shut out of the ADA's protections should they ever
    require them.
        I think, too, of our country's returning Iraq and Afghanistan war
    veterans. I think of the estimates that as many as 60-70% of all
    wounded returning veterans may have traumatic brain injury (TBI).\25\
    Many others are returning with post-traumatic stress disorder (PTSD),
    epilepsy, depression, hearing impairments, loss of limbs, and other
    complex conditions. Once these veterans begin to return to the
    workforce in greater numbers, what trends will emerge regarding their
    integration and civil rights protections in the workplace, given that
    case law surrounding each of these disabilities is increasingly dismal?
        Moreover, my two sons, ages 9 and 14, may be genetically
    predisposed to bipolar disorder. What civil rights legacy can we
    promise them if we do not right this law?
        As members of the Education and Labor Committee, you know that our
    nation's policies under the Individuals with Disabilities Education
    Act, the Rehabilitation Act, the ADA and other laws are designed to
    promote equality of opportunity, full participation, independent living
    and economic self-sufficiency for people with disabilities. Due to a
    series of decisions limiting the scope of the ADA, probably best
    exemplified by the recent Littleton decision, people with disabilities
    are being forced to give up their civil rights protections when they
    try to improve their functioning and participate in the economic
    mainstream. Whereas Congress intended the ADA to tear down the shameful
    wall of exclusion that had barred people with a wide range of
    disabilities from achieving to their full potential, the federal courts
    have contorted the law to the point where they have created a new wall
    that is keeping disabled victims of discrimination from ever reaching
    the issue of whether they were treated fairly or discriminated against
    at work.
        The ADA Restoration Act, H.R. 3195, is a straightforward bill that
    will make it crystal clear that employment discrimination cases should
    be about how a person was treated at work and not about whether that
    person's impairments make it hard to brush one's teeth,\26\ comb one's
    hair,\27\ or have children.\28\ The bill will refocus the courts on an
    employee or applicant's qualifications and performance and away from
    intimate details about their disabilities that are irrelevant to the
    workplace and often unknown to their employer or prospective employer.
    It will restore civil rights protections for people with epilepsy,
    diabetes, cancer, depression, amputations, and a whole host of physical
    and mental disabilities who have been denied their day in court because
    of activist judicial rulings that ignore legislative history and
    Congressional intent. It will end the perverse incentive created by
    court rulings that punish people who successfully manage their
    disabilities and enter the workforce.
        I am delighted that H.R. 3195 has attracted broad bipartisan
    support in the House under the strong leadership of Congressmen Steny
    Hoyer and Jim Sensenbrenner, and I encourage this Committee to mark it
    up and send it to the House floor with strong bipartisan support. H.R.
    3195 will recreate the level playing field that Congress had in mind
    when it passed the ADA in 1990. It will send a message to the activist
    bench that they should adhere to Congressional intent and not rewrite
    laws to suit their own political or policy agenda. It will not solve
    all of the many challenges that people with disabilities continue to
    face in the workplace, but it will reestablish a solid foundation on
    which we can build policies and programs to bring more people with
    disabilities into the economic mainstream.
        Thank you again for the opportunity to provide testimony, and I
    look forward to your questions.
                                    endnotes
        \1\ 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).
        \2\ ``Improving the Participation Rate of People with Targeted
    Disabilities in the Federal Workforce,'' available at: www.eeoc.gov/
    federal/report/pwtd.html, noting that while federal government grew by
    135,000 workers between fiscal years 1997 and 2006, the number of
    federal employees with significant disabilities decreased from 28,671
    to 24,442, leaving them at 0.94 percent of the overall federal
    workforce.
        \3\ In fact, case law already exists which has found bipolar
    disorder not to be a disability under the ADA. Johnson v. North
    Carolina Dep't of Health and Human Servs., (M.D.N.C. 2006).
        \4\ 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'').
        \5\ Press release of Majority Leader Steny Hoyer, ``Hoyer
    Introduces Americans with Disabilities Restoration Act of 2007,''
    available at: http://hoyer.house.gov/Newsroom/
    index.asp?ID=955&DocumentType=Press+Release, stating: ``Let me be
    clear: This is not what Congress intended when it passed the ADA. We
    intended a broad application of this law. Simply put, the point of the
    ADA is not disability, it is the prevention of wrongful and unlawful
    discrimination;'' Emailed letter of the Honorable Dick Thornburgh,
    Former Attorney General of the United States, to the Honorable Orrin
    Hatch, requesting support of the ADA Restoration Act of 2007, available
    at: http://www.aapd.com/News/adainthe/071025dt.htm, referencing the
    current circumstances as an ``untenable situation'' and stating:
    ``Under a series of court decisions, the definition of who qualifies as
    an `individual with a disability' has become so restrictive and
    difficult to prove that millions of people we intended to protect from
    discrimination--including people with epilepsy, diabetes and cancer--
    are no longer covered by the law's protections.''
        \6\ 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.
        \7\ Littleton v. Wal-Mart Stores, Inc., No. 05-12770, 2007 WL
    1379986, at *4 (11th Cir. May 11, 2007).
        \8\ Id., at *3.
        \9\ Nassau County School Board v. Arline, 480 U.S. 273, at 283-284
    (1987).
        \10\ Sutton v. United Airlines, 527 U.S. 471 (1999); ); Murphy v.
    United Parcel Service, Inc., 527 U.S. 516 (1999); Albertson's, Inc. v.
    Kirkingburg, 527 U.S. 555 (1999).
        \11\ Sutton, 527 U.S. at 496-97 (Stevens, J., dissenting).
        \12\ Id., (listing cases).
        \13\ See, e.g., Senate Committee on Labor and Human Resources, S.
    REP. NO. 101-116 at 121 (1989), stating: ``[W]hether a person has a
    disability should be assessed without regard to the availability of
    mitigating measures, such as reasonable accommodations or auxiliary
    aids.''
        \14\ Eckhaus v. Consolidated Rail, Corp., No. Civ. 00-5748 (WGB),
    2003 WL 23205042, at *5 (D.N.J. Dec. 24, 2003).
        \15\ Id., at *9.
        \16\ See Claudia Center & Andrew J. Imparato, Redefining
    ``Disability'' Discrimination: A Proposal to Restore Civil Rights
    Protections for All Workers, 14 STAN. L. & POL'Y REV. 321 (2003).
        \17\ Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534
    U.S. 184 (2002).
        \18\ Id., at 197.
        \19\ McClure v. General Motors Corp., 75 Fed. Appx. 983, 2003 WL
    21766539 (5th Cir. 2003).
        \20\ Equal Employment Opportunity Comm'n v. Sara Lee Corp., 237
    F.3d 349 (4th Cir. 2001).
        \21\ Phillips v. Wal-Mart Stores, Inc., 78 F. Supp. 2d 1274 (S.D.
    Ala. 1999).
        \22\ Williams v. Cars Collision Center, LLC, No. 06 C 2105 (N.D.
    Ill. July 9, 2007).
        \23\ Pimental v. Dartmouth-Hitchcock Clinic, 236 F. Supp. 2d 177,
    183 (D.N.H. 2002).
        \24\ Williams v. Excel Foundry & Machine, Inc., 489 F.3d 309, 311
    (7th Cir. 2007)
        \25\ Institute of Medicine, the National Academies, Evaluating the
    HRSA Traumatic Brain Injury Program, Washington, D.C.: The National
    Academies Press, Eden, Jill and Rosemary Stevens, Editors, 2006, p. 41.
        \26\ McClure v. General Motors Corp., 75 Fed. Appx. 983, 2003 WL
    21766539 (5th Cir. 2003).
        \27\ Id.
        \28\ Pimental v. Dartmouth-Hitchcock Clinic, 236 F. Supp. 2d 177,
    183 (D.N.H. 2002).
                                     ______

        Mr. Andrews. Mr. Imparato, thank you, and I apologize for
    leaving briefly in the middle of your testimony. I have read it
    and appreciate it. I think that your personal insights further
    amplify the scholarship and work you have done here. Thank you
    very, very much.
        Mr. McClure, welcome to the committee. We are happy to have
    you here.

                STATEMENT OF CAREY MCCLURE, ELECTRICIAN

        Mr. McClure. Thank you very much.
        Mr. Chairman and members of the committee, good morning. My
    name is Carey McClure, and I am from Griffin, Georgia. I am an
    electrician and I would like to thank you for holding his
    hearing to give me a chance to tell my story.
        I have been an electrician for over 20 years. I have always
    wanted to be an electrician, and I have loved to do it. When I
    was 15 years old, I was diagnosed with facioscapulohumeral
    muscular dystrophy. As a result of my condition, the muscles in
    my face, back and upper arms are weak. I have constant pain in
    my shoulders, and I will now show you how high I can lift my
    arms in the air. That is the highest they will go.
        Like so many other people with disabilities, I found ways
    to live with my condition. For instance, I use a step-stool in
    the kitchen so I can reach the cabinets. When I shampoo my
    hair, I support one hand with the other to get my hand over my
    head, like this.
        I do much the same to comb my hair, brush my teeth. Instead
    of wearing T-shirts, I generally wear button-down shirts, which
    don't require me to raise my arms over my head. When I eat, I
    hold my head over my plate and prop my elbow on the table so
    that I can raise the fork or spoon to my mouth. The point is,
    my muscular dystrophy does not stop me from living my life.
    There is virtually nothing I can't do.
        Unfortunately, General Motors didn't feel the same way. My
    father and brother both work for General Motors, so you could
    say that General Motors practically raised me. General Motors
    supported our family, it pays well, and offers good benefits.
    For as long as I can remember, it has been a dream job for me.
        In September, 1999, I applied for an electrical position at
    the General Motors assembly plant in Arlington, Texas. The
    following month, General Motors invited me to fly out to its
    Texas assembly plant and take a written and practical exam. I
    passed both of them. In December of 1999, GM sent me a letter
    and offered me a job and asked me to take a pre-employment
    physical.
        I called back and accepted the job and scheduled an
    appointment with the GM plant medical director for January 5,
    about a week before I started my job. In the meantime, I got
    ready for the big move. I quite my electrical job at the
    roofing company, sold my house in Griffin, Georgia, withdrew my
    daughter from high school, and packed up all the things we
    needed in anticipation of the relocation.
        When I got to Texas, I went to the plant medical director's
    office for my physical exam. The physical went fine until the
    doctor asked me to lift my arms above my head, which I could
    not do. The doctor asked me hypothetically how I could reach
    electrical work above my head. I told him I would get a ladder.
    He asked, what if a ladder would not reach high enough? I told
    him I would get a taller ladder. [Laughter.]
        For over 20 years, I have been an electrician. For over 20
    years, I have been working on things above my head without a
    problem. Sometimes I throw my arms above my head and lock my
    elbows. Most of the time there is something that I can prop my
    arm against so I can reach it just like if I am brushing my
    teeth. Other times, all it takes is a step-stool or to have a
    ladder or a hydraulic lift as other electricians use. When I
    toured the GM plant, I saw people using hydraulic lifts just
    like I used on every other job I had.
        But this doctor wouldn't hear it. He didn't think I could
    do the job that I have been doing my entire life. He
    recommended that GM revoke my job offer, and that is exactly
    what they did. An assistant gave me the bad news, and I just
    stood there stunned. I had just quit the previous job, sold my
    house, packed my bags, relocated my family from Georgia to
    Texas for the dream job I had been trying to get my whole
    professional life. General Motors had just taken my dream job
    away from me.
        I didn't know much about the ADA, but I knew that I had a
    disability and GM took the job away from me because of my
    disability, not because I couldn't do the work of an
    electrician. I can do the job. That is the bottom line. So I
    found a lawyer and we filed a lawsuit. During my lawsuit,
    General Motors asked me all sorts of personal questions like
    how I comb my hair, how I brush my teeth. They asked me how I
    play with my grandchildren. They asked me how I bathe and how I
    clean my house. They even asked me how I would have
    intercourse.
        They asked me things that they didn't need to know, that
    did not have anything to do with work at the GM plant. Even
    though GM revoked my job offer for my disability, GM lawyers
    started arguing with the court that I did not have a disability
    at all. Well, you can't have it both ways. Am I disabled or
    not? If I am, then the ADA should have been there to protect
    me. If I am not, then I should be working with my father and
    brother both at General Motors right now.
        Unfortunately, the courts agreed with GM. The trial court
    said to me, ``The ability to overcome the obstacles that life
    has placed in my path is admirable,'' but that in light of my
    abilities, I was no longer disabled because I had adapted so
    well to living with muscular dystrophy, and made myself a
    productive member of the workforce for over 20 years, the court
    said I wasn't protected by the ADA. That doesn't make any sense
    to me.
        As I told the court who heard my case, if someone who was
    suffering from an undisputable muscular dystrophy is not an
    individual with a disability under the ADA, then who is? The
    court told me that they were just interpreting the ADA like the
    Supreme Court told them to, and that my problem was with the
    Supreme Court, not them. Well, you can do something about the
    Supreme Court's interpretation of the ADA. For the sake of
    people with disabilities like me who want to work, but are
    discriminated against, I hope you will.
        Thank you very much for giving me the opportunity to speak.
        [The statement of Mr. McClure follows:]

              Prepared Statement of Carey L. McClure, Electrician

        Mr. Chairman and members of the Committee: Good Morning. My name is
    Carey McClure, and I am an electrician from Williamson, Georgia. I'd
    like to thank you for holding this hearing today, and for giving me a
    chance to tell my story.
        I have been an electrician for over twenty years. I earned a
    technical certificate from the United Electronics Institute after high
    school and then worked my way up from apprentice electrician to
    journeyman electrician. I've always wanted to be an electrician, and I
    love what I do. It is my hobby, and it is my fun.
        When I was fifteen years old, I was diagnosed with
    facioscapulohumeral muscular dystrophy. ``Muscular dystrophy'' means
    progressive muscle degeneration. ``Facioscapulohumeral'' refers to the
    parts of my body that are most seriously affected: the muscles in my
    face, shoulder blades, and upper arms. There are nine types of muscular
    dystrophy, and this is mine. As a result of my condition, the muscles
    in my face, back, and upper arms are weak. I'm unable to lift my arms
    above shoulder-level, and I have constant pain in my shoulders.
        But like so many other people with disabilities, I've found ways to
    live with my condition. For instance, I have a stepstool in my kitchen
    that I use to reach my cabinets. When I shampoo my hair, I support one
    hand with the other to get it over my head, or I bend forward so my
    hands can reach my head. I take showers because it's easier for me to
    bathe all of my body parts standing rather than sitting down. When I
    comb my hair or brush my teeth, I prop up my elbow with the other hand.
    Instead of wearing T-shirts, I generally wear button-down shirts, which
    don't require me to raise my arms over my head. To put on a T-shirt, I
    bend at the waist and pull the back of the shirt over my head. When I
    eat, I hold my head over my plate and prop my elbows on the table so
    that I can raise my fork or spoon to my mouth. And while I love my
    grandchildren, and play actively with them, I don't take care of them
    alone for fear I might suddenly need to lift them above chest-height to
    get them out of harm's way.
        The point is, my muscular dystrophy doesn't stop me from living my
    life. There is virtually nothing I can't do. Unfortunately, General
    Motors (GM) didn't feel the same way.
        My father and brother both work for GM, so I guess you could say GM
    practically raised me. GM supported our family, and it pays really well
    and offers good benefits. It's a great place to work, and for as long
    as I can remember, it's been my ``dream job.''
        I applied for an apprenticeship with GM three times, but those
    positions were put on hold and never filled. I applied for a journeyman
    electrician position another time, but there were 400 applicants for
    seven or eight positions and so I didn't get that job either.
        In September 1999, I gave it another shot and responded to a
    newspaper ad seeking applicants for electrician positions at the GM
    assembly plant in Arlington, Texas. This time was different. In
    November 1999, GM invited me to fly out to its Texas assembly plant to
    take a written exam and a practical, ``hands-on'' exam. I passed both
    of them. In December 1999, GM sent me a letter offering me the job and
    asked me to take a pre-employment physical. I called back and accepted
    the job, and scheduled an appointment with GM's plant medical director
    for January 5th--about a week before my start date.
        In the meantime, I got ready for the big move. I quit my
    electrician job with a roofing company; sold my house in Griffin,
    Georgia; withdrew my daughter from her high school; and packed up all
    of our things in anticipation of relocating.
        When I got to Texas, I went on a tour of my new plant. From the
    tour and the job description in the ad I answered, I knew that the job
    I'd be filling would be easier than the one I had left in Georgia, and
    would also pay better wages. At my prior job with the roofing company,
    I was doing electrical maintenance on a production line. That meant
    that I performed two completely different types of jobs: I was both an
    electrician and a mechanic. If there was a 400-pound motor sitting
    there that needed replacing, I'd have to disconnect the wires, unbolt
    the motor, move the motor, put the new motor in, then wire it back up.
    The position I'd accepted at GM was much more specialized. There, I
    would be doing just the job of an electrician--I'd only have to
    disconnect the wires and then let the GM mechanics take care of the
    rest.
        There was a doctor's office in the plant where I went for my
    physical exam. It was a normal physical exam like those I'd taken and
    passed for all of my other jobs. The physical went fine until the
    doctor asked me to lift my arms above my head, which I could not do.
        The doctor asked me hypothetically how I would reach electrical
    work above my head. I told him I'd get a ladder. He asked what I'd do
    if the work was higher than the ladder. I told him I'd get a taller
    ladder.
        For over twenty years, I've been an electrician. For over twenty
    years, I've worked on things above my head without a problem. I've run
    pipe all the way up against the ceiling. I've worked on lights all the
    way up against the ceiling. Sometimes I throw my arms up in the air and
    lock my elbows. Most of the time, there's an object next to me that I
    can prop my arms on, just like I do when I'm brushing my teeth. Other
    times, all it takes is a step-stool like I have for my cabinets, or a
    ladder or a hydraulic lift like many electricians use. When I toured
    the GM plant, I saw people using those hydraulic lifts just like at
    every other job I'd had.
        But this doctor wouldn't hear of it. He didn't think I could do a
    job that I'd been doing my entire life, even though he later admitted
    that he didn't even know what the functions of my electrician job were.
    Regardless, he recommended that GM revoke my job offer, and that's
    exactly what GM did. An assistant gave me the bad news, and I just
    stood there stunned, in the middle of the doctor's office lobby, and I
    didn't know what had hit me. I had just quit my previous job, had sold
    my house, packed my bags, and relocated my family from Georgia to Texas
    for the dream job I'd been trying for my whole professional life. GM
    had just taken my dream job away from me.
        I didn't know much about the Americans with Disabilities Act, but I
    knew that I had a disability, and that GM took my job away because of
    my disability--not because I couldn't work as an electrician. I can do
    that job--that's the bottom line. So I found a lawyer, and we filed a
    lawsuit.
        During my lawsuit, GM's attorney asked me all sorts of personal
    questions like how I comb my hair and how I brush my teeth. They asked
    me how I play with my grandchildren. They asked me how I bathe, and how
    I clean my house. They asked me how I drive a car. They even asked me
    how I have intercourse. They asked me things they don't need to know--
    things that don't have anything to do with my ability to work at GM.
        Even though GM revoked my offer because of my disability, GM's
    lawyers started arguing to the federal courts that I didn't have a
    disability at all. Well, you can't have it both ways--am I disabled or
    not? If I am, then the ADA should have been there to protect me. If I'm
    not, then I should be working with my father and my brother at GM right
    now.
        Unfortunately, the courts agreed with GM. The trial court said that
    my ``ability to overcome the obstacles that life has placed in my path
    is admirable,'' but that in light of my ability, I was no longer
    disabled. Basically, the court punished me for making myself a
    productive member of the workforce for over twenty years. Because I'd
    adapted so well to living with muscular dystrophy, the court said I
    wasn't protected by the ADA. That doesn't make any sense to me.
        I lost my case. I lost my house. And I lost two jobs--the
    electrician job with the roofing company that I left, and the
    electrician job that GM gave and then took away from me. But I have no
    ill will towards GM. I still buy vehicles from them, and I'd work there
    today if I could. That's all I've ever wanted to do.
        I found another job after GM revoked its offer, but it took me six
    months to find one that paid the same as my old job with the roofing
    company, and it still didn't pay as high as GM. In my first evaluation
    at that job, my boss ranked me excellent in five out of seven
    categories and next highest on the other two.
        I enjoy being an electrician, and I'm good at it. I wish that GM
    had given me the chance to prove that I can do the job, and I wish that
    the ADA had been there to protect me when GM didn't give me that
    chance. Unfortunately, there are many people with disabilities like me
    who are not getting the protection they deserve because the courts are
    telling them that they're not ``disabled.''
        As I told the courts who heard my case, ``if one who suffers from
    undisputed muscular dystrophy is not an individual with a disability
    under the ADA,'' then who is? The courts told me that they were just
    interpreting the ADA like the Supreme Court told them to, and that my
    problem was with the Supreme Court--not them. You can do something
    about the Supreme Court's interpretation of the ADA. For the sake of
    people with disabilities like me who want to work but are discriminated
    against, I hope you will.
        Thank you for giving me the opportunity to speak before you today.
                                     ______

        Mr. Andrews. Mr. McClure, thank you very much for coming
    and telling us meaningful stories about your life that will
    help us make the decisions we need to do. Thank you very, very
    much. We appreciate it.
        Mr. Fram, welcome. I understand you came here as a page,
    and have extensive Washington history. Welcome back.

       STATEMENT OF DAVID K. FRAM, DIRECTOR, ADA & EEO SERVICES,
                   NATIONAL EMPLOYMENT LAW INSTITUTE

        Mr. Fram. Thank you. My name is David Fram, and I am the
    director of ADA training for the National Employment Law
    Institute. I have provided ADA training to most federal
    agencies, including the House, and most Fortune 500 companies.
    My book, Resolving ADA Workplace Questions, which is now in its
    23rd edition, analyzes the Supreme Court cases and all of the
    federal Courts of Appeals cases on the issues. Prior to my work
    with the Institute, I was a policy attorney in the ADA Division
    of the EEOC.
        It is because of my work on both sides of the issue that I
    have been asked to address some of my concerns about the ADA
    Restoration Act. It is important to first look at what the law
    currently does. The ADA does two things. It says you can't
    discriminate against somebody because of a disability, and it
    says you have to provide a reasonable accommodation to an
    otherwise qualified individual with a disability. And of
    course, it defines ``disability'' as being an impairment that
    substantially limits a major life activity.
        Courts have very broadly over the years determined what is
    an impairment. Any disorder is an impairment, so the flu, a
    broken finger, a scar could be an impairment. The reason these
    aren't disabilities is because they don't substantially limit a
    major life activity. ``Substantially limits'' looks at
    duration, looks at seriousness.
        If somebody does have a disability, the next question, of
    course, is whether that person is qualified. Do they have the
    background and can they do the essential functions of the job?
        Now, let us look at the three major changes proposed by the
    Restoration Act. First, the act would change the definition of
    ``disability'' to cover any impairment, removing the
    ``substantial limitation'' requirement. So there would be no
    degree of seriousness or duration. So a chipped tooth, the flu,
    a broken finger would automatically be disabilities. It also
    means that alopecia, having a hair impairment like mine, would
    be an automatic disability. And it is just not correct to say
    that this restores the ADA to what it was.
        The statute on its face, the Rehab Act on which it was
    based, the regulations from the EEOC--all say there has to be a
    substantial limitation of a major life activity. In all of my
    years at the EEOC and with the Institute, I have never heard
    anyone argue that the ADA should cover all impairments.
        Question--Would it be good policy to change the law in this
    sweeping way? Now, I understand that proponents want to,
    validly want to change the law so courts focus on whether there
    has been discrimination, instead of focusing on whether there
    is a disability. The problem is that the ADA is not like the
    typical discrimination law. It requires reasonable
    accommodation. So the proposed changes would potentially mean
    that an employer has to give an accommodation to somebody like
    me so I can get a hair transplant, and that can't be what
    Congress intended.
        Also, since employers have limited resources, it means that
    somebody with the flu could be competing with somebody who has
    lung cancer for the modified schedule. And that couldn't be
    what Congress intended. Remember, the ADA also prohibits
    disability-related questions of employees unless they are
    specifically about the job. So if disability equals impairment,
    that makes it flatly illegal for an employer, for a supervisor
    to ask an employee, ``oh, do you have a cold or how did you
    break your leg.'' And that can't be what Congress intended.
        An even more basic question is whether the ADA is intended
    to give someone with a sprained ankle the same protection as
    somebody who has paraplegia. It is intended to give somebody
    with the flu, put that person in the same category with
    somebody with breast cancer? In my opinion, that can't be what
    Congress intended. So it seems to me the definition of
    ``disability'' should not be changed, but it is also clear that
    courts have excluded individuals who Congress did want to
    protect under the law.
        Now, a fair reading of the legislative history supports the
    proponents' view for the second proposed change, which is that
    the law should be read expansively and that the seriousness of
    a person's condition should be analyzed as if that person were
    not taking medication. Congress wanted to do this to prevent
    people from being thrown out of court because they took steps
    to alleviate their conditions.
        The Supreme Court decided, of course, not to follow the
    legislative history. In Sutton v. United Airlines, they
    considered whether the vision impairment of the plaintiffs who
    wore glasses should be analyzed with or without their glasses,
    and decided instead of just carving out an exception for
    glasses, they said, no, we are going to look at everyone with
    their mitigating measures. And of course, after Sutton, lots of
    plaintiffs, as you see in the written materials I have
    submitted, were thrown out of court because they took
    medication. Is that what Congress intended?
        The third change by the act would put the burden of proof
    on employers to show that an individual is not qualified. Now,
    in the interest of time, I won't get into that right now except
    to say that this is simply inconsistent with every other
    employment discrimination law.
        So it boils down to this. The legislation would restore the
    ADA in that an individual's condition should be analyzed
    without medication or mitigating measures, but to change the
    definition of ``disability'' to cover, literally cover everyone
    in America wouldn't be restoring the ADA. It would certainly
    lead to a deluge of unintended consequences.
        Thank you.
        [The statement of Mr. Fram follows:]

        Prepared Statement of David K. Fram, Esq., Director, ADA & EEO
                  Services, National Employment Law Institute

        It is a pleasure to be here as you consider changes to the
    Americans with Disabilities Act, the most important piece of civil
    rights legislation of our generation.
        It is especially great to be back in this place where I formed
    wonderful memories of my teenage years--as both a Congressional Page,
    and as an intern for Senator Paul Sarbanes. And what an honor it is to
    be in front of this Committee, with representatives from my hometown,
    Baltimore (Congressman Sarbanes), and my current home, Long Island
    (Congressman Bishop).
        My name is David Fram, and I'm the Director of ADA and EEO Services
    for the National Employment Law Institute. In this role, I train a wide
    range of groups on how to comply with and how to enforce the ADA. These
    groups include virtually every federal agency (including the U.S. House
    of Representatives and the U.S. Senate), most Fortune 500 companies,
    colleges and universities, non-profits, unions, and plaintiffs'
    organizations. I have also written a book, Resolving ADA Workplace
    Questions, now in its 23rd edition, which analyzes every major ADA case
    from the Supreme Court and the federal Courts of Appeals, as well as
    any new positions from the Equal Employment Opportunity Commission.
        Prior to my work with the Institute, I was a Policy Attorney at the
    EEOC from 1991 through 1996. In that job, I was part of the ADA
    Division, working on EEOC documents interpreting and enforcing the ADA
    and the Rehabilitation Act.
        A number of employers and employer-oriented organizations expressed
    concerns to me about the changes proposed by the ADA Restoration Act.
    Because of my experience on both sides of these issues, these groups
    have encouraged me to testify concerning my personal concerns on the
    proposed legislation. I cannot in all candor, however, tell you that
    these groups will necessarily agree with everything I'm about to say.
        Before anyone can intelligently discuss those changes, it's
    critical to briefly review the most important provisions of the ADA as
    it currently exists.
        The employment provisions of the ADA accomplish two major goals.
    First, the law says that an employer cannot discriminate against a
    qualified individual with a disability in, among other things, hiring,
    firing, employment terms and conditions, and insurance coverage.
    Second, the law says that these non-discrimination provisions require
    an employer to provide ``reasonable accommodations'' to otherwise
    qualified individuals, so that these individuals can perform the
    essential functions of the job.\1\
        In addition to these basic provisions, the ADA also prohibits
    employers from asking any disability-related questions or requiring
    medical examinations of applicants, and allows employers to ask these
    questions and require these exams of employees only when these are
    considered ``job-related and consistent with business necessity.'' \2\
        As you have heard from other witnesses, the law specifically
    defines someone with a ``disability'' as an individual who currently
    has, has a ``record of,'' or is ``regarded as'' having an
    ``impairment'' that ``substantially limits'' a ``major life activity.''
    \3\ This language was specifically taken from the Rehabilitation Act of
    1973.\4\ Courts have interpreted broadly what is considered an
    impairment--any physical or mental disorder is an impairment.\5\ So,
    this would include a chipped tooth, the flu, or a broken finger. The
    reason these conditions would not be considered disabilities is that
    they do not ``substantially limit'' a major life activity. In
    determining whether an impairment ``substantially limits'' a major life
    activity, courts analyze the individual's abilities compared to those
    of the average person.\6\ Ever since the ADA came into force, one
    important question has been whether to analyze the individual's
    condition in a medicated or mitigated state (if s/he medicates or
    mitigates), or whether to analyze what the condition would be like
    without medication or mitigation. On its face, the statutory language
    arguably suggested that an individual should be analyzed with
    medications or mitigating measures. However, based on the ADA's
    legislative history, the EEOC instructed employers to look at what the
    individual's condition would be like without medication or mitigation,
    and many federal courts followed this approach.\7\
        Indeed, shortly before the Supreme Court weighed in on the issue,
    the Fifth Circuit Court of Appeals noted the ``most reasonable reading
    of the ADA'' was to consider mitigating measures in determining when an
    individual had a disability.\8\ But, the court also pointed out that
    the EEOC's Guidelines, the legislative history and the majority of
    other federal courts provided that an individual's mitigating measures
    should not be considered in determining whether an individual had a
    disability.\9\ The Fifth Circuit adopted a middle of the road approach
    recognizing that while Congress intended that courts should consider
    people in their unmitigated state in deciding whether an individual was
    disabled, it didn't make sense for courts not to consider some
    mitigating measures in situations where a person's condition has been
    permanently corrected or ameliorated. In fact, the court held that
    serious conditions similar to those mentioned in the legislative
    history and EEOC guidelines, such as diabetes, epilepsy, hearing
    impairments, etc. would be considered in their unmitigated state.\10\
    The Supreme Court, however, held the opposite when it decided Sutton v.
    United Airlines,\11\ which I'll talk about shortly.
        Once the individual is determined to have a covered disability, the
    next question is whether the individual is ``qualified,'' which means
    that the individual satisfies the job's background requirements and
    that s/he can perform the job's ``essential functions,'' with a
    reasonable accommodation if needed.\12\ As with other discrimination
    laws, courts use the McDonnell Douglas framework,\13\ requiring the
    individual to show as part of his prima facie case that s/he has a
    disability and that s/he is qualified. In this regard, the courts have
    put the burden of proof on the employer to demonstrate which functions
    are essential, and then put the burden on the individual to show that
    s/he can do those essential functions.\14\
        I would like to address the three major changes proposed by the ADA
    Restoration Act: (1) changing the definition of disability to cover all
    impairments, regardless of the seriousness of the impairment; (2)
    reversing the Supreme Court cases instructing courts to analyze
    conditions as controlled with medication or mitigating measures if the
    individual uses such measures; and (3) changing the burden of proof to
    require an employer to show that an individual is not qualified.
    1. Changing the Definition of Disability
        The ``ADA Restoration Act'' would change the definition of
    disability to cover any physical or mental impairment, and to remove
    the requirement that the impairment ``substantially limit'' a major
    life activity. This, therefore, does away with the notion that the
    impairment has to have some degree of seriousness and some degree of
    duration. As a result, a chipped tooth, the flu, and a broken finger
    would automatically be covered as disabilities. It also means that
    alopecia (having a hair impairment, like mine) would be a covered
    disability.
        It is simply incorrect to say that this restores the ADA to what it
    once was. The statute, on its face, states that the impairment has to
    substantially limit a major life activity.\15\ The Rehabilitation Act,
    on which the ADA was based, states that the impairment has to
    substantially limit a major life activity.\16\ The EEOC's regulations
    (and the Appendix to the regulations, and the EEOC's own Compliance
    Manual instructions on the definition of disability), all state that
    the impairment must substantially limit a major life activity.\17\ In
    fact, in my years at the EEOC and in all of my years with the
    Institute, I've never heard anyone say that the ADA was meant to cover
    people with any impairment. So, it is not accurate to say that this is
    a ``restoration'' act. Rather, this would be a new law that is vastly
    broader than the ADA.
        Would it be good policy to change the law in such a sweeping way? I
    understand that the proponents of the bill want to change the ADA so
    that the issue becomes whether discrimination has occurred, rather than
    focusing on whether an individual's condition is a disability.\18\ The
    problem with this view is that the ADA is not like the traditional
    discrimination laws. The ADA goes several steps further. As we've
    talked about, it requires reasonable accommodation for the individual
    with a disability. In fact, as the Supreme Court has noted, the ADA
    requires employers to give preferential treatment to individuals with
    disabilities. If the proposed changes were enacted, it would mean that
    an employer would have to provide reasonable accommodation for the
    person with a chipped tooth or the flu. An employer would have to
    provide reasonable accommodation for someone with a sprained ankle. An
    employer would have to provide reasonable accommodation for someone who
    is bald who wants time off to get a hair transplant. This couldn't be
    what Congress intended.
        In addition, rewriting the definition of ``disability'' would have
    detrimental effects in the workplace. Because employers have limited
    resources, it means that the person with a sprained ankle could be
    competing with the veteran who has no legs for the accessible parking
    space. It means that the person with the flu could be competing with
    someone with AIDS for the modified schedule. This couldn't be what
    Congress intended.
        The ADA also covers employer-provided health insurance. What this
    means is that disability-based distinctions in health insurance plans
    might be illegal.\19\ If the definition of disability were changed to
    cover all impairments, employers could be acting illegally if they had
    different medical coverage for dental conditions than for other types
    of medical conditions. Employers would be acting at their peril if they
    denied medications or medical treatment for baldness, because that
    would be a disability-based distinction. This couldn't be what Congress
    intended.
        As I also have mentioned, the ADA prohibits pre-offer questions
    likely to disclose an applicant's disability, and it prohibits those
    questions of employees unless they are specifically related to the job.
    But if the definition of disability is changed to cover all
    impairments, that would make it flatly illegal to ask applicants about
    any impairments, and to ask employees about any impairments unless
    specifically related to the job. This means that if an employee comes
    to work with a broken leg and the supervisor says, ``How did you break
    your leg?'' the supervisor has engaged in illegal conduct under the
    ADA. It also means that if an employee comes to work sneezing and
    coughing, and his supervisor says, ``Do you have a cold?'' the
    supervisor has engaged in illegal conduct under the ADA. This couldn't
    be what Congress intended.
        An even more basic question is whether the ADA is intended to give
    someone with a sprained ankle the same protections as someone who has
    paraplegia? Is the ADA intended to put someone with the flu in the same
    category as someone who has breast cancer and is undergoing
    chemotherapy and radiation? Is the ADA intended to give someone with a
    toothache the same rights as someone who has insulin-dependent
    diabetes? This couldn't be what Congress intended.
    2. Reversing the Supreme Court Cases on Mitigating Measures
        To me, it is clear that the ADA was never intended to cover every
    individual with any impairment. But, it also is my view that the
    effects of the Sutton decision have excluded individuals whom Congress
    wanted to protect under the law. For example, in one recent Court of
    Appeals case, a court said that a woman with breast cancer, who had
    undergone chemotherapy and radiation, had suffered severe nausea, and
    had been unable to care for herself or to work, was not considered
    covered under the law.\20\ In other cases, individuals with insulin-
    dependent diabetes and epilepsy were not considered covered under the
    law even though the legislative history identified those conditions as
    impairments which were likely to reach the level of disabilities.
        A fair reading of the ADA's legislative history supports the notion
    that the law was to be read expansively and that individuals were to be
    analyzed in their unmedicated (i.e., unmitigated) state.\21\ This
    approach was grounded in the idea that Congress did not want to exclude
    people because they took steps to alleviate their conditions. It also
    was grounded in the idea that otherwise, individuals would be stuck in
    a Catch 22--they might only have disabilities if they did not take
    their medications, but they might not be qualified if they did not take
    their medications. As I said earlier, the EEOC and most federal courts
    followed the legislative history.
        The Supreme Court, however, decided not to follow the legislative
    history. In Sutton v. United Airlines,\22\ the Supreme Court considered
    whether the plaintiffs, who wore glasses, should be analyzed with or
    without their glasses in determining whether their vision impairments
    were substantially limiting. The Court concluded that individuals
    should be analyzed with mitigating measures if they used these
    measures. The Supreme Court arguably could have carved out an exception
    for glasses (since glasses are so common in our society, and an
    individual's condition is analyzed as compared to the average person).
    But they chose instead to say that all individuals, regardless of
    condition, should be analyzed as mitigated.\23\ After Sutton, many
    plaintiffs have not been able to proceed with a disability
    discrimination claim because they took medication (even for a serious
    condition) or used prostheses.\24\ This result appears to be
    inconsistent with legislative intent expressed in legislative history.
    3. Changing the Burden of Proof
        The ADA Restoration Act also changes the burden of proof in ADA
    cases, by removing the plaintiff's responsibility to show that s/he is
    qualified for the job. Instead, the Act puts the burden of proof on the
    employer to show that the individual is not qualified. This is simply
    not consistent with other employment discrimination laws, which use the
    McDonnell-Douglas standard, discussed earlier. In addition, from a
    practical perspective, it makes sense to require the plaintiff to prove
    that s/he is qualified, since that individual has the critical evidence
    on this issue. Moreover, the burden of proof has simply not been a
    problem under the ADA.
        Therefore, to change this burden would make the ADA burden of proof
    scheme different from the other EEO laws, and would not make sense from
    an evidentiary or practical perspective.
    Conclusion
        It boils down to this: the legislation would likely only
    ``restore'' the ADA in the sense that it would require courts to
    analyze an individual's disability status without regard to medication
    or mitigating measures. But changing the definition of disability to
    cover everyone in America would not be ``restoring'' the ADA. In fact,
    it would dilute the importance of the law for people who have serious
    conditions, and could lead to a deluge of unintended consequences.
                                    endnotes
        \1\ 42 U.S.C. Sec. Sec.  12101-12213.
        \2\ 42 U.S.C. Sec. Sec.  12112(d).
        \3\ 42 U.S.C. Sec.  12101(2).
        \4\ 29 U.S.C. Sec.  705(20)(B).
        \5\ 29 C.F.R. Sec.  1630.2(h). For example, in Agnew v. Heat
    Treating Services of America, 2005 U.S. App. LEXIS 27884 (6th Cir.
    2005)(unpublished), the court noted that a bad back would be an
    impairment. Similarly, in Benoit v. Technical Manufacturing Corp., 331
    F.3d 166 (1st Cir. 2003), the court noted that back and knee strains,
    caused either by the employee's improper lifting techniques or by his
    weight gain, were ``impairments.'' In Arrieta-Colon v. Wal-Mart, Inc.,
    2006 U.S. App. LEXIS 826 (1st Cir. 2006), the court did not disturb the
    jury's finding that the plaintiff's erectile dysfunction, which
    required a penile implant (having the side effect of a ``constant semi-
    erection''), was an impairment. Likewise, in Sinclair Williams v.
    Stark, 2001 U.S. App. LEXIS 5367 (6th Cir. 2001)(unpublished), the
    court noted that the plaintiff's headaches were an impairment. In Cella
    v. Villanova University, 2004 U.S. App. LEXIS 21740 (3d Cir.
    2004)(unpublished), the court held that the plaintiff's ``tennis
    elbow'' was an impairment under the ADA.
        \6\ 29 C.F.R. Sec.  1630.2(j). See Davidson v. Midelfort Clinic,
    Ltd., 133 F.3d 499 (7th Cir. 1998)(adopting EEOC's definition of
    ``substantially limits''). Courts compare the individual's condition to
    the average person in order to determine whether the condition is
    serious enough. For example, in Collins v. Prudential Investment and
    Retirement Services, 2005 U.S. App. LEXIS 148 (3d Cir.
    2005)(unpublished), the court found that the employee's ADHD did not
    ``substantially limit'' her ability to think, learn, concentrate, and
    remember, where she sometimes became distracted from her tasks, had
    trouble placing tasks in priority order, and had trouble showing up for
    events on time. The court noted that ``many people who are not
    suffering from ADHD/ADD must regularly cope with'' such limitations. In
    Bowen v. Income Producing Management of Oklahoma, Inc., 202 F.3d 1282
    (10th Cir. 2000), the plaintiff, who suffered a brain injury, claimed
    that he was substantially limited in learning in light of his memory
    loss, inability to concentrate and difficulty performing simple math.
    The court found that he was not ``substantially limited'' because he
    had ``greater skills and abilities than the average person in
    general.'' Similarly, in Wong v. Regents of the University of
    California, 410 F.3d 1052 (9th Cir. 2005), the court held that the
    plaintiff was not substantially limited in ``learning'' or ``reading''
    when compared to the general population. Concerning ``learning,'' the
    court noted that the plaintiff had completed the first two years of
    medical school with good grades and without any special accommodations.
    Concerning reading, the plaintiff claimed that he read very slowly and
    did much better when he did not have time constraints. The court stated
    that the plaintiff's evidence that he was limited (compared to his own
    reading abilities without time limits) was not the relevant issue.
    Instead, the court held that he had not presented evidence as to the
    ``appropriate standard''--comparing himself to ``what is important in
    the daily life of most people,'' such as his ability to read
    newspapers, government forms, and street signs.
        On the other hand, many plaintiffs have shown that, compared to the
    average person, their impairments were serious enough to be
    substantially limiting. For example, in Jenkins v. Cleco Power LLC, 487
    F.3d 309 (5th Cir. 2007), the court held that where the employee could,
    with intermittent breaks, sit only for up to three hours per day, he
    was substantially limited in sitting. In Heiko v. Colombo Savings Bank,
    F.S.B., 434 F.3d 249 (4th Cir. 2006), the court held that the
    plaintiff, who had kidney failure, was ``substantially limited'' in
    eliminating waste because he ``was required to spend at least four
    hours, three days a week undergoing dialysis in order to remove waste
    from his body.'' In Battle v. UPS, Inc., 438 F.3d 856 (8th Cir. 2006),
    the court held that the plaintiff may have been substantially limited
    in performing cognitive functions where there was testimony that he
    ``thinks and concentrates at a laborious rate,'' ``has to spend
    significant extra time working on projects,'' ``cannot think and
    concentrate about matters unrelated to work,'' and, therefore, cannot
    make ``household or financial decisions, or discipline[] his children,
    because he does not have the ability to deal with extraneous or
    unexpected issues, conflicts, or demands outside of work.'' In EEOC v.
    Sears, 417 F.3d 789 (7th Cir. 2005), the court held that where the
    plaintiff could not ``walk the equivalent of one city block without her
    right leg and feet becoming numb,'' she could be substantially limited
    in walking.
        \7\ Many courts stated that the effects of medication or prosthetic
    devices were irrelevant in determining whether someone's impairment
    substantially limits a major life activity. See, e.g., Arnold v. United
    Parcel Service, Inc., 135 F.3d 1089 (1st Cir. 1998)(diabetes); Taylor
    v. Phoenixville School District, 174 F.3d 142 (3rd Cir. 1999)(mental
    disability)(decision vacated); Washington v. HCA Health Services of
    Texas, 152 F.3d 464 (5th Cir. 1998)(Adult Still Disease); Baert v.
    Euclid Beverage, Ltd., 149 F.3d 626 (7th Cir. 1998)(diabetes); Doane v.
    City of Omaha, 115 F.3d 624 (8th Cir. 1997), cert. denied, 118 S. Ct.
    693 (1998)(monocular vision); Holihan v. Lucky Stores, Inc., 87 F.3d
    362 (9th Cir. 1996), cert. denied, 117 S. Ct. 1349 (1997); Harris v.
    H&W Contracting Co., 102 F.3d 516 (11th Cir. 1996)(Graves disease).
        \8\ Washington v. HCA Health Services of Texas, Inc., 152 F.3d 464,
    469 (5th Cir. 1998) (emphasis in original).
        \9\ Id. at 469-471.
        \10\ Id. at 470-71.
        \11\ 527 U.S. 471, 119 S.Ct. 2139 (1999).
        \12\ 42 U.S.C. 12111(8); 29 C.F.R. Sec.  1630.2(m).
        \13\ McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
        \14\ For example, in Bates v. UPS, Inc., 2007 U.S. App. LEXIS 29870
    (9th Cir. 2007), the court noted that the employer must ``put forth
    evidence establishing'' which functions are essential (because this
    information ``lies uniquely with the employer''), and the employee
    ``bears the ultimate burden of persuading the fact finder that he can
    perform the job's essential functions.'' Similarly, in Fenney v.
    Dakota, Minnesota & Railroad Co., 327 F.3d 707 (8th Cir. 2003), the
    court noted that although ``the plaintiff retains the ultimate burden
    of proving that he is a qualified individual,'' the employer must show
    which functions are essential (if that issue is disputed). In EEOC v.
    Wal-Mart Stores, Inc., 477 F.3d 561 (8th Cir. 2007), the court noted
    that the employer has the burden of proving which functions are
    essential when it disputes the plaintiff's claim that he is qualified.
    However, as noted above, the individual bears the burden of proving
    that s/he can perform the essential job functions. For example, in
    Hammel v. Eau Galle Cheese Factory, 407 F.3d 852 (7th Cir. 2005), the
    court held that the plaintiff has the burden of demonstrating that he
    is capable of performing the essential functions of the job. In this
    case, the court held that the plaintiff could not make this showing,
    where his performance had been deficient in many respects. Similarly,
    in Breitfelder v. Leis, 2005 U.S. App. LEXIS 21821 (6th Cir.
    2005)(unpublished), the court held that the plaintiff had the ``burden
    of showing he could perform the essential tasks'' of the job.
        \15\ 42 U.S.C. Sec.  12101(2).
        \16\ 29 U.S.C. Sec.  705(20)(B).
        \17\ 29 C.F.R. Sec.  1630.2(g). Appendix to Regulations, Compliance
    Manual Section 902: Definition of the Term Disability, March, 1995.
        \18\ See Testimony of Chai Feldblum before the Subcommittee on the
    Constitution, Civil Rights, and Civil Liberties of the Committee on the
    Judiciary, United States House of Representatives (10/4/07) at p. 17.
        \19\ See EEOC Interim Enforcement Guidance on the Application of
    the Americans with Disabilities Act of 1990 to Disability-based
    Distinctions in Employer Provided Health Insurance June, 1993.
        \20\ Garrett v. University of Alabama, 2007 U.S. App. LEXIS 26476
    (11th Cir. 2007).
        \21\ H.R. REP. NO. 101-485, pt. 2, at 52 (1990); see also H.R. REP.
    NO. 101-485, pt. 3, at 28-29 (1990); S. REP. NO. 101-116 at 23 (1989).
        \22\ 527 U.S. 471, 119 S.Ct. 2139 (1999).
        \23\ The Sutton case was decided along with Murphy v. United Parcel
    Service, 527 U.S. 516, 119 S.Ct. 2133 (1999) and Albertsons, Inc. v.
    Kirkingburg, 527 U.S. 555, 119 S.Ct. 2162 (1999). These three cases are
    commonly referred to as the Sutton triology, and stand for the
    proposition that individuals should be analyzed as they are, not what
    they might or could be. For example, in Albertson's, a monocular vision
    case, the Supreme Court stated that ``people with monocular vision
    `ordinarily' will meet the Act's definition of disability.'' However,
    the Court noted that in determining whether an individual's monocular
    vision is ``substantially limiting,'' it will analyze the individual's
    ability with any behavioral modifications that the individual has
    undertaken to compensate for his impairment.
        \24\ For example, in Darwin v. Nicholson, 2007 U.S. App. LEXIS 8153
    (11th Cir. 2007)(unpublished), the court held that the plaintiff's
    hearing impairment was not a disability because, with his hearing aids,
    he was not substantially limited in hearing as compared with ``the
    general populace.'' In Knapp v. City of Columbus, 2006 U.S. App. LEXIS
    17081 (6th Cir. 2006)(unpublished), a class action, the court held that
    the plaintiffs' ADHD did not substantially limit their major life
    activity of learning where it was admittedly controlled with Ritalin.
    In Greathouse v. Westfall, 2006 U.S. App. LEXIS 27882 (6th Cir.
    2006)(unpublished), the court held that the plaintiff was not
    substantially limited in sleeping where he admittedly slept well with
    the use of medication. In Nasser v. City of Columbus, 2004 U.S. App.
    LEXIS 4737 (6th Cir. 2004)(unpublished), the court held that the
    plaintiff's back impairment was not a disability because, in part, ``he
    relieved his back pain through exercises and medicine.'' Similarly, in
    Mancini v. Union Pacific Railroad Co., 2004 U.S. App. LEXIS 8213 (9th
    Cir. 2004)(unpublished), the court held that the plaintiff's epilepsy
    was not a disability because ``the manifestations of his epilepsy,
    i.e., the seizures, are `totally controlled' through the consistent use
    of medication.'' In Collins v. Prudential Investment and Retirement
    Services, 2005 U.S. App. LEXIS 148 (3d Cir. 2005)(unpublished), the
    court noted that the employee's ADHD might not be a disability where
    the condition was corrected with medication. The court stated that the
    mitigating measure need not ``constitute a cure.'' In Manz v. County of
    Suffolk, 2003 U.S. App. LEXIS 3361 (2d Cir. 2003)(unpublished), the
    court found that the plaintiff's vision impairments were not a
    disability because he used very strong glasses which allowed him to see
    sufficiently well. Likewise, in Casey v. Kwik Trip, Inc., 2004 U.S.
    App. LEXIS 22569 (7th Cir. 2004)(unpublished), the court found that the
    plaintiff was not substantially limited in performing household chores
    where she admitted that she performs these chores by using adaptive
    measures, such as using both hands or certain tools or equipment (such
    as an electric can opener) to grip and manipulate objects. In Carr v.
    Publix Super Markets, Inc., 2006 U.S. App. LEXIS 2845 (11th Cir.
    2006)(unpublished), the court held that the employee's impaired arm did
    not substantially limit his major life activities because he had
    learned to compensate through the use of his other arm. Similarly, in
    Didier v. Schwan Food Co., 465 F.3d 838 (8th Cir. 2006), the court held
    that despite his hand injury, the employee was not substantially
    limited in performing manual tasks and caring for himself. The court
    noted that although the employee ``has difficulty with shaving and
    other grooming activities, he learned to do these things left-handed.''
    Interestingly, in Walton v. U.S. Marshals Service, 492 F.3d 998 (9th
    Cir. 2007), the court held mitigating measures includes not only
    ``measures undertaken with artificial aids, like medications and
    devices,'' but also ``measures undertaken, whether consciously or not,
    with the body's own systems.'' In this case, the court held that the
    plaintiff's inability to ``localize sound'' was mitigated by her own
    ``visual localization.'' In Berry v. T-Mobile USA, Inc., 490 F.3d 1211
    (10th Cir. 2007), the court held that the plaintiff was not
    substantially limited in her major life activities since she can
    perform her activities ``given sufficient rest,'' she can ``walk with
    the aid of a cane,'' and she ``can treat her symptoms with
    medication.'' Using curious legal reasoning, the court also held that
    the plaintiff's ``family's assistance with the household chores'' can
    be considered in determining whether she is substantially limited ``as
    that is part of daily living in most families.''
        In Orr v. Wal-Mart Stores, Inc., 297 F.3d 720 (8th Cir. 2002), the
    court found that the plaintiff did not show that his diabetes, as
    controlled with insulin, substantially limited his major life
    activities. The court noted that it would not analyze ``what would or
    could occur if Orr failed to treat his diabetes or how his diabetes
    might develop in the future. In Sinclair Williams v. Stark, 2001 U.S.
    App. LEXIS 5367 (6th Cir. 2001)(unpublished) and Hill v. Kansas City
    Area Transportation Authority, 181 F.3d 891 (8th Cir. 1999), the courts
    found that the employees' hypertension was not a disability because
    they controlled the condition with medications such that it did not
    substantially limit their major life activities. In Cotter v. Ajilon
    Services, Inc., 287 F.3d 593 (6th Cir. 2002), the court held that the
    individual's colitis ``must be viewed in its medicated--and thus
    substantially controlled--state.'' Likewise, in Hein v. All America
    Plywood Co., 232 F.3d 482 (6th Cir. 2000), the court held that the
    plaintiff's hypertension, as medicated, was not a disability because he
    functioned ``normally'' and had ``no problems `whatsoever' '' (quoting
    the plaintiff). In this case, the plaintiff, a truck driver, had asked
    the court to analyze his unmedicated condition because he was fired for
    refusing to take a driving assignment that he claimed would prevent him
    from getting a refill of his medication. The court concluded that he
    could have obtained the refill if he had been more diligent. In Spades
    v. City of Walnut Ridge, 186 F.3d 897 (8th Cir. 1999), the court held
    that the employee's depression was not a disability since he conceded
    that he functioned well with his medications. Similarly, in EEOC v.
    R.J. Gallagher Co., 181 F.3d 645 (5th Cir. 1999), the court noted that
    it did ``not doubt'' that the plaintiff's condition, ``if left
    untreated, would affect the full panorama of life activities, and
    indeed would likely result in an untimely death.'' Nonetheless, the
    court concluded that ``the predicted effects of the impairment in its
    untreated state for the purposes of considering whether a major life
    activity has been affected by a physical or mental impairment has,
    however, been foreclosed'' by the Supreme Court. In Muller v. Costello,
    187 F.3d 298 (2d Cir. 1999), the court concluded that the plaintiff's
    asthma did not substantially limit his ability to breathe, after taking
    into account his inhalers and other medications. Similarly, in Ivy v.
    Jones, 192 F.3d 514 (5th Cir. 1999), the court held that whether the
    plaintiff's hearing impairment ``substantially limited'' her hearing
    should be determined as corrected by her hearing aids. The court noted
    that the plaintiff's hearing might not be substantially limited in
    light of the evidence showing that her hearing was ``corrected to 92%
    with one hearing aid and 96% with two hearing aids.''
                                     ______

        Mr. Andrews. Mr. Fram, thank you very much for your
    thoughtful testimony.
        Dr. Burgdorf, we appreciate your contribution to this law
    from the beginning, and we are happy that you are with us
    today.

     STATEMENT OF ROBERT L. BURGDORF, PROFESSOR OF LAW, UNIVERSITY
                      OF THE DISTRICT OF COLUMBIA

        Mr. Burgdorf. Thank you.
        Chairman Andrews, Ranking Member McKeon, members of the
    committee, it is an honor and it is a solemn responsibility for
    me to have this opportunity to testify before the committee. I
    am humbled somewhat by the thought that there are many, many,
    many Mr. McClures in America, many people who were told by the
    Congress, were told by the president, were told by many of us
    who teach about disability rights law, that henceforth they
    would be protected from discrimination.
        Today, they find out--not today literally--in recent years
    they have found out that isn't true anymore. Many people who
    were clearly protected by the ADA when it was enacted, in
    everyone's eyes that spoke at that time, find out when they are
    told by a court, you may have a disability, but it is not a
    serious enough disability for you to be protected by the
    Americans with Disabilities Act.
        To put it as simply as I can, the courts have made a royal
    mess of the definition of ``disability'' in the ADA. In trying
    to figure out how to communicate in a simple fashion and not in
    my typical law professor fashion, the complex mess that has
    been made of the Americans with Disabilities Act, I prepared a
    little chart that I have attached as appendix B to my
    testimony. I have asked that copies be made available if you
    would rather just take a look at it, rather than flipping
    through my testimony.
        Mr. Andrews. The members do have copies of that.
        Mr. Burgdorf. Okay, they have that. On the left column is
    simply what Congress said, either in statutory language or in
    multiple, multiple expostulations in the congressional
    committee reports. The right side is where we have gotten to
    now. In each of these instances, the courts have basically
    rewritten the definition of ``disability.'' The things that
    Congress said, the very language of the statute, has been
    interpreted in a way that now means something totally
    different.
        Some of those things have to do with just narrow or broad
    construction. Some of them have to do with mitigating measures.
    But they have to do with a lot of other things that the court
    has taken the term ``substantial limitation'' to a major life
    activity and turned it into a crushing burden, an impossible
    burden for many people with disabilities to meet. Or if they
    can, they have to do ridiculous things like prove what their
    sex life is like, prove things that have nothing to do with the
    fact that they were denied employment or terminated from
    employment.
        I also put together as another appendix, an appendix A,
    just a list of cases. There are many of these floating around
    now. It is an endless task. This list could be hundreds of
    cases of particular conditions that people had and went to the
    courts to say, `` I have been discriminated against,'' and the
    court said ``you can't prove that you have a serious enough
    condition to be protected.'' That is appendix A.
        It is all kinds of conditions--muscular dystrophy, multiple
    sclerosis, breast cancer, amputation, loss of use of an eye,
    loss of use of an arm. It is just many things that we were all
    sure were protected.
        In the remainder of my time, I would like to begin to
    address, and I am not sure I can completely do so,
    Representative McKeon's concerns about unintended consequences.
    That is the last thing that we want to have happen. The
    Restoration Act is based in large part upon a report by the
    National Council on Disability called Righting the ADA. It is
    on the NCD websites and copies have been provided to members of
    Congress. I was lucky enough to get to be the principal author
    for the council of that report.
        The council represents--it is 15 people appointed by
    President Bush, and they really are concerned with what is
    happening to the Americans with Disabilities Act. This report
    goes at great length to describing the problems, but also
    trying to suggest the solutions. Let me just address a couple
    of things, and if there are questions about other unintended
    consequences, I would be happy to take those one.
        The first is that this represents an expansion. Well, it
    doesn't represent an expansion if one understands what the
    third prong of the ADA said and what Congress and the courts to
    this time had said the third prong is, which is regarded as
    what having a disability means. I quoted in my testimony from
    language from this committee's report that says very clearly
    that if a person is discriminated against because of a covered
    entities negative attitudes toward the person's impairments,
    they are treated as having a disability and are covered under
    the third prong.
        Also, your report and the reports of all the committees
    that discussed the definition quoted from the leading precedent
    at the time, the Supreme Court's decision in the Arline case,
    that such an impairment might not diminish a person's physical
    or mental abilities, but could nevertheless substantially limit
    that person's ability to work as a result of the negative
    reaction of others to that impairment. People could have minor
    impairments. They could have no impairment.
        The last thing I want to say is that--no, there are two
    things actually.
        Mr. Andrews. If I could ask you to quickly summarize so we
    can get to questions.
        Mr. Burgdorf. Okay. I am over time. Okay. I apologize. I
    would love to take on the ``reasonable accommodation'' issue
    and also to talk about some of what the court had to say.
        [The statement of Mr. Burgdorf follows:]

       Prepared Statement of Robert L. Burgdorf, Jr., Professor of Law,
                     University of the District of Columbia

    Introduction
        In November 1989, the Committee on Education and Labor, by a vote
    of 35-0, approved and reported out the Americans with Disabilities Act
    (ADA). The Committee's action was a significant step in the process by
    which Congress and the George H.W. Bush Administration realized the
    momentous and long-needed objective of according people with
    disabilities protection from discrimination--the right to be treated
    equally and to challenge unfair treatment against them--by enacting the
    ADA. In this legislation, the two elected branches of government made a
    compact with the American people that America would no longer tolerate
    discrimination on the basis of disability, and if people encountered
    such discrimination they could challenge it in court. Unfortunately,
    the judiciary--the unelected branch--has largely taken away protection
    of the ADA and access to the courts to enforce it by drastically and
    aggressively limiting the coverage of the ADA. Today, large numbers of
    people with disabilities around the country find that they no longer
    have the rights the Congress and the President gave them.
        I have been working on a law review article addressing
    discrimination against people with cancer; in doing research for that
    article, I found considerable statistical and anecdotal information
    documenting serious discrimination directed at people who currently
    have cancer and those who have previously been treated for cancer.
    Estimates of the prevalence of such discrimination in the workplace
    vary all over the board, from 5% to 90%, but considering that over 10
    million people living in the United States currently have cancer or
    have been treated for cancer, including over two million who have been
    treated for breast cancer, and that about 40% of them are of working
    age, even the most conservative estimates mean that hundreds of
    thousands of Americans with cancer or a history of cancer have been
    discriminated against by their employers.
        Many workers facing such discrimination have sought to assert their
    rights under the ADA. All too often, however, the courts' restrictive
    interpretations of the Act's coverage have resulted in judicial rulings
    that a worker's cancer is not a disability, much to the sad surprise of
    those who drafted and enacted the legislation. This means that hundreds
    of thousands of people who have had to battle a life-threatening
    disease and then encountered unfair and unnecessary discrimination may
    have no recourse under a law that was manifestly intended to protect
    them. Even those who do manage to satisfy the stringent criteria for
    disability can only do so by making obviously off-the-point and often
    embarrassing and painful showings of how their sexual activities or
    ability to perform personal self care or other unrelated activities are
    severely limited.
        The article I am working on focuses on cancer, but the same
    situation applies to many, perhaps most, other types of disabilities.
    Even a cursory review of the cases decided under the ADA reveals a
    plethora of court decisions in which people with conditions everyone
    thought were covered under the law when it was enacted have had their
    lawsuits thrown out of court based on technical, harshly narrow
    interpretations of what a ``disability'' is. To provide a small, but
    representative, sampling of such cases, I have attached a list of
    decisions in which plaintiffs with significant impairments were unable
    to convince a court that their conditions constituted disabilities
    under the ADA as Appendix A to this testimony. Statistical studies
    pretty consistently indicate that complainants prevail in fewer than
    one-out-of-ten ADA Title I (employment) complaints. One of the studies
    found that courts ruled that the plaintiff had a disability in only six
    percent of the cases.\1\ Ludicrously, employers who take drastic steps,
    such as termination or demotion, against employees because of their
    conditions can successfully contend that the conditions are not serious
    enough to constitute a disability.
        For these reasons, it is both an honor and a solemn responsibility
    for me to have this opportunity to submit comments to the Committee. I
    am pleased to be a part of this panel of distinguished witnesses,
    including Andrew Imparato whom I have worked with and admired for many
    years. In my 19 years as Professor of Law at the University of the
    District of Columbia, David A. Clarke School of Law, I initially taught
    the School's Constitutional Law courses, and for many years now have
    directed a clinical program in legislation--the Legislation Clinic. For
    over 35 years, however, my particular area of legal research and
    expertise has been the rights of people with disabilities. During my
    career, I have had the good fortune to be presented with some wonderful
    opportunities to contribute to the advancement of such rights. Chief
    among these was working for the National Council on Disability during
    the Administration of George H.W. Bush to develop the concept of an
    Americans with Disabilities Act (ADA) and then to craft the Council's
    original version of the ADA. This is the version that Representative
    Tony Coelho and Senator Lowell Weicker had the vision and valor to
    introduce in the 100th Congress in 1988.
        I subsequently worked with Members of Congress and their staffs,
    legal experts, and representatives of affected industries to revise the
    ADA bill for introduction in the 101st Congress in 1989. After the ADA
    was enacted in 1990, I had the opportunity to do some scholarly
    writing, including a hefty legal treatise and several law review
    articles, that discussed the provisions of the ADA and the court
    decisions that started to arise under it. I also had occasion to
    continue to work with the National Council on Disability (NCD) in
    monitoring the case law and federal enforcement efforts regarding the
    ADA. At the Council's request, I developed a summary of the Supreme
    Court's ADA decisions and their implications that is posted on the NCD
    website at http://www.ncd.gov/newsroom/publications/2002/supremecourt--
    ada.htm.
        During the Administration of George W. Bush, NCD focused on the
    digression of some of the Supreme Court's decisions from the intent and
    spirit of the ADA, and decided to undertake an in-depth study of the
    impact of these decisions, consistent with NCD's statutory obligation
    to ``gather information about the implementation, effectiveness, and
    impact of the Americans with Disabilities Act of 1990.'' \2\ The
    Council commissioned a series of policy documents discussing specific
    topics raised by problematic Supreme Court ADA decisions; 19 such topic
    papers have been issued to date. They are posted on the NCD website
    under the title Policy Brief Series: Righting the ADA Papers at http://
    www.ncd.gov/newsroom/publications/2003/policybrief.htm.
        Based upon information uncovered in the development of these topic
    papers, NCD became convinced that corrective legislative action is
    called for, and accorded me the high honor of asking me to pull
    together the various strands and issues discussed in the individual
    topic papers and to draft a unified legislative proposal for getting
    the ADA back on track. The result, a report titled Righting the ADA,
    was issued in December of 2004. It provides an analysis of problematic
    Court rulings, describes the resulting impact on people with
    disabilities, and offers legislative proposals designed to restore the
    ADA to its original intent. Out of various legislative proposals
    discussed in the report, NCD chose to consolidate its preferred
    solutions to the problems created by judicial misinterpretation of the
    ADA into a single draft bill--the ADA Restoration Act.
        NCD has sent copies of the Righting the ADA report to Congress,
    additional copies are available from the National Council, and the
    report is posted on the NCD website at http://www.ncd.gov/newsroom/
    publications/2004/righting--ada.htm. For convenience, however, I am
    including as the final section of my observations the Executive Summary
    of the Righting the ADA report, which includes a Section-by-Section
    Summary and the text of the Council's ADA Restoration Act proposal. I
    will only add a caution that the full text of the report contains
    considerable materials clarifying, explaining, and amplifying the
    impact of the ADA decisions of the Supreme Court and I strongly advise
    those interested in the proposals to read the full rationale that
    supports them. A considerable portion of my testimony is derived more
    or less directly from the Righting the ADA report, the series of topic
    papers that led up to it, and other NCD reports that I helped develop.
        In my testimony, I will describe some of the background of the
    enactment of the ADA and the positive impacts that it has had. I will
    then discuss some of the problematic judicial decisions, particularly
    those of the United States Supreme Court, that have inhibited the
    achievement of some the legislation's central objectives, including the
    unexpected restrictive court interpretations of the definition of
    ``disability'' in the Act. My testimony will outline how the courts
    have missed the boat as to some of the central premises of the ADA. I
    will summarize the efforts of the National Council on Disability to get
    the ADA back on track, culminating in its Righting the ADA report that
    contained an ADA Restoration Act proposal. Finally, I will examine H.R.
    3195, derived in part from the NCD proposal, and discuss the extent to
    which it achieves the goal of undoing the damage done by judicial
    restrictions on the coverage of the ADA.
    Broad bipartisan support
        President George H.W. Bush called July 26, 1990, ``an incredible
    day * * * an immensely important day,'' for on that date he signed into
    law the Americans with Disabilities Act (ADA). In his remarks at the
    signing ceremony, the President described the Act as an ``historic new
    civil rights Act, * * * the world's first comprehensive declaration of
    equality for people with disabilities.'' He added that ``[w]ith today's
    signing of the landmark Americans with Disabilities Act, every man,
    woman, and child with a disability can now pass through once-closed
    doors into a bright new era of equality, independence and freedom.'' He
    also noted that ``my administration and the Congress have carefully
    crafted this Act.''
        A rarity about the ADA was that it was an important piece of
    legislation that almost everyone supported. The votes in Congress to
    pass the ADA were overwhelmingly in favor of passage. The Senate passed
    its version of the ADA bill by a vote of 76 to 8; the House of
    Representatives passed its bill 403 to 20. After differences were
    ironed out in conference, the House approved the final version of the
    bill by a vote of 377 to 28, and the Senate followed suit, adopting the
    final ADA bill by the lopsided margin of 91 to 6. Congressional
    committees that considered the ADA were equally united in their backing
    of the legislation. Two of the five committees--the Senate Labor and
    Human Resources Committee and the House Committee on Education and
    Labor--adopted ADA bills unanimously. The Subcommittee on Civil and
    Constitutional Rights favorably reported the bill by a recorded vote of
    7-1, and the House Judiciary Committee followed suit by a recorded vote
    of 32-3. None of the formal up-or-down committee votes on reporting out
    the ADA, nor any of the floor votes on passage of the legislation, had
    less than a 90 percent majority in favor of the ADA bills.
        Such overwhelming approval of a measure--with at least 9 out of 10
    voting for it--obviously can occur only if it has both Republican and
    Democratic support. The ADA originated, as Senator Robert Dole, the
    Senate minority leader emphasized, ``with an initiative of the National
    Council on Disability, an independent federal body composed of 15
    members appointed by President Reagan and charged with reviewing all
    laws, programs, and policies of the Federal Government affecting
    individuals with disabilities.'' Proposed by Reagan appointees,
    initially sponsored by a Republican in the Senate (Senator Lowell
    Weicker) and a Democrat in the House of Representatives (Representative
    Tony Coelho), passed by a Democrat-controlled Senate and House of
    Representatives, and supported and signed by President George H.W.
    Bush, the ADA was a model of bipartisanship.
        Before the ADA was reintroduced in the 101st Congress, ADA
    advocates in Congress determined that, to pass an effective and
    enforceable law, they needed the support of the administration and
    members of Congress from both major political parties. As Congressman
    Coelho would later report, ``If it had become a Democratic bill, [the
    ADA] would have lost. * * * It had to be bipartisan.'' As the ADA
    passed the Senate, Senator Dole called it ``a good example of
    bipartisanship in action.'' Likewise, President George H.W. Bush
    credited the success of the ADA to the fact that members of Congress,
    ``on both sides of the political aisle'' agreed to ``put politics
    aside'' to ``do something decent, something right.'' He credited the
    ADA's passage to ``a coalition in the finest spirit. A joining of
    Democrats and Republicans. Of the Legislative and the Executive
    Branches. Of federal and state agencies. Of public officials and
    private citizens. Of people with disabilities and without.''
        Members of both political parties participated in cooperative
    meetings to craft compromise provisions and revise problematic language
    in the bills. Republican Representative Steve Bartlett described
    meetings with the leading House advocate for the ADA, Democrat Steny
    Hoyer, as ``the most productive and satisfying legislative negotiations
    that I had ever been involved with.''
        In addition to congressional dialogue and bargaining, a key factor
    in obtaining bipartisan backing and ultimately passing the ADA was the
    unwavering support for the legislation by President George H.W. Bush
    and his administration. While he was Vice President, Mr. Bush had
    pledged that he would promote a civil rights act for people with
    disabilities. Two days before his inauguration as President, Mr. Bush
    declared, ``I said during the campaign that disabled people have been
    excluded for far too long from the mainstream of American life. * * *
    One step that I have discussed will be action on the Americans with
    Disabilities Act in order, in simple fairness, to provide the disabled
    with the same rights afforded others, afforded other minorities.''
    Early in the Senate hearings on the ADA, Senator Tom Harkin, a
    Democrat, made a remarkable statement crediting President George H.W.
    Bush's public remarks in favor of rights for people with disabilities:
        [W]e have had strong, strong statements made by President Bush--no
    President of the United States, Republican or Democrat, has ever said
    the things about disabled Americans that George Bush has said. No
    President, including the President who was in a wheelchair, Franklin
    Roosevelt.
        Senator Harkin concluded that ``this bodes well'' and meant that
    ``we can work together with the administration, [on] both sides of the
    aisle * * *'' on the ADA.
        Attorney General Dick Thornburgh formally announced the Bush
    administration's support for the ADA during Senate hearings on the
    legislation. He declared, ``[w]e at the Justice Department
    wholeheartedly share [the ADA's] goals and commit ourselves, along with
    the President and the rest of his administration to a bipartisan effort
    to enact comprehensive legislation attacking discrimination in
    employment, public services, transportation, public accommodations, and
    telecommunications.'' He added, in regard to the ADA bill, that ``[o]ne
    of its most impressive strengths is its comprehensive character'' that
    was consistent with President George H.W. Bush's commitment to ensuring
    people with disabilities' ``full participation in and access to all
    aspects of society.'' After Administration and Senate advocates ironed
    out differences on specific provisions, the Administration's express
    endorsement of the legislation led to a unanimous Senate Committee vote
    to report the bill out of committee, and to more than 60 Senators
    signing on as cosponsors. It also set the stage for favorable House
    action and final passage of the ADA.
        As the ADA passed the Senate, Senator Dole praised President George
    H.W. Bush for his leadership on the legislation, and declared that
    ``[w]e would not be here today without the support of the President.''
    The senator credited a list of administration officials, including
    Chief of Staff John Sununu and Attorney General Dick Thornburgh, whose
    efforts contributed to the passage of the ADA. He also appended to his
    remarks a New York Times opinion-editorial piece about the ADA written
    by James S. Brady, who had been President Reagan's Press Secretary. Mr.
    Brady wrote:
        As a Republican and a fiscal conservative, I am proud that this
    bill was developed by 15 Republicans appointed to the National Council
    on Disability by President Reagan. Many years ago, a Republican
    President, Dwight D. Eisenhower, urged that people with disabilities
    become taxpayers and consumers instead of being dependent upon costly
    federal benefits. The [ADA] grows out of that conservative philosophy.
        NCD has observed:
        More than any other single player, the role of President Bush
    cannot be overestimated. The ADA would have made little headway were it
    not for the early and consistent support from the nation's highest
    office. * * * The president's support brought people to the table to
    work out a bipartisan compromise bill that could obtain the support of
    the business community as well as that of the disability community.\3\
        Acclaim for the ADA came from many other sources. Senator Dole
    called the ADA ``landmark legislation'' that would ``bring quality to
    the lives of millions of Americans who have not had quality in the
    past.'' Senator Hatch declared the ADA was ``historic legislation''
    whose passage was ``a major achievement'' demonstrating that ``in this
    great country of freedom, * * * we will go to the farthest lengths to
    make sure that everyone has equality and that everyone has a chance in
    this society.'' The executive director of the Leadership Conference on
    Civil Rights described the ADA as ``the most comprehensive civil rights
    measure in the past two-and-a-half decades.'' Senator Edward M. Kennedy
    termed the legislation a ``bill of rights'' and ``an emancipation
    proclamation'' for people with disabilities. The late Justin Dart, who
    occupied disability policy positions in the Reagan, Bush, and Clinton
    administrations, called the ADA ``a landmark commandment of fundamental
    human morality.''
    Backing by subsequent Presidents
        In 2000, President Bill Clinton proclaimed July as ``The Spirit of
    the ADA Month'' and declared:
        The enactment of the Americans with Disabilities Act 10 years ago
    this month signaled a transformation in our Nation's public policies
    toward people with disabilities. America is now a dramatically
    different--and better--country because of the ADA.
        In addition to citing past accomplishments and pending initiatives
    his administration was pursuing to further the implementation of the
    ADA, President Clinton added, ``Vice President Gore and I are proud to
    join in the celebration and to renew our own pledge to help advance the
    cause of disability rights.'' For his part, Vice President Al Gore
    observed, ``We know we can't just pass a few laws and change attitudes
    overnight. But day by day, person by person, we can make a difference.
    Together, let's not just complete the work of the ADA--let's say to the
    whole world: this is one country that knows we don't have a person to
    waste, and we're moving into the next century--together.'' \4\
        Bipartisan support and presidential commitment to the ADA have
    continued. President George W. Bush endorsed the Act and, in February
    2001, issued his ``New Freedom Initiative,'' committing his
    administration to ensuring the rights and inclusion of people with
    disabilities in all aspects of American life. On June 18, 2001,
    President Bush issued Executive Order No. 13217, declaring the
    commitment of the United States to community-based alternatives for
    individuals with disabilities. On the twelfth anniversary of the
    signing of the ADA, July 26, 2002, the President proclaimed the ADA to
    be ``one of the most compassionate and successful civil rights laws in
    American history.'' \5\ The White House also declared that ``[t]he
    administration is committed to the full enforcement of the Americans
    with Disabilities Act.'' President Bush asserted a clear continuity
    between his commitment to the ADA and that of his father:
        [W]hen my father signed the ADA into law in 1990, he said, ``We
    must not and will not rest until every man and woman with a dream has
    the means to achieve it.'' Today we renew that commitment, and we
    continue to work for an America where individuals are celebrated for
    their abilities, not judged by their disabilities.
    Will of the people
        In enacting the ADA and in seeking its vigorous enforcement, the
    elected branches of the Federal Government--the Congress and the
    President--have carried out the will of the American people. A large
    majority of the public reports that it favors the ADA. A 2002 Harris
    Poll found that, of the 77 percent of Americans who said they were
    aware of the ADA, an overwhelming percentage (93 percent) reported that
    they ``approve of and support it.'' The ADA is supported by most of the
    business sector. A Harris Poll of business executives in 1995, for
    example, showed that 90 percent of the executives surveyed said that
    they supported the ADA.
        In the face of negative media reports on the ADA (often misleading
    and sometimes flatly inaccurate), most Americans are still highly
    favorably disposed to the Act. They have had experience with the
    realities of the ADA in their communities and workplaces, and have seen
    how people have benefited from it. They have noticed people with
    visible disabilities at stores, malls, theaters, stadiums, and museums.
    They have seen the ramps, accessible bathrooms, disabled parking
    spaces, and other accessibility features that the ADA has engendered.
    They encounter people who use wheelchairs now able to go to department
    stores, fast food places, and government offices. They know that the
    son of their neighbors is now living comfortably in an apartment in the
    neighborhood with appropriate support services instead of in an
    institutional setting. They are aware that sign language interpreters
    now are routinely present at their county council meetings. In these
    and countless other ways, they have seen the ADA in action, and they
    approve.
    Impact of the ADA
        In a variety of ways, the ADA has lived up to the high hopes that
    accompanied its passage. The provisions of the ADA that address
    architectural, transportation, and communication accessibility have
    changed the face of American society in numerous concrete ways. A vast
    number of buildings and other structures have been affected by
    provisions of the ADA that make it illegal to design or construct any
    new place of public accommodation or other commercial facility without
    making it readily accessible to and usable by people with disabilities,
    or to alter such a facility without incorporating accessibility
    features. The ADA's mass transit provisions ended decades of
    disagreements and controversy regarding many of the issues that
    determined exactly what is required of public transportation systems to
    avoid discriminating on the basis of disability. The ADA contains
    detailed provisions describing requirements for operators of bus, rail,
    and other public transportation systems, and intercity and commuter
    rail systems. Although implementation has been far from perfect and ADA
    provisions do not answer all the questions, much progress in
    transportation accessibility has been made. The ADA's employment
    provisions have dramatically affected hiring practices by barring
    invasive preemployment questionnaires and disability inquiries and the
    misuse of preemployment physical information. These provisions also
    have made job accommodations for workers with disabilities more common
    than they were before the ADA was enacted. The ADA's telecommunications
    provisions have resulted in the establishment of a nationwide system of
    relay services, which permit the use of telephone services by those
    with hearing or speech impairments, and a closed captioning requirement
    for the verbal content of all federally funded television public
    service announcements.
        Other provisions of Title II of the ADA (covering state and local
    governments) and Title III (covering public accommodations) have
    eliminated many discriminatory practices by private businesses and
    government agencies. The ADA has had a particularly strong impact in
    promoting the development of community residential, treatment, and care
    services in lieu of unnecessarily segregated large state institutions
    and nursing homes. The Act provided the impetus for President George W.
    Bush's ``New Freedom Initiative,'' issued in February 2001, committing
    his administration to assuring the rights and inclusion of people with
    disabilities in all aspects of American life; and for Executive Order
    No. 13217, issued on June 18, 2001, declaring the commitment of the
    United States to community-based alternatives for people with
    disabilities.
        At the ADA signing ceremony, the first President Bush declared that
    other countries, including Sweden, Japan, the Soviet Union, and each of
    the 12 member nations of the European Economic Community, had announced
    their desire to enact similar legislation. In the years since its
    enactment, numerous other countries have been inspired by the ADA to
    seek legislation in their own jurisdictions to prohibit discrimination
    on the basis of disability. These countries have looked to the ADA, if
    not as a model, at least as a touchstone in crafting their own
    legislative proposals.
        In 1988, while the original ADA bills were pending before Congress,
    the Presidential Commission on the Human Immunodeficiency Virus (HIV)
    Epidemic endorsed the legislation and recommended that the ADA should
    serve as a vehicle for protecting from discrimination people with HIV
    infection. The ADA has proved to be the principal civil rights law
    protecting people with HIV from the sometimes egregious discriminatory
    actions directed at them.
        In a broader sense, the ADA has, as the Council has observed in a
    report issued in 2000, ``begun to transform the social fabric of our
    nation:''
        It has brought the principle of disability civil rights into the
    mainstream of public policy. The law, coupled with the disability
    rights movement that produced a climate where such legislation could be
    enacted, has impacted fundamentally the way Americans perceive
    disability. The placement of disability discrimination on a par with
    race or gender discrimination exposed the common experiences of
    prejudice and segregation and provided clear rationale for the
    elimination of disability discrimination in this country. The ADA has
    become a symbol, internationally, of the promise of human and civil
    rights, and a blueprint for policy development in other countries. It
    has changed permanently the architectural and telecommunications
    landscape of the United States. It has created increased recognition
    and understanding of the manner in which the physical and social
    environment can pose discriminatory barriers to people with
    disabilities. It is a vehicle through which people with disabilities
    have made their political influence felt, and it continues to be a
    unifying focus for the disability rights movement.\6\
        This is not to ignore the fact that there are huge gaps in
    enforcement of the ADA's requirements or that some covered entities
    have taken an I-won't-do-anything-until-I'm-sued attitude toward the
    obligations imposed by the law. Indeed, the Promises to Keep report,
    from which the preceding quotations were taken, described a variety of
    problems and weaknesses in federal enforcement of the ADA and presented
    recommendations for remedying such deficiencies.
        Numerous people with disabilities, however, have declared that the
    ADA has played an important role in improving their lives. In 1995, NCD
    issued a report titled Voices of Freedom: America Speaks Out on the
    ADA, in which it presented a large number of statements by individuals
    with disabilities talking about the impact of the ADA. The following is
    a tiny sampling of the thousands of statements NCD received:
        The ADA is fantastic. I can go out and participate. The ADA makes
    me feel like I'm one of the gang. (Sandra Brent, Arkansas)
        Even though we had the Rehab Act of 1973, it took the ADA to make
    real change. The ADA has given me hope, independence, and dignity. (
    Yadi Mark, Louisiana)
        Because of the ADA, I have more of the opportunities that other
    people have. Now I feel like a participant in life, not a spectator.
    (Brenda Henry, Kansas)
        A successful person with a disability was once thought of as
    unusual. Now successful people with disabilities are the rule. It's the
    ADA that has opened the door. (Donna Smith-Whitty, Mississippi) \7\
        The report presented statements by people with disabilities about
    their experiences with the ADA in various aspects of their lives,
    including access to the physical environment, access to employment
    opportunities, communication mobility, and self image. The report
    concluded that, * * * the actual research data and the experiences of
    people with disabilities, of their family members, of businesses, and
    of public servants, [demonstrates] that this relatively new law has
    begun to move us rapidly toward a society in which all Americans can
    live, attend school, obtain employment, be a part of a family, and be a
    part of a community in spite of the presence of a disability. What is
    needed now is a renewed commitment to the goals of the Act (which were
    crafted under unprecedented bipartisan efforts), sufficient resources
    to support further education and training concerning the ADA, and
    effective enforcement.\8\
        In a similar vein, President George W. Bush declared the following
    in 2002:
        In the 12 years since President George H.W. Bush signed the ADA
    into law, more people with disabilities are participating fully in our
    society than ever before. As we mark this important anniversary, we
    celebrate the positive effect this landmark legislation has had upon
    our Nation, and we recognize the important influence it has had in
    improving employment opportunities, government services, public
    accommodations, transportation, and telecommunications for those with
    disabilities.
        Today, Americans with disabilities enjoy greatly improved access to
    countless facets of life; but more needs to be done. We must continue
    to build on the important foundations established by the ADA. Too many
    Americans with disabilities remain isolated, dependent, and deprived of
    the tools they need to enjoy all that our Nation has to offer.\9\
    Judicial resistance
        In light of the overwhelming endorsement of the ADA by Congress in
    enacting it, by the Presidents in office at and since its enactment,
    and by the majority of the general public, it is surprising and
    disappointing that the judiciary all too often has given the Act the
    cold shoulder. Problematic judicial interpretations have blunted the
    Act's impact in significant ways. The National Council on Disability,
    numerous legal commentators, and large numbers of people with
    disabilities have become increasingly concerned about certain
    interpretations and limitations placed on the ADA in decisions of the
    U.S. Supreme Court.
        This is not to suggest that all the rulings of the high court on
    the ADA have been negative. Among favorable decisions, the U.S. Supreme
    Court has (1) upheld the ADA's integration requirement and applied it
    to prohibit unnecessary segregation of people receiving residential
    services from the states; (2) held the ADA applicable to protect
    prisoners in state penal systems; (3) held that the ADA prohibits
    discrimination by a dentist against a person with HIV infection; (4)
    ruled that the ADA required the PGA to allow a golfer with a mobility
    impairment to use a golf cart in tournament play as a ``reasonable
    modification;'' and ruled that the ADA protects the rights of people
    with disabilities to have access to the courts. But while not all of
    the Court's ADA decisions are objectionable, those that are have had a
    serious negative impact. They have placed severe restrictions on the
    class of persons protected by the ADA, have narrowed the remedies
    available to complainants who successfully prove violations of the Act,
    have expanded the defenses available to employers, and have even called
    into question the very legality of some parts of the Act. NCD's policy
    paper, The Impact of the Supreme Court's ADA Decisions on the Rights of
    Persons with Disabilities, explores the effect such decisions have had
    on individuals with disabilities. Paper No. 7 of NCD's Policy Brief
    Series: Righting the ADA Papers can be found at http://www.ncd.gov/
    newsroom/publications/2003/policybrief.htm.
        Media coverage of the Court's ADA decisions has made matters worse.
    While such coverage has not been uniformly negative, a significant
    portion of it has been misleading, presenting the Act in a highly
    unfavorable light and placing a negative ``spin'' on the ADA, the court
    decisions interpreting it, and its impact on American society. NCD's
    extensive and detailed policy paper, Negative Media Portrayals of the
    ADA, discusses prevalent media-fed myths about the ADA. Paper No. 5 of
    NCD's Policy Brief Series: Righting the ADA Papers can be found at
    http://www.ncd.gov/newsroom/publications/2003/policybrief.htm.
        Inhibitive court decisions combined with harmful media perspectives
    have caused the ADA to be the object of frequent misunderstanding,
    confusion, and even derision. The detrimental pronouncements of the
    courts and negative impressions of the ADA fostered by media
    mischaracterizations have fed on one another and have generated
    increasing misunderstandings of the Act's underlying purposes and
    vision, frustrated some of its central aims, and narrowed the scope and
    degree of its influence.
    Problematic interpretations of the ADA
                A. Surprising Problems with the Definition of Disability
        When Congress passed the ADA and President George H.W. Bush signed
    it into law, hardly anyone expected trouble in the courts with the
    definition of disability. Congress played it safe by adopting in the
    ADA a definition of disability that was the same as the definition of
    ``handicap'' under the Rehabilitation Act. That definition was enacted
    in 1974 and clarified in regulations issued under Section 504 of the
    Rehabilitation Act. Because the definition was a broad and relatively
    uncontroversial one, defendants seldom challenged plaintiffs' claims of
    having a disability.\10\ In 1984, a federal district court noted that,
    after 10 years' experience with the Rehabilitation Act definition, only
    one court found a Section 504 plaintiff not to have a ``handicap.''
    \11\
        In 1987, the U.S. Supreme Court made it abundantly clear that the
    definition of ``handicap'' under Section 504 was very broad. In School
    Board of Nassau County v. Arline, the Court took an expansive and
    nontechnical view of the definition. The Court found that Ms. Arline's
    history of hospitalization for infectious tuberculosis was ``more than
    sufficient'' to establish that she had ``a record of'' a disability
    under Section 504 of the Rehabilitation Act. The Court made this ruling
    even though her discharge from her job was not because of her
    hospitalization. The Court displayed a lenient interpretation of what a
    plaintiff needed to show to invoke the protection of the statute. It
    noted that, in establishing the new definition of disability in 1974,
    Congress had expanded the definition ``so as to preclude discrimination
    against `[a] person who has a record of, or is regarded as having, an
    impairment [but who] may at present have no actual incapacity at all.'
    ''
        The Court declared that the ``basic purpose of Section 504'' was to
    ensure that individuals ``are not denied jobs or other benefits because
    of the prejudiced attitudes or the ignorance of others'' or ``reflexive
    reactions to actual or perceived [disabilities]'' and that the
    legislative history of the definition of disability ``demonstrates that
    Congress was as concerned about the effect of an impairment on others
    as it was about its effect on the individual.'' The Court elaborated as
    follows:
        Congress extended coverage * * * to those individuals who are
    simply ``regarded as having'' a physical or mental impairment. The
    Senate Report provides as an example of a person who would be covered
    under this subsection ``a person with some kind of visible physical
    impairment which in fact does not substantially limit that person's
    functioning.'' Such an impairment might not diminish a person's
    physical or mental capabilities, but could nevertheless substantially
    limit that person's ability to work as a result of the negative
    reactions of others to the impairment.
        When Congress was considering the ADA, the Supreme Court's decision
    in School Board of Nassau County v. Arline was the leading legal
    precedent on the definition of disability. The Arline ruling was
    expressly relied on in several ADA committee reports discussing the
    definition of disability, including the report of the House Judiciary
    Committee, which quoted the exact language of the Court as set out
    above.\12\
        This was the legal background when Congress adopted the essentially
    identical definition of disability in the ADA. To further ensure that
    the definition of disability and other provisions of the ADA would not
    receive restrictive interpretations, Congress included in the ADA a
    provision requiring that ``nothing'' in the ADA was to ``be construed
    to apply a lesser standard'' than is applied under the relevant
    sections of the Rehabilitation Act, including Section 504, and the
    regulations promulgating them. In his remarks at the ADA signing
    ceremony, President George H.W. Bush pointed with pride to the ADA's
    ``piggybacking'' on Rehabilitation Act language:
        The administration worked closely with the Congress to ensure that,
    wherever possible, existing language and standards from the
    Rehabilitation Act were incorporated into the ADA. The Rehabilitation
    Act standards are already familiar to large segments of the private
    sector that are either federal contractors or recipients of federal
    funds. Because the Rehabilitation Act was enacted 17 years ago, there
    is already an extensive body of law interpreting the requirements of
    that Act.
        Accordingly, at the time of the ADA's enactment, it seemed clear
    that most ADA plaintiffs would not find it particularly difficult to
    establish that they had a disability. NCD issued two policy papers that
    discuss the care with which the ADA definition of disability was
    selected and the breadth of that definition. A Carefully Constructed
    Law and Broad or Narrow Construction of the ADA, papers No. 2 and No.
    4, respectively, of NCD's Policy Brief Series: Righting the ADA Papers,
    can be found at http://www.ncd.gov/newsroom/publications/2003/
    policybrief.htm.
        For some time after the ADA was signed into law, the pattern of
    broad and inclusive interpretation of the definition of disability,
    established under Section 504, continued under the ADA. In 1996, a
    federal district court declared that ``it is the rare case when the
    matter of whether an individual has a disability is even disputed.''
    \13\ As some lower courts, however, began to take restrictive views of
    the concept of disability, defendants took note, and disability began
    to be contested in more and more cases.
        Beginning with its decision in Sutton v. United Airlines in 1999,
    the U.S. Supreme Court started to turn its back on the broad, relaxed
    interpretation of disability endorsed by the Court in the Arline
    decision. By the time of the Toyota Motor Manufacturing, Kentucky, Inc.
    v. Williams decision in 2002, the Court was espousing the view that the
    definition should be ``interpreted strictly to create a demanding
    standard for qualifying as disabled.'' This stance is directly contrary
    to what the Congress and the President intended when they enacted the
    ADA.
        The result of the Court's harsh and restrictive approach to
    defining disability places difficult, technical, and sometimes
    insurmountable evidentiary burdens on people who have experienced
    discrimination. The focus of many time-consuming and expensive legal
    battles is on the characteristics of the person subjected to
    discrimination rather than on the alleged discriminatory treatment
    meted out by the accused party. The ADA was intended to regulate the
    conduct of employers and other covered entities, and to induce them to
    end discrimination. To the extent that these parties can divert the
    focus to a microscopic dissection of the complaining party, central
    objectives of the law are being frustrated.
        Other governments and judicial forums have rejected the Supreme
    Court's restrictive interpretation of disability. Thus, courts in the
    individual states \14\ and in other countries \15\ have embraced more
    inclusive interpretations of who has a disability under
    nondiscrimination laws. And legislatures in the states \16\ and in
    other countries \17\ deliberately have rejected the narrow approach
    under U.S. law as enunciated in the Supreme Court's decisions.
                B. Specific Problems with the Interpretation of Disability
        In its Righting the ADA report, the National Council on Disability
    described nine issues to which the Supreme Court's narrow approach to
    the definition of disability in the ADA had led it to deviate from the
    legislative intent with harmful consequences. These issues were:
        (1) Consideration of Mitigating Measures in Determining Disability,
        (2) Substantial Limitation of a Major Life Activity,
        (3) Employment as a Major Life Activity,
        (4) The ``Class or Broad Range of Jobs'' Standard,
        (5) ``Regarded As'' Having a Disability,
        (6) Validity of and Deference to Be Accorded Federal Regulations
    Implementing the ADA's Definition of Disability,
        (7) Duration Limitation on What Constitutes a Disability,
        (8) Per Se Disabilities, and
        (9) Restrictive Interpretation of the Definition of Disability to
    Create a Demanding Standard.
        In regard to each of these issues, the report describes ``What the
    Supreme Court Did,'' analyzes the ``Significance of the Court's
    Action,'' and gives specific ``Examples of Impact'' of the rulings. To
    provide a graphic summary of the ways that the court decisions have
    deviated from the intentions expressed by Congress when it enacted the
    ADA, I have prepared and attached as Appendix B to this testimony a
    chart contrasting ``What Congress Said'' with ``What the Courts Are Now
    Saying.'' Similarly, the Righting the ADA report contains a section
    titled ``Principles and Assumptions Regarding the Definition of
    Disability When the ADA Was Enacted That Have Been Disregarded or
    Contradicted by the Supreme Court'' which presents 11 important ways in
    which the Court's ADA definitions decisions deviate from expectations
    in place when the ADA was negotiated debated and enacted. For the sake
    of brevity, that information is not reiterated here, but the discussion
    of one of the issues--mitigating measures--that follows hopefully
    exemplifies the kinds of serious problems the Court's approach to the
    definition has caused.
        Before the Supreme Court upset the applecart, all the relevant
    authorities were nearly unanimous in the view that mitigating measures
    should not be considered in deciding whether a person has a disability
    under the ADA. Even before the ADA was enacted, the committee reports
    on the pending legislation declared clearly that mitigating measures
    should not be factored in. The three ADA Committee Reports that
    addressed the issue all concurred that mitigating measures are not to
    be taken into account when determining whether an individual has a
    disability. This Committee declared unequivocally that ``[w]hether a
    person has a disability should be assessed without regard to the
    availability of mitigating measures * * *.'' \18\ The House Committee
    on the Judiciary likewise declared that ``[t]he impairment should be
    assessed without considering whether mitigating measures * * * would
    result in a less-than-substantial limitation.'' \19\ To illustrate the
    application of this approach, the Committee discussed the examples of a
    person with epilepsy whose condition is mitigated by medication and of
    a person with a hearing impairment whose hearing loss is corrected by
    the use of a hearing aid. In the Committee's view, these individuals
    would be covered by the ADA.
        In a sharp break from the legislative history of the ADA, the
    position of the executive agencies responsible for enforcing the ADA,
    and the prior rulings of eight of the nine federal courts of appeal
    that had addressed the issue, the Supreme Court decided, in its rulings
    in the Sutton v. United Airlines, Inc., Murphy v. United Parcel
    Service, and Albertson's, Inc. v. Kirkingburg cases, that mitigating
    measures should be considered in determining whether an individual has
    a disability under the ADA. The Supreme Court's position on mitigating
    measures ignores the rationale that led courts, regulatory agencies,
    and Congress to take a contrary position--that unless you disregard
    mitigating measures in determining eligibility for ADA protection, you
    shield much discrimination on the basis of disability from effective
    challenge.
        The result of the Court's rulings on mitigating measures turns the
    ADA's definition of disability into an instrument for screening out
    large groups of individuals with disabilities from the coverage of the
    Act, and thereby insulating from challenge many instances of the
    pervasive unfair and unnecessary discrimination that the law sought to
    prohibit. To the extent that mitigating measures are successful in
    managing an individual's condition, the Supreme Court's stance on
    mitigating measures deprives the individual of the right to maintain an
    ADA action to challenge acts of disability discrimination she or he has
    experienced, because such a person is not eligible for the ADA's
    protection. This means an employer or other covered entity may
    discriminate with impunity against such individuals in various flagrant
    and covert ways. NCD issued a policy paper examining the function and
    types of mitigating measures, discussing the near consensus in the law
    prior to the Supreme Court's taking a contrary position, and describing
    the repercussions of the Court's position. The Role of Mitigating
    Measures in the Narrowing of the ADA's Coverage, paper No. 11 of NCD's
    Policy Brief Series: Righting the ADA Papers, can be found at http://
    www.ncd.gov/newsroom/publications/2003/policybrief.htm.
        Taking the condition of epilepsy to illustrate, before the Supreme
    Court's rulings in Sutton, Murphy, and Kirkingburg, ``a person [with]
    epilepsy would receive nearly automatic ADA protection,'' \20\
    consistent with statements in the ADA legislative history and
    regulatory guidance. The ADA regulatory commentary of the Equal
    Employment Opportunity Commission (EEOC) and Department of Justice
    (DOJ) specifically declared that an individual with epilepsy would
    remain within the coverage of the ADA even if the effects of the
    condition were controlled by medication.
        The situation changed dramatically with the Supreme Court's
    mitigating measures decisions. To the extent that a covered entity can
    successfully demonstrate (after extensive, intrusive discovery into the
    details of the person's condition) that an individual's epilepsy is
    effectively controlled by medication, the individual cannot challenge
    the discriminatory actions of the covered entity. This is true even if
    the employer or other covered entity has an express policy against the
    hiring of people with epilepsy; puts up signs that say, ``epileptics
    not welcome here;'' inaccurately assumes that all persons with epilepsy
    are inherently unsafe; or has the irrational belief that epilepsy is
    contagious. The unfairness or irrationality of the covered entity's
    actions and motivations, including stereotypes, fears, assumptions, and
    other forms of prejudice, cannot be challenged by a person whose
    condition is mitigated. The end result is that it is a rare plaintiff
    who is in a position to challenge even the most egregious and
    outrageous discrimination involving a condition that can be mitigated.
    One study, by the Epilepsy Legal Defense Fund, found that, of 36 cases
    in which courts had ruled on the issue since the Supreme Court issued
    its decision in Sutton v. United Airlines, 32 had decided that epilepsy
    was not a disability.
        Epilepsy is an illustrative example, but the same principles apply
    to diabetes, various psychiatric disabilities, hypertension, arthritis,
    and numerous other conditions that, for some individuals, can be
    controlled by medication. Moreover, the same problems arise with
    conditions for which techniques and devices other than medication
    provide an avenue for mitigation. Thus, a company that discriminates
    against people who use hearing aids will be insulated from challenge by
    people for whom the hearing aids are effective in offsetting, to some
    degree, diminution of functional ability to hear. Other mitigating
    measures, including prosthetic devices, can raise the same issues--to
    the extent that they are successful, they may lead to an argument that
    the person does not have a disability, even if she or he is
    discriminated against precisely because of the underlying condition or
    even the use of the mitigating measure itself. Obviously, this is
    directly contrary to the stated intentions of this Committee and the
    Congress as a whole.
                C. Misconstruing a Central Premise Underlying the ADA
        Courts that have espoused restrictive interpretations of the
    definition of disability under the ADA have truly missed the boat on
    disability. They have exhibited long-held, antiquated notions about
    disability and about the role of government in addressing disability.
    If courts think of people with disabilities as not capable of working,
    for example, anyone who is able to work must not be disabled.
    Similarly, access barriers were historically viewed by many people as
    being barriers because of an individual's disability, as opposed to the
    problem being the barrier itself. When a person with a mobility
    impairment, for example, could not cross a street with curbs, the
    person's disability was considered to be the reason, as opposed to
    recognizing that the design of the curb was deficient because it was
    done with only certain types of people in mind, when it could just as
    easily have been designed to be usable by all. The ADA embodies a
    social concept of discrimination that views many limitations resulting
    from actual or perceived impairments as flowing, not from limitations
    of the individual, but, rather, from the existence of unnecessary
    barriers to full participation in society and its institutions. The
    social model is at variance with the medical model of disability that
    centers on assessments of the degree of a person's functional
    limitation.\21\
        I once wrote that ``[d]isability nondiscrimination laws, such as
    the Americans with Disabilities Act, and the disability rights movement
    that spawned them have, at their core, a central premise both simple
    and profound * * * that people denominated as `disabled' are just
    people--not different in any critical way from other people.'' \22\ To
    elaborate a bit on that idea, I wrote a section titled ``People with
    Disabilities ``People with Disabilities as Regular Joes and Janes''
    that I shall take the liberty of quoting from here:
        Over thirty years ago, Jacobus tenBroek characterized people with
    disabilities as ``normal people caught at a physical and social
    disadvantage.'' In his remark, Professor tenBroek captured a truth that
    is both the guiding star and essential foundation * * *--that
    individuals with disabilities are just people, not essentially
    different from other people. Though this proposition is relatively
    simple to state, its acceptance is the single most universal aspiration
    of most individuals with disabilities, a central tenet of the
    Disability Rights Movement, and a sine qua non of real equality for
    people with disabilities.
        This helps to explain why terminology in regard to disabilities has
    been a sensitive issue. People with disabilities have come to recognize
    that processes by which they are assigned labels have reinforced the
    perception that they are substantially different from others. In
    response, they have strongly insisted that ``we are `people first,' ''
    and have demanded that their common humanity be acknowledged rather
    than their differentness magnified. It also explains why many
    individuals with disabilities resist attempts to characterize them as
    ``special'' or their daily accomplishments as ``inspirational'' or
    ``courageous.'' At best, such characterizations mark the individual so
    labeled as extraordinary and different from the rest of the population
    and one whose accomplishments and success are a surprise; at worst,
    they suggest that the speaker is saying ``Being who you are is so bad
    that I could not face it--I would just give up,'' ``Your limitations
    are so severe that I don't see how you accomplish anything,'' or even
    ``I would rather be dead than to live with your impairments.'' People
    with disabilities do not view their going about the tasks and trials
    involved in ordinary activities and trying to have accomplishments and
    success as something atypical and heroic. They would prefer to be seen
    for what they are, as ordinary individuals pursuing the same types of
    goals--love, success, sexual fulfillment, contributing to society,
    material comforts, etc.--as other folks.
        The ``integration'' that is required under the ADA and Sections
    501, 503, and 504, and the ``full participation'' that is the ultimate
    objective of federal laws relating to disabilities dictate that
    individuals with disabilities not be unnecessarily differentiated from
    the rest of society. To achieve this end, analysis under these laws
    should not focus on differentiating characteristics of the individual
    alleging discrimination, but instead on the practices and operations of
    covered entities to determine whether or not they are in fact
    discriminatory, when examined in light of latent flexibility in
    structuring and modifying tasks, programs, facilities, and
    opportunities. Legal standards imposed under these laws should serve to
    eliminate practices, policies, barriers, and other mechanisms that
    discriminate on the basis of disability, not to eliminate as many
    people as possible from the protection provided in these laws. In
    short, these laws seek to promote real equality, not to protect a
    special group.\23\
        Despite common misconceptions that there are two distinct groups in
    society--those with disabilities and those without--and that it is
    possible to draw sharp distinctions between these two groups, people
    actually vary across a whole spectrum of infinitely small gradations of
    ability with regard to each individual functional skill. And the
    importance of particular functional skills varies immensely according
    to the situation, and can be greatly affected by the availability or
    unavailability of accommodations and alternative methods of doing
    things. This human ``spectrum of abilities'' was recognized in a 1983
    report by the U.S. Commission on Civil Rights--Accommodating the
    Spectrum of Individual Abilities. The Commission noted that, while the
    popular view is that people with disabilities are impaired in ways that
    make them sharply distinguishable from nondisabled people, instead of
    two separate and distinct classes, there are in fact ``spectrums of
    physical and mental abilities that range from superlative to minimal or
    nonfunctional.'' \24\ In some of its publications, the National Council
    on Disability has explained and elaborated on the spectrum of abilities
    concept.\25\
        In addition, authorities on disability are generally in agreement
    that the concept of disability entails a social judgment; people come
    to have a disability when they are viewed and treated as having one by
    other people. As the U.S. Commission on Civil Rights put it in
    Accommodating the Spectrum of Individual Abilities, ``people are made
    different--that is socially differentiated--by the process of being
    seen and treated as different in a system of social practices that
    crystallizes distinctions * * *.'' \26\ Thus, the experience of
    disability is closely linked to the concept of discrimination.
    Individuals may encounter discrimination on the basis of disability
    whether or not they previously thought of themselves as having a
    disability, and whether or not they meet foreordained, medically
    oriented criteria. To achieve its purposes of eliminating
    discrimination and achieving integration, the ADA should reduce the
    unnecessary differentiation of people because of actual, perceived, or
    former physical and mental characteristics. It emphatically should not
    force people to demonstrate their differentness as a prerequisite to
    receiving protection under the Act.
        The ADA is based on a social or civil rights model (sometimes
    referred to as a socio-political model), in contrast to the traditional
    ``medical model.'' It views the limitations that arise from
    disabilities as largely the result of prejudice and discrimination
    rather than as purely the inevitable result of deficits in the
    individual. Sociology Professor Richard K. Scotch, a disability policy
    author, has written:
        In the socio-political model, disability is viewed not as a
    physical or mental impairment, but as a social construction shaped by
    environmental factors, including physical characteristics built into
    the environment, cultural attitudes and social behaviors, and the
    institutionalized rules, procedures, and practices of private entities
    and public organizations. All of these, in turn, reflect overly narrow
    assumptions about what constitutes the normal range of human
    functioning.\27\
        Law Professor Linda Hamilton Krieger has written that the ADA's
    concept of disability views it ``not only in terms of the internal
    attributes of the arguably disabled individual, but also in terms of
    external attributes of the attitudinal environment in which that person
    must function. `Disability,' under this conception, resides as much in
    the attitudes of society as in the characteristics of the disabled
    individual.'' \28\ She elaborated on the ADA's adoption of the social
    model as follows:
        [T]he drafters of the ADA sought to transform the institution of
    disability by locating responsibility for disablement not only in a
    disabled person's impairment, but also in ``disabling'' physical or
    structural environments. Under such a construction, the concept of
    disability takes on new social meaning. It is not merely a container
    holding tragedy, or occasion for pity, charity, or exemption from the
    ordinary obligations attending membership in society. The concept of
    disability now also, or to a certain extent instead, contains rights to
    and societal responsibility for making enabling environmental
    adaptations. The ADA was in this way crafted to replace the old
    impairment model of disability with a socio-political approach.
        The National Council on Disability has discussed the necessity for
    applying the social model of disability under the ADA.\29\ In the topic
    paper accompanying its initial proposal of an Americans with
    Disabilities Act, NCD expressly rejected the ``medical model'' and the
    need for people to demonstrate the severity of their limitations as a
    precondition to being protected from discrimination.\30\ In its
    Righting the ADA report, NCD included a section titled ``Incorporation
    of a Social Model of Discrimination.'' The Council declared:
        The ADA embodies a social concept of discrimination that views many
    limitations resulting from actual or perceived disabilities as flowing,
    not from limitations of the individual, but, rather, from the existence
    of unnecessary barriers to full participation in society and its
    institutions. This is in contrast to the medical model of disability
    that centers on assessments of the degree of a person's functional
    limitation.\31\
        Accordingly, NCD called for the enactment of a specific provision
    of its ADA Restoration Act proposal to make the endorsement of the
    social model explicit.\32\
                D. Other Kinds of Problems Resulting from Supreme Court
                        Rulings
        Apart from problems with the definition of disability, the Righting
    the ADA report discusses in detail several other kinds of problems that
    have resulting from ill-advised ADA rulings of the Supreme Court. These
    include the following:
        1. In Buckhannon Board and Care Home, Inc. v. West Virginia
    Department of Health and Human Resources, the Supreme Court rejected
    the ``catalyst theory'' that most lower courts had applied in
    determining the availability of attorney's fees and litigation costs to
    plaintiffs in cases under the ADA and other civil rights statutes, and
    under other federal laws that authorize such payments to the
    ``prevailing party.''
        2. In Barnes v. Gorman, the Supreme Court ruled that punitive
    damages may not be awarded in private suits brought under Title VI of
    the 1964 Civil Rights Act, under Section 202 of the ADA, or under
    Section 504 of the Rehabilitation Act.
        3. In Chevron U.S.A. Inc. v. Echazabal, the Supreme Court upheld as
    permissible under the ADA the EEOC regulatory provision that allows
    employers to refuse to hire applicants because their performance on the
    job would endanger their health because of a disability, despite the
    fact that, in the language of the ADA, Congress recognized a ``direct-
    threat'' defense only for dangers posed to other workers.
        4. In U.S. Airways, Inc. v. Barnett, the Supreme Court recognized a
    reasonableness standard for reasonable accommodations separate from
    undue hardship analysis.
        5. In U.S. Airways, Inc. v. Barnett, the Supreme Court ruled that
    the ADA ordinarily does not require the assignment of an employee with
    a disability, as a reasonable accommodation, to a particular position
    to which another employee is entitled under an employer's established
    seniority system, but that it might in special circumstances. The Court
    declared that ``to show that a requested accommodation conflicts with
    the rules of a seniority system is ordinarily to show that the
    accommodation is not `reasonable.' ''
        The implications of some of these rulings are a bit technical and a
    fuller explanation is not provided here. They are explained in some
    detail in Righting the ADA and in the specific topic papers mentioned
    in the report. As those sources explain, the negative impact of such
    decisions on the protection of people with disabilities under the ADA
    is significant and disturbing.
    Getting the ADA back on track: remedial legislation
                A. Generally
        Based on its analysis of what has happened in the last 17 years
    since the ADA was enacted the National Council on Disability reached
    the following conclusion:
        Incisive and forceful legislative action is needed to address the
    dramatic narrowing and weakening of the protection provided by the ADA,
    resulting from the Supreme Court's decisions, and to restore civil
    rights protections. Millions of Americans experience discrimination
    based on ignorance, prejudice, fears, myths, misconceptions, and
    stereotypes that many in American society continue to associate with
    certain impairments, diagnoses, or characteristics. To revive the scope
    and degree of protection that the ADA was supposed to provide--to
    address ``pervasive'' discrimination in a ``comprehensive'' manner, as
    the Act declares--and to put ADA protections on a more equal footing
    with other civil rights protections under federal law, it is necessary
    to remove conceptual and interpretational baggage that has been
    attached to various elements of the ADA. Any legislative proposal
    should address, in some way, each of the problems listed in Section II
    of this report [Righting the ADA] that the Court's decisions have
    created.
        For convenience I am attaching as Appendix C to this testimony the
    Executive Summary of NCD's Righting the ADA report. It contains a
    legislative proposal for getting the ADA back on course--an ADA
    Restoration Act bill--with an explanatory introduction and a section-
    by-section summary. I believe it represents the best thinking to date
    on what ought to be done to ``restore'' the ADA to its original
    congressionally intended course. NCD's proposal addresses a broader
    array of issues than are dealt with in H.R. 3195, but the amendments
    proposed in H.R. 3195 to restore the protections and scope of coverage
    of the ADA are largely based on and generally quite consistent with the
    Righting the ADA proposals.
                B. Restoring the Scope of ADA Protection--H.R. 3195
        The courts have made a royal mess of the three-prong definition of
    disability in the ADA. This has occurred in spite of very clear and
    explicit language and guidance Congress provided in the Act and its
    legislative history. Baffled individuals with all sorts of physical and
    mental impairments find that they are not allowed to challenge
    discrimination against them, based on legal rationales that are
    tortured, hypertechnical, and contrary to common sense.
        Employers are able to say ``Your condition is so problematic that I
    can't hire you,'' or ``so problematic that I must terminate you,'' and
    then turn around and argue in court, successfully, that ``your
    condition isn't serious enough to constitute a disability.'' The focus
    of proceedings in most ADA cases is not on the alleged discrimination
    the plaintiff experienced. Instead the focus is on an invasive and
    often embarrassing, detailed dissection of the plaintiff's condition,
    limitations, and medical background. Instead of concentrating on
    employment or other particular activity in which the discrimination is
    alleged to have occurred, the proceedings and arguments often are about
    other activities, such as sexual activities, reproduction, personal
    care, and many other areas of life far afield from the alleged
    discrimination. Plaintiffs are required to demonstrate whether, in
    discharging them, employers were thinking they were unfit for a broad
    class or range of jobs--a matter that is purely hypothetical and
    concerns the mental state of the employer--a notoriously difficult
    thing to prove. Astoundingly, the Supreme Court has even questioned
    whether employment is a major life activity at all.
        H.R. 3195 addresses the most serious distortions that have resulted
    from a constricted interpretation by the courts of the ADA definition
    of disability. It does so in a manner that is straightforward and
    effective in clearing up the detrimental analytical muddle of the
    current judicial interpretations. Consistent with informed public
    policy, the bill returns the primary focus away from misplaced efforts
    to draw pedantic, absurd distinctions based on judicial assessments of
    degree of limitation and returns it to identifying and eliminating
    discrimination on the basis of disability. To repair the tangle of
    interpretations that have resulted from the Supreme Court's announced
    proclivity for seeing to it that the ADA's coverage is ``interpreted
    strictly to create a demanding standard for qualifying as disabled,''
    \33\ the bill replaces the concept of ``substantial limitation,'' that
    has been so thoroughly and irreparably compromised and misapplied by
    the courts, with the straightforward concept of physical or mental
    impairment, a concept that has a clear and settled definition. A person
    who has been subjected to an adverse employment action (or
    disadvantaged in regard to other types of services or benefits of non-
    employment programs and entities covered by the ADA) because of a
    physical or mental impairment will be protected by the ADA.
        At first glance, one might question whether this alteration to the
    statutory language will engender an unwarranted enlargement of ADA
    coverage--expansion rather than restoration. A more informed
    understanding of the scope of protection Congress intended to establish
    in 1990 leads to the opposite conclusion. The third prong of the ADA
    definition, which includes people who are ``regarded as'' having an
    impairment, was understood at the time of enactment to include anyone
    who was disadvantaged by a covered entity on the basis of disability.
    It is well-documented, if all too often ignored by the courts that, as
    understood by Congress when it passed the ADA, the law was supposed to
    protect any person who was discriminated against because of a physical
    or mental impairment. In its Committee Report accompanying its
    reporting out of the ADA, this Committee said:
        The third prong of the definition includes an individual who is
    regarded as having a covered impairment. This third prong includes an
    individual who has physical or mental impairment that does not
    substantially limit a major life activity, but that is treated by a
    covered entity as constituting such a limitation. The prong also
    includes an individual who has a physical or mental impairment that
    substantially limits a major activity only as a result of the attitudes
    of others toward such impairment or has no physical or mental
    impairment but is treated by a covered entity as having such an
    impairment.\34\
        The Senate ADA Report contained identical language.\35\
        The Committee on Education and Labor went on to explain, in crystal
    clear terms:
        A person who is excluded from any basic life activity, or is
    otherwise discriminated against, because of a covered entity's negative
    attitudes toward that person's impairment is treated as having a
    disability. Thus, for example, if an employer refuses to hire someone
    because of a fear of the ``negative reactions'' of others to the
    individual, or because of the employer's perception that the applicant
    has an impairment which prevents that person from working, that person
    is covered under the third prong of the definition of disability.\36\
        The Report of this Committee and those of the Senate and the House
    Judiciary Committee all discussed, as guiding precedent, the decision
    of the Supreme Court in the Arline case, which, as described above,
    took an expansive view of the third prong of the definition, and all
    three quoted the following language from the Arline decision:
        Such an impairment might not diminish a person's physical or mental
    capabilities, but could nevertheless substantially limit that person's
    ability to work as a result of the negative reactions of other to the
    impairment.\37\
        Clearly, Congress understood that Section 504 did, and intended
    that the ADA would, protect a person with an impairment, even if it did
    not substantially limit a major life activity.
        Contrary to the Supreme Court's view discussed above, Congress
    intended that adverse employment action by a single employer in regard
    to a single job would be sufficient to satisfy the third prong of the
    ADA definition. The Senate Committee Report pointedly cited as examples
    of individuals included within the ``regarded as'' concept ``people who
    are rejected for a particular job for which they apply because of
    findings of a back abnormality in an x-ray, notwithstanding the absence
    of any symptoms, or people who are rejected for a particular job solely
    because they wear hearing aids * * *.'' \38\ The report added:
        A person who is excluded from any activity covered under this Act
    or is otherwise discriminated against because of a covered entity's
    negative attitudes towards disability is being treated as having a
    disability which affects a major life activity. For example, if a
    public accommodation, such as a restaurant, refused entry to a person
    with cerebral palsy because of that person's physical appearance, that
    person would be covered under the third prong of the definition.
    Similarly, if an employer refuses to hire someone because of a fear of
    the (negative reactions( of others to the individual, or because of the
    employer's perception that the applicant had a disability which
    prevented that person from working, that person would be covered under
    the third prong.\39\
        Not only is there no suggestion of a need to show that the
    individual is limited in connection with other jobs or participation in
    other programs, but in support of the quoted language the report cited
    Thornhill v. Marsh and Doe v. Centinela Hospital--two decisions which
    broadly interpret the third prong, consistent with the Arline
    decision.\40\ This Committee expressed similar sentiments and included
    the same case citations in its report.\41\
        The House Committee on the Judiciary used language that differs
    somewhat from that in the other reports but to similar effect. It noted
    that a person who is rejected from a job because of the myths, fears,
    and stereotypes associated with disabilities would be covered under
    this third test, whether or not the employer's perception was shared by
    others in the field and whether or not the person's physical or mental
    condition would be considered a disability under the first or second
    part of the definition.\42\
        To manifest its intent even further, the Judiciary Committee
    declared:
        In the employment context, if a person is disqualified on the basis
    of an actual or perceived physical or mental condition, and the
    employer can articulate no legitimate job-related reason for the
    rejection, a perceived concern about employing persons with
    disabilities could be inferred and the plaintiff would qualify for
    coverage under the (regarded as( test.\43\
        Thus, all of the Congressional Committees that commented on the ADA
    definition of disability understood it to include persons with any
    degree or type of physical or mental impairment if they were
    discriminated against because of it; or even if they had no impairment
    at all, if the covered entity believed they did and subjected them to
    discrimination for that reason. Accordingly, H.R. 3195 merely restores,
    not expands, the coverage of the ADA by protecting persons who are
    discriminated against because of a physical or mental impairment
    regardless of severity.
        Another possible objection to H.R. 3195 is that it might make
    people with very minor impairments eligible for ``reasonable
    accommodations,'' to the serious detriment of employers. This concern
    reflects a misunderstanding about the entitlement to reasonable
    accommodations under the ADA. The ADA does not entitle everyone
    protected from discrimination under the Act to receive a reasonable
    accommodation, nor does the Act provide a right to covered individuals
    to any accommodations they may desire.
        Reasonable accommodations are required under the act for a reason--
    to overcome the effects of impairment that will prevent performance of
    essential job functions or result in denial of job benefits. The ADA
    regulations issued by the EEOC make this abundantly clear; they declare
    that the term ``reasonable accommodation'' means:
        Modifications or adjustments to the work environment, or to the
    manner or circumstances under which the position held or desired is
    customarily performed, that enable a qualified individual with a
    disability to perform the essential functions of that position.'' \44\
        The EEOC's Interpretive Guidance explains that ([t]he reasonable
    accommodation requirement is best understood as a means by which
    barriers to the equal employment opportunity of an individual with a
    disability are removed or alleviated( and adds that those barriers may
    consist of physical or structural obstacles, rigid schedules,
    inflexible procedures, or undue limitations in the ways tasks are
    accomplished.\45\
        The nature and function of reasonable accommodation mean that a
    person cannot qualify for one unless he or she can show that a physical
    or mental impairment prevents the performance of an essential job
    function. Unless the impairment has such an effect, there is no reason
    for an accommodation. Accordingly, fears that people having very minor
    impairments will be able to demand accommodations willy-nilly is
    totally unfounded. Minor impairments will seldom, if ever, prevent
    performance of essential employment functions.
        Even if a person could show that a minor impairment did somehow
    preclude performance of an essential function of the job, that would
    still not mean that the person could obtain some extravagant
    accommodation. The process of deciding upon and rendering accommodation
    is largely within the auspices of employers.
        The EEOC's Interpretive Guidance and the ADA committee reports
    specified a process that covered entities should follow when
    determining what type of accommodation ought to be provided in a
    particular situation. The reports of this Committee and that of the
    Senate Labor and Human Resources declared in identical language that:
        The Committee believes that the reasonable accommodation
    requirement is best understood as a process in which barriers to a
    particular individual's equal employment opportunity are removed. The
    accommodation process focuses on the needs of a particular individual
    in relation to problems in performance of a particular job because of a
    physical or mental impairment. A problem-solving approach should be
    used to identify the particular tasks or aspects of the work
    environment that limit performance and to identify possible
    accommodations that will result in a meaningful equal opportunity for
    the individual with a disability.\46\
        If initial discussions between the employer and the employee or
    applicant do not readily disclose what accommodation is called for, the
    EEOC recommends that an employer undertake a four-step process:
        (1) Analyze the particular job involved and determine its purpose
    and essential functions;
        (2) Consult with the individual with disability to ascertain the
    precise job-related limitations imposed by the individual's disability
    and how those limitations could be overcome with a reasonable
    accommodation;
        (3) In consultation with the individual to be accommodated,
    identify potential accommodations and assess the effectiveness each
    would have in enabling the individual to perform the essential
    functions of the position; and
        (4) Consider the preference of the individual to be accommodated
    and select and implement the accommodation that is most appropriate for
    both the employee and the employer.\47\
        The first step, analyzing the job, involves examining the actual
    job duties and determining the true purpose or object of the job and
    identifying the essential functions that an accommodation must enable
    the individual with a disability to perform.\48\ The ADA committee
    reports refer to this step as ``identifying and distinguishing between
    essential and nonessential job tasks and aspects of the work
    environment of the relevant position(s).'' \49\ The second step,
    ascertaining the limitations imposed by the disability and how a
    reasonable accommodation might overcome them, seeks to identify the
    precise barrier to the employment opportunity that needs to be
    addressed by an accommodation.\50\
        The third step, identifying possible accommodations and assessing
    their effectiveness, begins with suggestions of accommodations by the
    individual needing accommodation and may also involve consultations
    with vocational rehabilitation personnel, the EEOC, or disability
    constituent organizations.\51\ Assessing the effectiveness of various
    possible accommodations includes considering the likely success of each
    potential accommodation in assisting the individual to perform the
    essential functions of the position, the reliability of the
    accommodation, and whether it can be provided in a timely manner.\52\
        The fourth step is to select and implement an appropriate
    accommodation. Where more than one accommodation will enable the
    individual with a disability to perform the essential functions of the
    position, his or her preference should be given primary consideration,
    but the employer retains the ultimate discretion to choose between
    effective accommodations and may choose the one that is less expensive
    or easier to provide.\53\
        At each of these steps, employers are in the driver's seat,
    although they are definitely required to consult with the individual
    seeking the accommodation. Employers will certainly be able to say no
    to unjustified or excessive requested accommodations. And ultimately
    the employer can, if necessary, invoke the ADA's defense against having
    to provide accommodations that result in an undue hardship. Thus, in
    the highly unlikely hypothetical situation in which a person could
    demonstrate that a minor impairment would somehow prevent performance
    of an essential job function, the employer would be fully within its
    rights to select a realistic and proportionate accommodation.
        H.R. 3195 will not cause a problem of accommodations for minor
    impairments. Nor will it enlarge the ADA's coverage beyond that
    intended when the law was enacted. The bill's approach to restoring the
    definition of disability is well-designed to undo the damage wrought by
    the courts' constricted interpretation of ADA protection. I hope that
    this Committee will advance this legislation promptly to achieve what
    the Committee intended when it voted 35-0 to report out the ADA in
    1989.
        Thank you very much for this opportunity to provide input to the
    Committee on this highly important subject.
     appendix a.--sampling of cases in which plaintiffs having significant
    impairments were unsuccessful in demonstrating that they were protected
                                   by the ada
    Amputation: Williams v. Cars Collision Center, LLC, No. 06 C 2105 (N.D.
            Ill. July 9, 2007).
    Asbestosis: Robinson v. Global Marine Drilling Co., 101 F.3d 35 (5th
            Cir. 1996).
    Asthma: Tangires v. Johns Hopkins Hosp., 79 F.Supp.2d 587, 589
            (D.Md.2000)
    Back Injury: Wood v. Crown Redi-Mix, Inc., 339 F.3d 682, 684 (8th
            Cir.2003)
    Bipolar disorder: Johnson v. North Carolina Dep't of Health and Human
            Servs., (M.D.N.C. 2006).
    Breast cancer (and accompanying mastectomy, chemotherapy, and radiation
            therapy): Pimental v. Dartmouth-Hitchcock Clinic, 236 F. Supp.
            2d 177, 183 (D.N.H. 2002); Turner v. Sullivan University
            Systems, Inc., 420 F. Supp. 2d 773, 777 (W.D. Ky. 2006).
    Breast cancer (and accompanying mastectomy and chemotherapy): Schaller
            v. Donelson Air Conditioning Co., 2005 WL 1868769 (M.D. Tenn.
            Aug. 4, 2005).
    Cirrhosis of the liver caused by chronic Hepatitis B: Furnish v. SVI
            Sys. Inc., 270 F.3d 445 (7th Cir. 2001).
    Depression: McMullin v. Ashcroft, 337 F.Supp.2d 1281, 1298-99
            (D.Wyo.2004).
    Diabetes: Orr v. Wal-Mart Stores, Inc., 297 F.3d 720 (8th Cir. 2002).
    Epilepsy: Equal Employment Opportunity Comm'n v. Sara Lee Corp., 237
            F.3d 349 (4th Cir. 2001); Todd v. Academy Corp., 57 F. Supp. 2d
            448, 453-54 (S.D. Tex. 1999).
    Fractured spine: Williams v. Excel Foundry & Machine, Inc., 489 F.3d
            309, 311 (7th Cir. 2007).
    Heart disease and diabetes: Epstein v. Kalvin-Miller International,
            Inc., 100 F. Supp. 2d 222, 223 (S.D.N.Y. 2000).
    HIV Infection: Cruz Carrillo v. AMR Eagle, Inc., 148 F.Supp.2d 142, 146
            (D.P.R.2001).
    Impaired hearing/use of hearing aid: Eckhaus v. Consolidated Rail,
            Corp., No. Civ. 00-5748 (WGB), 2003 WL 23205042, at *5 (D.N.J.
            Dec. 24, 2003).
    Loss of most vision in one eye: Foore v. City of Richmond, 6 Fed. Appx.
            148, 150 (4th Cir. 2001).
    Loss of use of right arm: Didier v. Schwan Food Co., 465 F.3d 838 (8th
            Cir. 2006).
    ``Mental retardation''--intellectual and developmental disabilities:
            Littleton v. Wal-Mart Stores, Inc., No. 05-12770, 2007 WL
            1379986, at *4 (11th Cir. May 11, 2007)
    Multiple sclerosis: Sorensen v. University of Utah Hosp., 194 F.3d
            1084, 1089 (10th Cir.1999).
    Muscular dystrophy: McClure v. General Motors Corp., 75 Fed. Appx. 983,
            2003 WL 21766539 (5th Cir. 2003).
    Post-Traumatic Stress Disorder: Rohan v. Networks Presentations LLC,
            375 F.3d 266, 277 (4th Cir.2004).
    Traumatic brain injury: Phillips v. Wal-Mart Stores, Inc., 78 F. Supp.
            2d 1274 (S.D. Ala. 1999).

                                   APPENDIX B
    ------------------------------------------------------------------------
               CONGRESS SAID                      THE COURTS NOW SAY
    ------------------------------------------------------------------------
    ``COMPREHENSIVE PROHIBITION OF       ELEMENTS OF DEFINITION ``NEED TO BE
     DISCRIMINATION ON THE BASIS OF       INTERPRETED STRICTLY TO CREATE A
     DISABILITY''                         DEMANDING STANDARD FOR QUALIFYING
                                          AS `DISABLED' ''
    ------------------------------------------------------------------------
    ``DISABILITY SHOULD BE ASSESSED      MITIGATING MEASURES SHOULD BE
     WITHOUT REGARD TO THE AVAILABILITY   CONSIDERED IN DETERMINING
     OF MITIGATING MEASURES''             EXISTENCE OF A DISABILITY
    ------------------------------------------------------------------------
    EMPLOYMENT IS A MAJOR LIFE ACTIVITY  EMPLOYMENT MAY NOT BE A MAJOR LIFE
                                          ACTIVITY
    ------------------------------------------------------------------------
    DENIAL OF A PARTICULAR JOB IS        THERE MUST BE DENIAL OF A BROAD
     SUFFICIENT TO CONSTITUTE A           RANGE OR CLASS OF JOBS TO
     SUBSTANTIAL LIMITATION IN            CONSTITUTE A SUBSTANTIAL
     EMPLOYMENT                           LIMITATION
    ------------------------------------------------------------------------
    FEDERAL AGENCIES ARE DIRECTED TO     REGULATIONS INTERPRETING THE
     ISSUE REGULATIONS FOR CARRYING OUT   DEFINITION OF DISABILITY ARE OF
     ADA                                  DOUBTFUL VALIDITY
    ------------------------------------------------------------------------
    ``MAJOR LIFE ACTIVITIES OF SUCH      ``ACTIVITIES THAT ARE OF CENTRAL
     INDIVIDUAL''                         IMPORTANCE IN MOST PEOPLE'S DAILY
                                          LIVES''
    ------------------------------------------------------------------------
    ``SUBSTANTIALLY LIMITS''             ``PREVENTS OR SEVERELY RESTRICTS''
    ------------------------------------------------------------------------
    ``REGARDED AS'' PRONG APPLIES TO     ``REGARDED AS'' PRONG SUBJECT TO
     PERSON DISCRIMINATED AGAINST BASED   FIRST PRONG LIMITATIONS, SUCH AS
     ON DISABILITY EVEN IF PERSON DOES    CONSIDERATION OF MITIGATING
     NOT HAVE SUBSTANTIALLY LIMITING      MEASURES AND REQUIREMENT THAT
     CONDITION                            PERSON BE UNABLE TO PERFORM BROAD
                                          RANGE OR CLASS OF JOBS
    ------------------------------------------------------------------------
    ``REGARDED AS'' PRONG APPLIES TO     ``REGARDED AS'' PRONG APPLIES ONLY
     PERSON TREATED AS HAVING A           WHEN EMPLOYER SHOWN TO ``ENTERTAIN
     DISABILITY                           MISPERCEPTIONS ABOUT THE
                                          INDIVIDUAL'' AND BELIEVES THE
                                          PERSON HAS A SUBSTANTIALLY
                                          LIMITING IMPAIRMENT
    ------------------------------------------------------------------------
    NO MENTION OF DURATION-OF-           ``IMPAIRMENT'S IMPACT MUST ALSO BE
     IMPAIRMENT LIMITATION                PERMANENT OR LONG TERM'' TO
                                          CONSTITUTE A DISABILITY
    ------------------------------------------------------------------------
    HIV, PARAPLEGIA, DEAFNESS, HARD OF   MAYBE SO, MAYBE NOT
     HEARING/HEARING LOSS, LUNG
     DISEASE, BLINDNESS, MENTAL
     RETARDATION, ALCOHOLISM ARE
     DISABILITIES
    ------------------------------------------------------------------------

                                   appendix c
    The following is from the righting the ADA Report of the National
            Council on Disability (December 2004), PP. 11-27:
                Executive Summary
        Many Americans with disabilities feel that a series of negative
    court decisions is reducing their status to that of ``second-class
    citizens,'' a status that the Americans with Disabilities Act (ADA) was
    supposed to remedy forever. In this report, the National Council on
    Disability (NCD), which first proposed the enactment of an ADA and
    developed the initial legislation, offers legislative proposals
    designed to get the ADA back on track. Like a boat that has been blown
    off course or tipped over on its side, the ADA needs to be ``righted''
    so that it can accomplish the lofty and laudable objectives that led
    Congress to enact it.
        Since President George H.W. Bush signed the ADA into law in 1990,
    the Act has had a substantial impact. The Act has addressed and
    prohibited many forms of discrimination on the basis of disability,
    although implementation has been far from universal and much still
    remains to be done. In its role in interpreting the ADA, the judiciary
    has produced mixed results. Led by the U.S. Supreme Court, the courts
    have made some admirable rulings, giving effect to various provisions
    of the Act. Unfortunately, however, many ADA court decisions have not
    been so positive. This report addresses a series of Supreme Court
    decisions in which the Court has been out of step with the
    congressional, executive, and public consensus in support of ADA
    objectives, and has taken restrictive and antagonistic approaches
    toward the ADA, resulting in the diminished civil rights of people with
    disabilities. In response to the Court's damaging decisions, this
    report seeks to document and explain the problems they create and
    advance legislative proposals to reverse their impact. NCD has
    developed more extensive and detailed analyses of these issues in a
    series of papers published under the title Policy Brief Series:
    Righting the ADA Papers. The papers can be found at http://www.ncd.gov/
    newsroom/publications/2003/policybrief.htm.
        In an effort to return the ADA to its original course, this report
    offers a series of legislative proposals designed to do the following:
    (1) reinstate the scope of protection the Act affords, (2) restore
    certain previously available remedies to successful ADA claimants, and
    (3) repudiate or curtail certain inappropriate and harmful defenses
    that have been grafted onto the carefully crafted standards of the ADA.
        As this report was going to press, the Supreme Court issued its
    decision in the case of Tennessee v. Lane, in which the Court upheld
    provisions of Title II of the ADA, as applied, to create a right of
    access to the courts for individuals with disabilities. The Lane ruling
    certainly merits additional study, and NCD expects to issue future
    analyses of the decision and the questions it leaves open. This report
    does not attempt to address such issues.
        The body of the report at times discusses alternative legislative
    approaches to some of the problems it addresses. NCD has chosen,
    however, to consolidate its preferred solutions to the various problems
    into a single draft bill. The following represent the specific
    legislative proposals made by NCD at this time for ``righting the
    ADA,'' first described in a Section-by-Section Summary and then
    presented as a proposed ``ADA Restoration Act of 2004.''
    The ADA Restoration Act of 2004: Section-by-Section Summary
                Section 1--Short Title
        This section provides that the law may be cited as The ADA
    Restoration Act of 2004 and conveys the essence of the proposal's
    thrust, which is not to proffer some new, different rendition of the
    ADA but, rather, to return the Act to the track that Congress
    understood it would follow when it enacted the statute in 1990. The
    title echoes that of the Civil Rights Restoration Act of 1987, which
    was passed to respond to and undo the implications of a series of
    decisions by the Supreme Court, culminating in Grove City College v.
    Bell, which had taken a restrictive view of the phrase ``program or
    activity'' in defining the coverage of various civil rights laws
    applicable to recipients of federal financial assistance. As with that
    law, The ADA Restoration Act would ``restore'' the law to its original
    congressionally intended course.
                Section 2--Findings and Purposes
        Subsection (a) presents congressional findings explaining the
    reasons that an ADA Restoration Act is needed. It describes how certain
    decisions of the Supreme Court have weakened the ADA by narrowing the
    broad scope of protection afforded in the Act, eliminating or narrowing
    remedies available under the Act, and recognizing some unnecessary
    defenses that are inconsistent with the Act's objectives.
        Subsection (b) provides a statement of the overall purposes of the
    ADA Restoration Act, centering on reinstating original congressional
    intent by restoring the broad scope of protection and the remedies
    available under the ADA, and negating certain inappropriate defenses
    that Court decisions have recognized.
                Section 3--Amendments to the ADA of 1990
        This section, and its various subsections, includes the substantive
    body of the ADA Restoration Act, which amends specific provisions of
    the ADA.
        Subsection (a) revises references in the ADA to discrimination
    ``against an individual with a disability'' to refer instead to
    discrimination ``on the basis of disability.'' This change recognizes
    the social conception of disability and rejects the notion of a rigidly
    restrictive protected class.
        Subsection (b) revises certain of the congressional findings in the
    ADA. Paragraph (1) revises the finding in the ADA that provided a rough
    estimate of the number of people having actual disabilities, a figure
    that a majority of the Supreme Court misinterpreted as evidence that
    Congress intended the coverage of the Act to be narrowly circumscribed.
    The revised finding stresses that normal human variation occurs across
    a broad spectrum of human abilities and limitations, and makes it clear
    that all Americans are potentially susceptible to discrimination on the
    basis of disability, whether they actually have physical or mental
    impairments and regardless of the degree of any such impairment.
    Paragraph (2) revises the wording of the ADA finding regarding the
    history of purposeful unequal treatment suffered by people with certain
    types or categories of disabilities. Paragraphs (3) and (4) add a new
    finding that incorporates a social concept of disability and
    discrimination on the basis of disability.
        Subsection (c) revises some of the definitions used in the ADA.
    Paragraph (1) amends the definition of the term ``disability'' to
    clarify that it shall not be construed narrowly and legalistically by
    drawing fine technical distinctions based on relative differences in
    degrees of impairment, instead of focusing on how the person is
    perceived and treated. This approach rejects the medical model of
    disability that categorizes people because of their supposedly
    intrinsic limitations, without reference to social context and socially
    imposed barriers, and to individual factors such as compensatory
    techniques and personal strengths, goals, and motivation. The second
    part, headed ``Construction,'' invalidates the Supreme Court's rulings
    in Sutton v. United Airlines, Murphy v. United Parcel Service, and
    Albertson's, Inc. v. Kirkingburg by clarifying that mitigating
    measures, such as medications, assistive devices, and compensatory
    mechanisms shall not be considered in determining whether an individual
    has a disability.
        Paragraphs (2) and (3) add definitions of the terms ``physical or
    mental impairment,'' ``perceived physical or mental impairment,'' and
    ``record of physical or mental impairment'' to the statutory language.
    These definitions are derived from current ADA regulations, and were
    recommended for inclusion in NCD's original 1988 version of the ADA.
        Subsection (d) clarifies that the ADA's ``direct-threat'' defense
    applies to customers, clients, passersby, and other people who may be
    put at risk by workplace activities, but, contrary to the Court's
    ruling in Chevron U.S.A. Inc. v. Echazabal, not to the worker with a
    disability. The latter clarification returns the scope of the direct-
    threat defense to the precise dimensions in which it was established in
    the express language of the ADA as enacted.
        Subsection (e) restores the carefully crafted standard of undue
    hardship as the sole criterion for determining the reasonableness of an
    otherwise effective accommodation.
        Subsection (f) clarifies that ADA employment rights of individuals
    with disabilities, including the opportunity to be reassigned to a
    vacant position as a reasonable accommodation, are not to take a
    backseat to rights of other employees under a seniority system or
    collective bargaining agreement. In addition, covered entities are
    directed to incorporate recognition of ADA rights in future collective
    bargaining agreements.
        Subsection (g) adds new subsections to the Remedies provision of
    Title II of the ADA. The first restores the possibility of recovering
    punitive damages available to ADA plaintiffs who prove they have been
    subjected to intentional discrimination, an opportunity that was
    foreclosed by the Supreme Court in Barnes v. Gorman. The second added
    subsection underscores the fact that other remedies, but not punitive
    damages, are available to ADA plaintiffs who prove that they have been
    subjected to ``disparate impact'' discrimination. The third new
    subsection establishes that intentionally refusing to comply with
    certain requirements of Title II of the ADA and the Rehabilitation Act,
    including accessibility requirements, auxiliary aids requirements,
    communication access requirements, and the prohibition on blanket
    exclusions in eligibility criteria and qualification standards,
    constitutes engaging in unlawful intentional discrimination.
        Subsection (h) provides that the provisions of the Act are to be
    liberally construed to advance its remedial purposes. To counter the
    Court's ruling that eligibility for ADA protection should be
    ``interpreted strictly to create a demanding standard for qualifying''
    (Toyota Motor Manufacturing, Kentucky, Inc. v. Williams), another
    provision declares that the elements of the definition of
    ``disability'' are to be interpreted broadly. In addition, the
    subsection provides that ``discrimination'' is to be construed broadly
    to include the various forms in which discrimination on the basis of
    disability occurs. The subsection adds provisions that direct the
    attorney general, the Equal Employment Opportunity Commission, and the
    Secretary of Transportation to issue regulations implementing the ``ADA
    Restoration Act,'' and establish that properly issued ADA regulations
    are entitled to deference in administrative and judicial proceedings.
        Subsection (i) corrects the ruling of the Supreme Court in
    Buckhannon Board and Care Home, Inc. v. West Virginia Department of
    Health and Human Resources, which rejected the catalyst theory in
    determining eligibility of ADA plaintiffs to attorney's fees, by
    reinstating the catalyst theory.
                Section 4--Effective Date
        This section provides that the Act and the amendments it makes
    shall take effect upon enactment, and shall apply to cases that are
    pending when it is enacted or that are filed thereafter.
    The ADA Restoration Act of 2004: A Draft Bill
        To amend the Americans with Disabilities Act (ADA) of 1990 to
    restore the broad scope of protection and the remedies available under
    the Act, and to clarify the inconsistency with the Act of certain
    defenses.
        Be it enacted by the Senate and House of Representatives of the
    United States of America in Congress assembled,
                Section 1.--Short Title.
        This Act may be cited as the ``ADA Restoration Act of 2004.''
                Section 2.--Findings and Purposes.
        (a) Findings.--The Congress finds that----
        (1) in enacting the ADA of 1990, Congress intended that the Act
    ``establish a clear and comprehensive prohibition of discrimination on
    the basis of disability,'' and provide broad coverage and vigorous and
    effective remedies without unnecessary and obstructive defenses;
        (2) some decisions and opinions of the Supreme Court have unduly
    narrowed the broad scope of protection afforded in the ADA, have
    eliminated or narrowed remedies meant to be available under the Act,
    and have recognized certain defenses that run counter to the purposes
    of the Act;
        (3) in enacting the ADA, Congress recognized that physical and
    mental impairments are natural and normal parts of the human experience
    that in no way diminish a person's right to fully participate in all
    aspects of society, but Congress also recognized that people with
    physical or mental impairments having the talent, skills, abilities,
    and desire to participate in society are frequently precluded from
    doing so because of prejudice, antiquated attitudes, or the failure to
    remove societal and institutional barriers;
        (4) Congress modeled the ADA definition of disability on that of
    Section 504 of the Rehabilitation Act of 1973, which had to the time of
    the ADA's enactment been construed broadly to encompass both actual and
    perceived limitations, and limitations imposed by society; the broad
    conception of the definition had been underscored by the Supreme
    Court's statement in its decision in School Board of Nassau County v.
    Arline, 480 U.S. 273, 284 (1987), that the Section 504 definition
    ``acknowledged that society's myths and fears about disability and
    disease are as handicapping as are the physical limitations that flow
    from actual impairment;''
        (5) in adopting the Section 504 concept of disability in the ADA,
    Congress understood that adverse action based on a person's physical or
    mental impairment might have nothing to do with any limitations caused
    by the impairment itself;
        (6) instead of following congressional expectations that disability
    would be interpreted broadly in the ADA, the Supreme Court has ruled,
    in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S.
    184, 197 (2002), that the elements of the definition ``need to be
    interpreted strictly to create a demanding standard for qualifying as
    disabled,'' and, consistent with that view, has narrowed the
    application of the definition in various ways;
        (7) contrary to explicit congressional intent expressed in the ADA
    committee reports, the Supreme Court has eliminated from the Act's
    coverage individuals who have mitigated the effects of their
    impairments through the use of such measures as medication and
    assistive devices;
        (8) contrary to the expectations of Congress in enacting the ADA,
    the Supreme Court has rejected the ``catalyst theory'' in the awarding
    of attorney's fees and litigation costs under the Act, and has ruled
    that punitive damages may not be awarded in private suits under Section
    202 of the Act;
        (9) contrary to congressional intent and the express language of
    the ADA, the Supreme Court has recognized the defense that a worker
    with a disability could pose a direct threat to her or his own health
    or safety;
        (10) contrary to carefully crafted language in the ADA, the Supreme
    Court has recognized a reasonableness standard for reasonable
    accommodation distinct from the undue hardship standard that Congress
    had imposed;
        (11) contrary to congressional intent, the Supreme Court has made
    the reasonable accommodation rights of workers with disabilities under
    the ADA subordinate to seniority rights of other employees; and
        (12) legislation is necessary to return the ADA to the breadth of
    coverage, the array of remedies, and the finely calibrated balance of
    standards and defenses Congress intended when it enacted the Act.
        (b) Purposes.--The purposes of this Act are----
        (1) to effect the ADA's objectives of providing ``a clear and
    comprehensive national mandate for eliminating discrimination'' and
    ``clear, strong, and enforceable standards addressing discrimination''
    by restoring the broad scope of protection and the remedies available
    under the ADA, and clarifying the inconsistency with the Act of certain
    defenses;
        (2) to respond to certain decisions of the Supreme Court that have
    narrowed the class of people who can invoke the protection from
    discrimination the ADA provides, reduced the remedies available to
    successful ADA claimants, and recognized or permitted defenses that run
    counter to ADA objectives;
        (3) to reinstate original congressional intent regarding the
    definition of disability by clarifying that ADA protection is available
    for all individuals who are subjected to adverse treatment based on
    actual or perceived impairment, or are adversely affected by prejudiced
    attitudes, such as myths, fears, ignorance, or stereotypes concerning
    disability or particular disabilities, or by the failure to remove
    societal and institutional barriers;
        (4) to restore the full array of remedies available under the ADA;
        (5) to ensure that the rights afforded by the ADA are not
    subordinated by paternalistic and misguided attitudes and false
    assumptions about what a person with a physical or mental impairment
    can do without endangering the individual's own personal health or
    safety;
        (6) to ensure that the rights afforded by the ADA are not
    subordinated to seniority rights of other employees in regard to an
    otherwise vacant job position to which the individual requires transfer
    as a reasonable accommodation; and
        (7) to ensure that the carefully crafted standard of undue hardship
    as a limitation on reasonable accommodation rights afforded by the ADA
    shall not be undermined by recognition of a separate and divergent
    reasonableness standard.
                Section 3.--Amendments to the ADA of 1990.
        (a) Discrimination.--References in the ADA to discrimination
    ``against an individual with a disability'' or ``against individuals
    with disabilities'' shall be replaced by references to discrimination
    ``on the basis of disability'' at each and every place that such
    references occur.
        (b) Findings.--Section 2(a) of the ADA of 1990 (42 U.S.C. 12101(a))
    is amended----
        (1) by striking the current subsection (1) and replacing it with
    the following:
        ``(1) though variation in people's abilities and disabilities
    across a broad spectrum is a normal part of the human condition, some
    individuals have been singled out and subjected to discrimination
    because they have conditions considered disabilities by others; other
    individuals have been excluded or disadvantaged because their physical
    or mental impairments have been ignored in the planning and
    construction of facilities, vehicles, and services; and all Americans
    run the risk of being discriminated against because they are
    misperceived as having conditions they may not actually have or because
    of misperceptions about the limitations resulting from conditions they
    do have;''
        (2) by striking the current subsection (7) and replacing it with
    the following:
        ``(7) some groups or categories of individuals with disabilities
    have been subjected to a history of purposeful unequal treatment, have
    had restrictions and limitations imposed upon them because of their
    impairments, and have been relegated to positions of political
    powerlessness in our society, based on characteristics that are beyond
    the control of such individuals and resulting from stereotypic
    assumptions not truly indicative of the individual ability of such
    individuals to participate in, and contribute to, society;
    classifications and selection criteria that are based on prejudice,
    ignorance, myths, irrational fears, or stereotypes about disability
    should be strongly disfavored, subjected to skeptical and meticulous
    examination, and permitted only for highly compelling reasons;''
        (3) by striking the period (``.'') at the end of the current
    subsection (9) and replacing it with ``; and''; and
        (4) by adding after the current subsection (9) the following new
    subsection:
        ``(10) discrimination on the basis of disability is the result of
    the interaction between an individual's actual or perceived impairment
    and attitudinal, societal, and institutional barriers; individuals with
    a range of actual or perceived physical or mental impairments often
    experience denial or limitation of opportunities resulting from
    attitudinal barriers, including negative stereotypes, fear, ignorance,
    and prejudice, in addition to institutional and societal barriers,
    including architectural, transportation, and communication barriers,
    and the refusal to make reasonable modifications to policies,
    practices, or procedures, or to provide reasonable accommodations or
    auxiliary aids and services.''
        (c) Definitions.--Section 3 of the ADA of 1990 (42 U.S.C. 12102) is
    amended----
        (1) by striking the current subsection (2) and replacing it with
    the following:
        ``(2) Disability.
        ``(A) In General.--The term ``disability'' means, with respect to
    an individual----
        (i) a physical or mental impairment;
        (ii) a record of a physical or mental impairment; or
        (iii) a perceived physical or mental impairment.
        ``(B) Construction.----
        (i) The existence of a physical or mental impairment, or a record
    or perception of a physical or mental impairment, shall be determined
    without regard to mitigating measures;
        (ii) The term ``mitigating measure'' means any treatment,
    medication, device, or other measure used to eliminate, mitigate, or
    compensate for the effect of an impairment, and includes prescription
    and other medications, personal aids and devices (including assistive
    technology devices and services), reasonable accommodations, or
    auxiliary aids and services; and
        (iii) actions taken by a covered entity because of a person's use
    of a mitigating measure or because of a side effect or other
    consequence of the use of such a measure shall be considered `on the
    basis of disability.' ''
        (2) by redesignating the current subsection (3) as subsection (6);
    and
        (3) by adding after the current subsection (2) the following new
    subsections:
        ``(3) Physical or mental impairment.--The term ``physical or mental
    impairment'' means----
        ``(A) any physiological disorder or condition, cosmetic
    disfigurement, or anatomical loss affecting one or more of the
    following body systems: neurological; musculoskeletal; special sense
    organs; respiratory, including speech organs; cardiovascular;
    reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and
    endocrine; or
        (B) any mental or psychological disorder, such as mental
    retardation, organic brain syndrome, emotional or mental illness, and
    specific learning disabilities.
        ``(4) Record of physical or mental impairment.--The terms ``record
    of a physical or mental impairment'' or ``record of impairment'' means
    having a history of, or having been misclassified as having, a physical
    or mental impairment.
        ``(5) Perceived physical or mental impairment.--The terms
    ``perceived physical or mental impairment'' or ``perceived impairment''
    mean being regarded as having or treated as having a physical or mental
    impairment.''
        (d) Direct threat.--Subsection 101(3) of the ADA of 1990 (42 U.S.C.
    12111(3)) is amended----
        (1) by redesignating the current definition as part (A)--In
    general; and
        (2) by adding after the redesignated part (A) a new part (B) as
    follows:
        ``(B) Construction.--The term ``direct threat'' includes a
    significant risk of substantial harm to a customer, client, passerby,
    or other person that cannot be eliminated by reasonable accommodation.
    Such term does not include risk to the particular applicant or employee
    who is or is perceived to be the source of the risk.''
        (e) Reasonable accommodation.--Subsection 101(9) of the ADA of 1990
    (42 U.S.C. 12111(9)) is amended----
        (1) by redesignating the current definition as part (A)--Example s
    of types of accommodations.; and
        (2) by adding after the redesignated part (A) a new part (B) as
    follows:
        ``(B) Reasonableness.--A reasonable accommodation is a modification
    or adjustment that enables a covered entity's employee or applicant
    with a disability to enjoy equal benefits and privileges of employment
    or of a job application, selection, or training process, provided
    that----
        (i) the individual being accommodated is known by the covered
    entity to have a mental or physical limitation resulting from a
    disability, is known by the covered entity to have a record of a mental
    or physical limitation resulting from a disability, or is perceived by
    the covered entity as having a mental or physical limitation resulting
    from a disability;
        (ii) without the accommodation, such limitation will prevent the
    individual from enjoying such equal benefits and privileges; and
        (iii) the covered entity may establish, as a defense, that a
    particular accommodation is unreasonable by demonstrating that the
    accommodation would impose an undue hardship on the operation of the
    business of such covered entity.''
        (f) Nonsubordination.--Section 102 of the ADA of 1990 (42 U.S.C.
    12112) is amended by adding after the current subsection (c) a new
    subsection as follows:
        ``(d) Nonsubordination.--A covered entity's obligation to comply
    with this Title is not affected by any inconsistent term of any
    collective bargaining agreement or seniority system. The rights of an
    employee with a disability under this Title shall not be subordinated
    to seniority rights of other employees in regard to an otherwise vacant
    job position to which the individual with a disability requires
    transfer as a reasonable accommodation. Covered entities under this
    Title shall include recognition of ADA rights in future collective
    bargaining agreements.''
        (g) Remedies.--Section 203 of the ADA of 1990 (42 U.S.C. 12133) is
    amended----
        (1) by redesignating the current textual provision as subsection
    (a)--In general ., and adding at the beginning of the text of
    subsection (a) the phrase ``Subject to subsections (b), (c), and
    (d),''; and
        (2) by adding, after the redesignated subsection (a), new
    subsections as follows:
        ``(b) Claims based on proof of in tent ional discrimination.--In an
    action brought by a person aggrieved by discrimination on the basis of
    disability (referred to in this section as an `aggrieved person') under
    Section 202 of this Act, or under Section 504 of the Rehabilitation Act
    of 1973 (29 U.S.C. 794), against an entity covered by those provisions
    who has engaged in unlawful intentional discrimination (not a practice
    that is unlawful because of its disparate impact) prohibited under
    those sections (including their implementing regulations), an aggrieved
    person may recover equitable and legal relief (including compensatory
    and punitive damages) and attorney's fees (including expert fees) and
    costs.
        ``(c) Claims based on disparate impact .--In an action brought by
    an `aggrieved person' under Section 202 of this Act, or under Section
    504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), against an
    entity covered by those provisions who has engaged in unlawful
    disparate impact discrimination prohibited under those sections
    (including their implementing regulations), an aggrieved person may
    recover equitable relief and attorney's fees (including expert fees)
    and costs.
        ``(d) Construction.--In addition to other actions that constitute
    unlawful intentional discrimination under subsection (b), a covered
    entity engages in such discrimination when it intentionally refuses to
    comply with requirements of Section 202 of this Act, or of Section 504
    of the Rehabilitation Act of 1973 (29 U.S.C. 794), or of their
    implementing regulations, by willfully, unlawfully, materially, and
    substantially----
        (1) failing to meet applicable program and facility accessibility
    requirements for existing facilities, new construction and alterations;
        (2) failing to furnish appropriate auxiliary aids and services;
        (3) failing to ensure effective communication access; or
        (4) imposing discriminatory eligibility criteria or employment
    qualification standards that engender a blanket exclusion of
    individuals with a particular disability or category of disability.''
        (h) Construction.--Section 501 of the ADA of 1990 (42 U.S.C. 12201)
    is amended by adding after the current subsection (d) the following new
    subsections:
        ``(e) Supportive construction.--In order to ensure that this Act
    achieves its objective of providing a comprehensive prohibition of
    discrimination on the basis of disability, discrimination that is
    pervasive in America, the provisions of the Act shall be flexibly
    construed to advance its remedial purposes. The elements of the
    definition of ``disability'' shall be interpreted broadly to encompass
    within the Act's protection all persons who are subjected to
    discrimination on the basis of disability. The term ``discrimination''
    shall be interpreted broadly to encompass the various forms in which
    discrimination on the basis of disability occurs, including blanket
    exclusionary policies based on physical, mental, or medical standards
    that do not constitute legitimate eligibility requirements under the
    Act; the failure to make a reasonable accommodation, to modify policies
    and practices, and to provide auxiliary aids and services, as required
    under the Act; adverse actions taken against individuals based on
    actual or perceived limitations; disparate, adverse treatment of
    individuals based on disability; and other forms of discrimination
    prohibited in the Act.
        ``(f) Regulations implementing the ADA Restoration Act.--Not later
    than 180 days after the date of enactment of The ADA Restoration Act of
    2004, the attorney general, the Equal Employment Opportunity
    Commission, and the Secretary of Transportation shall promulgate
    regulations in an accessible format that implement the provisions of
    the ADA Restoration Act.
        ``(g) Deference to regulations.--Duly issued federal regulations
    for the implementation of the ADA, including provisions implementing
    and interpreting the definition of disability, shall be entitled to
    deference by administrative bodies or officers and courts hearing any
    action brought under the Act.''
        (i) Attorney's fees.--Section 505 of the ADA of 1990 (42 U.S.C.
    12205) is amended by redesignating the current textual provision as
    subsection (a)--In general, and adding additional subsections as
    follows:
        ``(b) Definition of prevailing party--The term `prevailing party'
    includes, in addition to a party who substantially prevails through a
    judicial or administrative judgment or order, or an enforceable written
    agreement, a party whose pursuit of a nonfrivolous claim or defense was
    a catalyst for a voluntary or unilateral change in position by the
    opposing party that provides any significant part of the relief sought.
        ``(c) Relationship to other laws----
        (1) Special criteria for prevailing defendants--If any other Act of
    Congress, or any ruling, regulation, or interpretation of the various
    administrative bureaus and agencies of the United States, or of any
    judicial or administrative rule, which addresses the recovery of
    attorney's fees, requires a defendant, but not a plaintiff, to satisfy
    certain different or additional criteria to qualify for the recovery of
    attorney's fees, subsection (b) shall not affect the requirement that
    such defendant satisfy such criteria.
        ``(2) Special criteria unrelated to prevailing--If an Act, ruling,
    regulation, interpretation, or rule described in paragraph (1) requires
    a party to satisfy certain criteria, unrelated to whether or not such
    party has prevailed, to qualify for the recovery of attorney's fees,
    subsection (b) shall not affect the requirement that such party satisfy
    such criteria.''
                Section 4.--Effective Date.
        This Act and the amendments made by this Act shall take effect upon
    enactment and shall apply to any case pending or filed on or after the
    date of enactment of this Act.
                                    endnotes
        \1\ Courts Continuing Narrow Interpretation of ``Disability,'' Case
    Study Shows, DISABILITY COMPLIANCE BULL. Mar. 27, 1997, at 10. See
    also, Amy L. Allbright, ABA Special Feature: 2003 Employment Decisions
    Under the ADA Title I--Survey Update, 28 MENTAL & PHYSICAL L. REP. 319,
    320 (2004) (``A clear majority of the employer wins in this survey were
    due to [the] employees' failure to show that they had a protected
    disability.'').
        \2\ 42 U.S.C. Sec.  12101.
        \3\ National Council on Disability, Equality of Opportunity : The
    Making of the Americans with Disabilities Act at 184 (1997).
        \4\ Statement by Vice President Al Gore, December 14, 1998, quoted
    in the Presidential Task Force on Employment of Adults with
    Disabilities, Working on Behalf of Americans with Disabilities:
    President Clinton and Vice President Gore: Goals and Accomplishments at
    17.
        \5\ George W. Bush, Presidential Proclamation on the Anniversary of
    the Americans with Disabilities Act, 2002 ( July 26, 2002 ).
        \6\ NCD, Promises to Keep: A Decade of Federal Enforcement of the
    Americans with Disabilities Act at 1 (2000).
        \7\ NCD, Voices of Freedom: America Speaks Out on the ADA at 26
    (1995).
        \8\ NCD, Voices of Freedom: America Speaks Out on the ADA at 26
    (1995).
        \9\ George W. Bush, Presidential Proclamation on the Anniversary of
    the Americans with Disabilities Act, 2002 ( July 26, 2002 ).
        \10\ See Mary Crossley, ``The Disability Kaleidoscope,'' 74 Notre
    Dame Law Review 621, 622 (1999).
        \11\ Tudyman v. United Airlines, 608 F. Supp. 739 (C.D.Cal. 1984).
        \12\ H.R. Rep. No. 101-485, pt. 3, at 30 (1990).
        \13\ Morrow v. City of Jacksonville, 941 F. Supp. 816, 823 n. 3
    (E.D.Ark. 1996).
        \14\ See, e.g., Stone v. St. Joseph's Hospital of Parkersburg, 538
    S.E.2d 389, 400-402, 404 (W.Va. 2000), in which the Supreme Court of
    West Virginia, after acknowledging that the state law had been amended
    in 1989 to adopt the federal three-prong definition of disability,
    chose to reject the ``restrictive approach'' of federal interpretation
    of the definition, endorsing an ``independent approach * * * not
    mechanically tied to federal disability discrimination jurisprudence.''
    The court also cited a number of cases from other states that had
    interpreted the definition of disability more expansively than under
    federal nondiscrimination laws. Id. at 405 and n. 23. Likewise, in
    Dahill v. Police Department of Boston, 434 Mass. 233, 748 N.E.2d 956
    (2001), the Massachusetts Supreme Judicial Court embraced virtually
    every argument advanced by disability rights advocates that the United
    States Supreme Court had rejected in Sutton v. United Airlines, and
    ruled that mitigating measures should not be considered in determining
    whether an individual has a ``handicap'' under Massachusetts
    antidiscrimination law. According to the Dahill Court, the public
    policy underlying the antidiscrimination statute supported its
    interpretation that mitigating measures should be excluded, while
    embracing the Sutton standard would ``exclude[ ] from the statute's
    protection numerous persons who may mitigate serious physical or mental
    impairments to some degree, but who may nevertheless need reasonable
    accommodations to fulfill the essential functions of a job.'' Id. at
    240 and n. 10.
        \15\ See, e.g., Granovsky v. Canada, [2000] 1 S.C.R. 703, in which
    the Supreme Court of Canada expressly rejected the restrictive approach
    of the U.S. Supreme Court in Sutton v. United Airlines, noted the
    ``ameliorative purpose'' and ``remedial component'' of the disability
    nondiscrimination provision of the Canadian Charter of Rights and
    Freedoms, and adopted an approach in which the focus is ``not on the
    impairment as such, nor even any associated functional limitations, but
    is on the problematic response of the [defendant] state to either or
    both of these circumstances.'' The Court added that it was the alleged
    discriminatory action ``that stigmatizes the impairment, or which
    attributes false or exaggerated importance to the functional
    limitations (if any) * * *'' Similarly, in Quebec v. Canada, [2000] 1
    S.C.R. 665, the Supreme Court of Canada noted that ``[h]uman rights
    legislation is [to be] given a liberal and purposive interpretation,''
    and ruled, ``The objectives of the Charter, namely the right to
    equality and protection against discrimination, cannot be achieved
    unless we recognize that discriminatory acts may be based as much on
    perception and myths and stereotypes as on the existence of actual
    functional limitations. Since the very nature of discrimination is
    often subjective, assigning the burden of proving the objective
    existence of functional limitations to a victim of discrimination would
    be to give that person a virtually impossible task. Functional
    limitations often exist only in the mind of other people, in this case
    that of the employer.'' The Court ruled that ``a `handicap,' therefore,
    includes ailments which do not in fact give rise to any limitation or
    functional disability.''
        \16\ Some states, such as California and Rhode Island, have amended
    their disability nondiscrimination statutes to reject federal case law
    narrowing the scope of individuals protected. Others, such as
    Connecticut, New Jersey, and New York have never adopted the rigid and
    stringent concept of ``disability'' consisting of an ``impairment''
    which ``substantially limits'' one or more major life activities. For a
    discussion of state laws that have deviated from the restrictive
    federal model, see NCD's paper titled Defining ``Disability'' in a
    Civil Rights Context: The Courts' Focus on the Extent of Limitations as
    Opposed to Fair Treatment and Equal Opportunity. Paper No. 6 of NCD's
    Policy Brief Series: Righting the ADA Papers can be found at http://
    www.ncd.gov/newsroom/publications/2003/policybrief.htm.
        \17\ For example, the definition of disability provisions of
    Australia's Disability Discrimination Act of 1992 (4.(1)) and of
    Ireland's Employment Equality Act (1998) (2), both of which were
    adopted after the ADA was enacted, are framed in very broad terms that
    encompass not only a wide variety of currently existing conditions, but
    also include any condition that previously existed but no longer does,
    that ``may exist in the future,'' or that ``is imputed to a person.''
        \18\ H.R. Rep. No. 101-485, pt. 2 at 52 (1990).
        \19\ H.R. Rep. No. 101-485, pt. 3 at 28 (1990).
        \20\ Todd v. Academy Corporation, 57 F. Supp. 2d 448, 453-54 (S.D.
    Tex. 1999).
        \21\ In light of the courts' failure to appreciate and apply the
    social model of disability discrimination, NCD's Righting the ADA
    report suggests that the social model should be made explicit by
    incorporating it as an additional ADA finding as follows:
        Discrimination on the basis of disability is the result of the
    interaction between an individual's actual or perceived impairment and
    attitudinal, societal, and institutional barriers; individuals with a
    range of actual or perceived physical or mental impairments often
    experience denial or limitation of opportunities resulting from
    attitudinal barriers, including negative stereotypes, fear, ignorance,
    and prejudice, in addition to institutional and societal barriers,
    including architectural, transportation, and communication barriers,
    and the refusal to make reasonable modifications to policies,
    practices, or procedures, or to provide reasonable accommodations or
    auxiliary aids and services.
        Id. at 109.
        \22\ Robert L. Burgdorf Jr. ``Substantially Limited'' Protection
    from Disability Discrimination: The Special Treatment Model and
    Misconstructions of the Definition of Disability, 42 VILLANOVA LAW
    REVIEW 409 (1997).
        \23\ Id. at 534-536 (footnotes omitted).
        \24\ U.S. Commission on Civil Rights, Accommodating the Spectrum of
    Individual Abilities (1983), at p. 87.
        \25\ See, for example, National Council on Disability, The
    Americans with Disabilities Act Policy Brief Series: Righting the ADA,
    No. 5, ``Negative Media Portrayals of the ADA'' at http://www.ncd.gov/
    newsroom/publications/2003/policybrief.htm.
        \26\ Accommodating the Spectrum of Individual Abilities, p. 95, n.
    17).
        \27\ Richard K. Scotch, Models of Disability and the Americans with
    Disabilities Act, 21 BERKELEY JOURNAL OF EMPLOYMENT AND LABOR LAW 213,
    214-15 (2000).
        \28\ Linda Hamilton Krieger, Afterword: Socio-Legal Backlash, 21
    BERKELEY JOURNAL OF EMPLOYMENT AND LABOR LAW 476, 480-81 (2000).
        \29\ See, for example, National Council on Disability, The
    Americans with Disabilities Act Policy Brief Series: Righting the ADA,
    No. 5, ``Negative Media Portrayals of the ADA'' at http://www.ncd.gov/
    newsroom/publications/2003/policybrief.htm.
        \30\ National Council on Disability, Toward Independence, Appendix
    of Topic Papers (1986) at pp. A-22 to A-23.
        \31\ Righting the ADA at p. 109.
        \32\ Id.
        \33\ Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534
    U.S. 184, 194 (2002).
        \34\ H.R. REP. NO. 101-485, pt. 2, at 53 (1990).
        \35\ S. REP. NO. 101-116 at 24 (1989).
        \36\ Id.
        \37\ H.R. REP. NO. 101-485, pt. 2, at 53 (1990); S. REP. NO. 101-
    116 at 23-24 (1989); H.R. REP. NO. 101-485, pt. 3, at 30 (1990).
        \38\ S. REP. NO. 116, 101st Cong., 1st Sess. 24 (1989) (emphasis
    added).
        \39\ Id.
        \40\ Id.
        \41\ H.R. REP. NO. 101-485, pt. 2, at 53(54 (1990).
        \42\ H.R. REP. NO. 101-485, pt. 3, at 30 (emphasis added).
        \43\ Id. at 30(31.
        \44\ 29 C.F.R. ( 1630.2(o)(1)(ii) (1993). Similar definitions are
    provided for accommodations in the job application process and in
    regard to job benefits and privileges. 29 C.F.R. ( 1630.2(o)(1)(i)
    (1993) (``Modifications or adjustments to a job application process
    that enable a qualified applicant with a disability to be considered
    for the position such qualified applicant desires''); 29 C.F.R. (
    1630.2(o)(1)(iii) (1993) (``Modifications or adjustments that enable a
    covered entity's employee with a disability to enjoy equal benefits and
    privileges of employment as are enjoyed by its other similarly situated
    employees without disabilities.'').
        \45\ 29 C.F.R. 414(15 (app. to pt. 1630) (commentary on ( 1630.9)
    (1993).
        \46\ H.R. REP. NO. 101-485 pt. 2, at 65 (1990); S. REP. NO. 101-116
    at 34 (1989).
        \47\Id.
        \48\ Id.
        \49\ H.R. REP. NO. 101-485 pt. 2, at 66 (1990); S. REP. NO. 101-116
    at 35 (1989).
        \50\ 29 C.F.R. 414 (app. to pt. 1630) (commentary on ( 1630.9)
    (1993).
        \51\ Id.
        \52\ 29 C.F.R. 414 (app. to pt. 1630) (commentary on ( 1630.9)
    (1993); H.R. REP. NO. 101-485 pt. 2, at 66 (1990); S. REP. NO. 101-116
    at 35 (1989).
        \53\ 29 C.F.R. 414 (app. to pt. 1630) (commentary on (1630.9)
    (1993); H.R. REP. NO. 101-485 pt. 2, at 66-67 (1990); S. REP. NO. 101-
    116 at 35 (1989).
                                     ______

        Mr. Andrews. Thank you, and I am certain in the dialogue
    with the members there will be those opportunities.
        I thank each of the four of you for excellent testimony.
        Mr. McClure is not working as an electrician today at
    General Motors because the court found he wasn't disabled. That
    is the reason. A person with muscular dystrophy is not
    disabled. Mr. Fram, you have acknowledged that people who
    should have been protected by the law aren't, and that is a
    problem. I appreciate that. It is a good point for us to start
    our discussion. I want to explore the concerns that you have
    raised about the remedial measures in Mr. Hoyer's legislation.
        Your organization is thoroughly involved, you said, in
    training and teaching people how to comply with this law. Is
    that correct?
        Mr. Fram. Yes.
        Mr. Andrews. And you have done extensive writing. You said
    23 editions of your book on this subject?
        Mr. Fram. Yes.
        Mr. Andrews. That is very impressive, and I am sure that as
    part of that you have done extensive research on the case law
    interpreting the ADA and on similar statutes around the
    country. Is that correct?
        Mr. Fram. Mostly the ADA.
        Mr. Andrews. Okay. On page three of your testimony, you
    talk about the specter of people raising claims because of
    chipped tooth, the flu, broken finger. And you indicate that
    that is the plethora of litigation that would flow if Mr.
    Hoyer's bill were to be adopted. In my state of New Jersey for
    nearly four decades we have had a very broad definition of
    ``disability.'' It does not limit the definition by
    substantiality or any of the other criteria that you talked
    about. Are you aware of any cases brought under the New Jersey
    statute by someone who claims that a chipped tooth is a
    disability?
        Mr. Fram. I haven't researched the New Jersey statute.
        Mr. Andrews. Your answer is you don't know because you
    haven't researched it?
        Mr. Fram. The New Jersey statute.
        Mr. Andrews. Okay. California in 2000 adopted a very broad
    definition of ``disability'' that to my understanding does not
    have limitations based on substantiality. Are there any data
    that would indicate that there has been this flood of
    litigation from California?
        Mr. Fram. California actually still does have--it has to
    limit a major life activity. So they haven't totally dropped
    the----
        Mr. Andrews. But the California definition is much broader
    than the definition of ``disability'' in the federal statute,
    isn't it?
        Mr. Fram. Absolutely.
        Mr. Andrews. Well, there is one piece of data, and I wonder
    if you would dispute it, that the percentage of discrimination
    claims owing to disability in California is the same as it was
    in the total universe before this new definition. In other
    words, X percent of discrimination claims were based on
    disability before this law, and it is still about X percent.
        Now, if there was going to be this flood of litigation
    because of a broader definition, wouldn't disability claims
    make up a larger share of employment claims in California?
    Wouldn't that have happened?
        Mr. Fram. I honestly don't think there would be a flood of
    litigation. The problem is----
        Mr. Andrews. Contrary to what you just said?
        Mr. Fram. I don't think there would be a flood of
    litigation, but what there would now be is a brand new
    responsibility for employers to have to provide reasonable
    accommodation to somebody who comes in and says, ``I have a
    stomach ache; I don't want to go to that meeting because I have
    a stomach ache.'' Or, ``I need time off because of my chipped
    tooth.''
        Mr. Andrews. But your position, I think, then assumes that
    employers would just do that, not dispute it and there wouldn't
    be more claims resulting in court. Isn't that a little counter-
    intuitive?
        Mr. Fram. Smart employers do the right thing. The question
    is, would this create a federal requirement that an employer
    has to let somebody out of a meeting because of a stomach ache?
        Mr. Andrews. I guess I just respectfully disagree with your
    argument. It seems to me that your premise today is that a
    broader definition of ``disability'' under federal law will
    create more claims. And we have a broader definition of
    ``disability'' under California law and it didn't.
        Mr. Imparato, do you have some comment on what California
    and New Jersey have done?
        Mr. Imparato. Well, I appreciate the point that you are
    making. The ADA definition was taken from the Rehab Act. A
    number of states have had broader definitions of
    ``disability.'' But the point is that the ADA creates a floor.
    What we are trying to do with the ADA Restoration Act is
    reestablish a floor that protects people with epilepsy,
    diabetes and a whole host of conditions that have been
    interpreted out. We are not aware of more litigation or
    percentage-wise more litigation in states like New Jersey,
    California, Maine, Washington state, that have broader
    protection.
        Mr. Andrews. Mr. McClure, what is it that General Motors
    needed to do for you so that you could have done that job as an
    electrician really well? What did they need to do?
        Mr. McClure. They wouldn't have had to buy nothing. They
    already had ladders there. They had all the lifts, everything.
    All they had to do was put me to work.
        Mr. Andrews. Didn't they actually test you, sort of on the
    job, to do the job you were supposed to do and you passed the
    test and got the job?
        Mr. McClure. Yes, sir.
        Mr. Andrews. Sounds pretty reasonable to me.
        I thank the witnesses, and I would at this time turn to the
    ranking member, Mr. McKeon, for questioning.
        Mr. McKeon. Thank you, Mr. Chairman.
        First, Mr. Fram, did you have something more that you
    wanted to add about the response to Mr. Andrews's question
    about New Jersey?
        Mr. Fram. No. I did want to add that, of course, there are
    all these other parts as well, like the disability-related
    questions in medical exams. I mean, in the real workplace, what
    supervisor doesn't say to an employee, ``how did you break your
    leg,'' if the person comes in. And I don't think there can be
    any dispute that changing the definition to mean ``any
    impairment'' would make a question like that flatly illegal.
        Now, question--Is that going to lead to litigation? Who
    knows whether it is going to lead to litigation. So my point
    is, whether or not there is going to be a plethora of
    litigation, should it be a federal requirement, should it be a
    federal prohibition that a supervisor couldn't say, ``do you
    have a cold.'' Is it a federal requirement that an employee
    would have to give somebody with an ear ache time off.
        Now, of course, there is already the Family and Medical
    Leave Act which covers serious health conditions. This would
    essentially make the Family and Medical Leave Act irrelevant
    for half of it, anyway--the part about the person's serious
    health condition.
        Mr. McKeon. I would like to ask--I am not an attorney, and
    I know Mr. Andrews is. I know several of you are, and you could
    probably debate this a long, long time. But what I would like
    to ask is, I mean it seems incredulous to me that Mr. McClure
    could be told they can't hire him because he has a disability
    that precludes him from doing the job, and then when he sues on
    that basis, they say, no, you don't have a disability.
        How would you gentlemen, as attorneys, fix that without
    having some unintended consequences that would go so far as
    some of the things you are talking about, Mr. Fram?
        Mr. Burgdorf. I think you fix it by going with the original
    legislative history, which says that Sutton is wrong. The
    Supreme Court was wrong in Sutton and Murphy and Kirkingburg.
        Mr. McKeon. My understanding is, not being an attorney,
    that the Supreme Court is the final word on the law.
        Mr. Burgdorf. But you get to make the law. [Laughter.]
        Mr. McKeon. So we write a law, and I have seen unintended
    consequences come from laws that we have passed. So you would
    suggest we rewrite the law and you would have some suggestions
    as to how we would do it without incurring those unintended
    consequences. Dr. Burgdorf?
        Mr. Burgdorf. I think it is a great question. As I
    understand Mr. Fram's testimony, he is sympathetic and
    understanding about the issue of mitigating measures, but he
    would like to limit the correction to that. For many people,
    including Mr. McClure, it is not going to help him. This is not
    a mitigating measures case, and many of the cases are not
    mitigating measures cases.
        Mr. McKeon. How would you fix it?
        Mr. Burgdorf. That is the proposal that I am trying to
    explain and defend, H.R. 3195. I think it is a very good fix.
        Mr. McKeon. It is a perfect bill and no problems with it?
        Mr. Burgdorf. No, not at all. In fact, if we can't get
    people like you to agree or to buy into the approach that the
    bill is proposing, then we are not going to get anywhere. But I
    think properly explained, it is a good bill. Could it use some
    tinkering? Sure.
        Mr. McKeon. Let me tell you my concern. We have had some
    bills that have come before us in this committee last year
    where we really tried to make some little tinkering changes.
    For instance, one of them was card check. We had 15 amendments,
    and I think some of them were very good amendments. We did not
    get one Democratic vote. We did not change one word in that
    bill.
        Now, it is not becoming law. They can't get it through the
    Senate and the president wouldn't sign it. But my concern is,
    given the environment that we have here now--I mean, to me it
    is ludicrous that we can't fix a problem like this, that my
    real concern is as we go through this process, this bill will
    go exactly the way it is written right now, even though you
    would say it is probably not perfect, and you are here as a
    witness for the bill. You would maybe make some tinkering
    changes. I would like to know what those are because I would
    like to offer them as an amendment when we get to that process.
        I would hope that there would be some real working
    together, rather than just saying, oh, you know, this is on a
    fast track and it is going to go and that is the way it is. And
    then what will happen is it probably will not become law, and
    we will end up with more of Mr. McClure's situations, and I
    don't think any of us want that.
        I don't think any of us want to have that kind of problem.
    He should be working now, as far as I am concerned, for GM. It
    is his life-long ambition. He could do the job. And to be told
    that he can't do it because he is disabled, and then when he
    takes it to court, the highest court in the land turns it down
    because he is not disabled. It is crazy.
        But I have real concern that there won't be a desire to
    work together to really tinker around the edges to make it--I
    don't think we would get a perfect bill--but to make it a
    better bill.
        Mr. Burgdorf. One of the things that I have always been
    surprised and delighted about is how very bipartisan the ADA
    and similar legislation has been in the Congress. The ADA
    legislation passed every one of the five substantive committees
    and on the floor, never by a vote of less than 90 percent in
    favor. It is incredibly bipartisan.
        Mr. McKeon. I would still like to have your suggestions to
    tinker around the edges to make it better, and then see if we
    are able to do that.
        Mr. Andrews. The gentleman's time has expired.
        I would say to my friend, the ranking member, that you and
    Mr. Miller worked together with Mr. Castle and Ms. Woolsey and
    others, and Mr. Kildee, to produce the Head Start bill that I
    think was excellent. We all worked together to produce a
    genetic discrimination bill which passed the House
    overwhelmingly. It has run into some issues in the Senate, but
    I think we can work together on that. And we can do the same,
    and I hope that we would on this.
        Mr. McKeon. Those are some great examples. I could list a
    whole bunch that----
        Mr. Andrews. Sure. I would say for the record that the only
    perfect bills are those reported out by the Health
    Subcommittee. [Laughter.]
        The chair recognizes the gentleman from Michigan, Mr.
    Kildee, for 5 minutes.
        Mr. Kildee. I thank the chairman. I thank him for having
    this hearing.
        You know, I have held many jobs in my life. I have been a
    letter-carrier. I have been a Latin teacher. I have been an
    electrician. I have been a lawmaker. As a matter of fact, the
    job that is probably the longest in my life has been lawmaker,
    for 32 years. But I was an electrician, so I know quite a bit
    about the responsibilities of being an electrician.
        Let me--and Mr. McClure you may answer this, too--but I
    will address it to Mr. Imparato and Mr. Burgdorf. It seems that
    this is really, and we often overuse the word ``catch-22,'' but
    it is kind of a catch-22 situation really situation here. It is
    a classic example of catch-22. How would H.R. 3195 address this
    problem? I mean, this man's life--he sold his house, moved to
    Texas, and to have this absurdity, that has led to a great
    injustice, afflict him? Maybe Mr. Imparato and Mr. Burgdorf, if
    you could?
        Mr. Imparato. Thank you for that question.
        First, just on the catch-22 issue, you are exactly right.
    When you have the kind of strict standard that the Supreme
    Court has created around what is a disability, you end up
    having to introduce a lot of evidence to meet that narrow
    threshold that then can and will be used against you on the
    issue that matters, which is whether you are qualified for the
    position. And anything that you introduce to show that you are
    qualified for the position can and will be used against you on
    whether you are disabled enough to have a civil right.
        So you are exactly right. It is a catch-22. And it is not a
    catch-22 that existed under the Rehab Act, which was the
    definition that Congress was modeling the ADA after.
        H.R. 3195 would fix this problem by getting past the issue
    of whether he is in the protected class very quickly. He has an
    impairment, and you quickly get to the issue that matters,
    which is, was he qualified for the position in question? To the
    extent he was asked to do things that require accommodation,
    were there reasonable accommodations that would allow him to do
    the essential functions of the job? And if the employer was not
    justified in denying him the position, the employer would lose.
    But we never reached that issue because so much time was spent
    trying to establish the existence of a disability.
        So I think the catch-22 term is exactly the right term for
    where the courts have brought us under the ADA.
        Mr. Kildee. Mr. Burgdorf?
        Mr. Burgdorf. The only thing I would have to add to that is
    sometimes it is worse than a catch-22. Even if there were no
    qualified concept in the ADA, you can't get past the proving
    the disability. People have a very difficult, impossible time
    meeting that burden. The fact is, I think the underlying
    problem is a mis-assumption about disability, that a person
    really is only disabled if somehow the condition has really
    messed up their life. And most of us who have disabilities try
    to deal with our lives and have successful lives and go on to
    live what people would call ``normal lives.''
        Then, when we are shocked to find out somebody is
    discriminating against us, we want to be relieved from that. We
    want to have the ADA to protect us. That idea that you have to
    be really messed up is what the ADA definition has turned into.
    It is not what Congress intended. It is not what President Bush
    thought he was signing. It is not what those of us who worked
    on the National Council on Disability's proposal that was
    before, and was ultimately enacted by Congress and what we were
    trying to do.
        We were very clear that if you were discriminated against
    based on a condition, that was enough. You have proven what you
    have to prove, and then we can argue about whether it was
    justified or not. We are not saying people with disabilities
    are going to win all their cases, but they ought to at least
    get in the courthouse door.
        Mr. Kildee. I was present when President George H. Bush
    signed this into law. It was a joyous occasion, and he was
    expansive in his enthusiasm, and I think expansive in his idea
    of how this should be interpreted. To have Congress pass a law
    trying to find a reasonable remedy, a president signing it with
    enthusiasm--this was truly a bit of strong bipartisan work
    within the Congress, and the president joyfully signing this
    bill.
        And the court, in kind of a grand isolation, saying this
    didn't apply to Mr. McClure's case was just, to my mind--
    sometimes law should be refined common sense, I think. I don't
    think it was very refined or very common sense in this instance
    here.
        Mr. Imparato. Can I say one more thing?
        Mr. Andrews. Very briefly.
        Mr. Imparato. Briefly, I just--in terms of the unintended
    consequences, I just want to point out that whatever we do to
    try to keep the definition somewhat narrow can also have
    unintended consequences. That is why any PD feels that H.R.
    3195 is a simple straightforward way to fix this problem. It
    came from a lot of work from the National Council on
    Disability, and any of these efforts to tinker with it, I would
    just encourage us to worry about unintended consequences on the
    other side, where the courts will jump on one word like they
    have under the ADA, and we are back to having to come back and
    fix a new problem that the courts have created.
        Mr. Andrews. The gentleman's time has expired.
        Mr. Kildee. Thank you very much, Mr. Chairman.
        Mr. Andrews. The chair recognizes the ranking member of the
    subcommittee, my friend from Minnesota, Mr. Kline, for 5
    minutes.
        Mr. Kline. Thank you, Mr. Chairman.
        Thank you, gentlemen, for being here and for your
    testimony.
        I think what we are seeing is that there is widespread
    agreement I believe on both sides of this aisle that we need to
    change the law so that we don't have an incident such as we
    have seen with Mr. McClure. I think, as Mr. McKeon and others
    said, that is absurd. But I am concerned that in our effort to
    make sure that doesn't happen to Mr. McClure or someone like
    that, that we don't have those unintended consequences.
        When the ADA was enacted in 1990, one of the first findings
    included was that ``43 million Americans have one or more
    physical or mental disabilities.'' So I am wondering what the
    number would be. So let me start, Mr. Fram, I have about three
    questions for you, and we will go as quickly as we can.
        What do you think the language as it is now in this bill--
    what would that number 43 million be?
        Mr. Fram. Well, it would have to be 350 million, because
    every single one of us has an impairment. I mean, every one of
    us has either a vision problem--we don't have perfect vision--
    or we have had the flu. Because remember, this covers actual
    disability regarded as impairment, which is----
        Mr. Kline. I appreciate the answer, but again, the original
    intent, which the majority leader talked about, was to cover 43
    million. And now in your interpretation, it is 350 million or
    whatever the current population of the United States is, and
    that was clearly not the original intent. So it raises the
    question, if every worker has some form of disability, what
    does that do for the workers who would truly need the
    protection--Mr. McClure's example?
        Mr. Fram. I think it would certainly limit an employer's
    resources. Everybody agrees, I think everybody on this panel
    would agree that Mr. McClure, under what I am proposing in
    terms of reversing the Sutton case, that he would be covered.
        I respectfully disagree with Dr. Burgdorf because I think
    reversing Sutton would lead to Mr. McClure being covered
    because you would be looking at somebody without mitigating
    measures, which include behavioral modifications, and that was
    the reason the lower court excluded him, because he could reach
    certain heights if he used a ladder. At least that was my
    reading of the case, but if you look at him without behavioral
    modifications, he would be covered.
        But what it would wind up meaning, if everybody was
    covered, that the person who needs a modified schedule, for
    example, because she has breast cancer, and if that modified
    schedule has already been given to somebody who has the flu, it
    might not be available for her. So it would restrict what an
    employer could do for people who have serious conditions.
        Mr. Kline. And have exactly the unintended consequence
    which we are trying to avoid here. We are trying to make sure
    that Americans with disabilities have the protection, and it
    waters it down so that every American is there, it simply will
    not be able to do that. While I have great faith in my chairman
    and all lawyers who look at these things, it is our job to get
    this language right, so it is not left to continuing battles in
    the courts over the definition, a concern that all of you have
    expressed. We really do need to get this right.
        Continuing again, Mr. Fram. In your testimony, you noted
    that H.R. 3195, the bill under consideration here, changes the
    burden of proof with respect to claims of discrimination. Can
    you take some time here to expand on that point? How is the
    burden of proof allocated under other civil rights statutes?
    How does that differ from H.R. 3195?
        Mr. Fram. There is something called the McDonnell-Douglas
    standard. That is where employees, as a prima facie case, have
    to show they are in the protected group and that they are
    qualified to do the job. And what this bill would do is to
    change it in the ADA context to mean the employer now has the
    burden of showing that the person cannot do the job.
        I don't think from a practical perspective that makes
    sense, because what courts have done--and honestly, I haven't
    seen where there has been a problem with this, which is why I
    am surprised that it is in the bill. What courts do is they say
    to employers, ``you have the burden of showing what the
    essential functions are,'' and then they say to the individual,
    ``you have the burden of showing you can do those essential
    functions.''
        That is allocating the burdens to the parties who have
    access to the evidence. This bill would make it the opposite of
    McDonnell-Douglas.
        Mr. Kline. Thank you.
        My time is just about to expire, but very quickly if I
    could ask the flanking attorneys here what they think that 43
    million would look like under this bill--just a shot.
        Mr. Burgdorf. I would like to try to answer it because the
    Supreme Court quoted my law review article in the Sutton case
    about that issue as the explanation, and then completely
    misunderstood and misused it. The 43 million figure was put
    in--originally it was a 36 million figure--it was put in the
    National Council on Disability draft bill, and was proposed and
    put into its report, On The Threshold of Independence. And it
    was intended not as who is covered by the ADA. There is nowhere
    in the ADA or in that report that says that is how many people
    are covered by the ADA. It was trying to give an order of
    magnitude estimate of people with actual disabilities.
        The definition has three prongs--actual, record, and
    regarded as. No one had ever thought that 43 million people
    were who were protected by the ADA, and that is important
    because----
        Mr. Kline. Excuse me. What do you think that number would
    be--350 million?
        Mr. Burgdorf. The ADA would under this legislation and
    always has protected all Americans--not that all Americans have
    a right to bring a suit. They are protected. It protects
    associates of people with disabilities. It protects who
    regarded as who are just mistakenly thought to have a
    condition. Yes, all Americans are protected. Only some of them
    are going to be subjected to discrimination and therefore can
    go to court to do anything about it.
        Mr. Kline. Thank you, professor.
        Mr. Andrews. Thank you, Mr. Kline.
        The chair recognizes the gentleman from Iowa, who has not
    only policy insight, but personal insight on these issues, Mr.
    Loebsack, for 5 minutes.
        Mr. Loebsack. Thank you, Mr. Chairman.
        Another point, if I may elaborate on a personal nature on
    all this, but at this moment in the interest of time, I will
    refrain from that--but I want to thank all the panelists for
    being here today as well. With the chair's permission, I do
    want to enter a brief statement into the record on this matter.
    I won't read that at the moment.
        I do want to just address an issue related to veterans,
    because you do say, Mr. Imparato, in your statement that you
    submitted for the record, on pages 9, 10, and 11, you refer to
    veterans who have returned and will be returning from the wars
    in Iraq and Afghanistan--and not just those veterans, but
    veterans of previous wars, too, who may be suffering from post-
    traumatic stress disorder.
        I am on the Armed Services Committee. As a freshman, I have
    been fortunate enough, I guess if you can call it that, to go
    to Iraq twice, and I just went to Afghanistan recently. We have
    a Veterans Administration hospital in my district in Iowa City,
    and I have visited that a number of times, as well as Walter
    Reed.
        If you could just elaborate on your reference to TBI and
    PTSD in your testimony, and enlighten us a little bit on that.
    But before you do that, I do want to express my desire, too, to
    make sure that we come together in a bipartisan way to solve
    this problem. I am really thankful to Ranking Member McKeon for
    his comments, and Mr. Kline as well. I think everybody here
    wants to resolve this problem, and it is a question of how we
    are going to do it.
        But if you could elaborate, and that is really the only
    question I have. Maybe Mr. Burgdorf might want to comment as
    well, if he has any thoughts. Thank you.
        Mr. Imparato. Sir, thank you for that question, Congressman
    Loebsack. The veterans who are returning from Iraq and
    Afghanistan are going to have the same definition of
    ``disability'' that we are talking about here applied to them
    if they experience employment discrimination. The veterans who
    are recovering, who are functioning well either at home or in
    the workplace will have that used against them on the issue of
    whether they have civil rights protections.
        This has dramatically affected people with psychiatric
    disabilities. So veterans that have post-traumatic stress
    disorder, depression, anxiety disorders--if they are able to
    control those well, they are likely to be found not to have
    disabilities for purposes of the ADA.
        It can also affect people with brain injuries. Again, if
    they are able to manage their disabilities and function well at
    home and at work, lots of courts are likely to interpret what
    the Supreme Court has done in a way that leaves them out. I
    would argue that would be true even if we fix the mitigating
    measures issue. This issue is bigger than simply fixing the
    mitigating measures.
        I agree with Professor Burgdorf that Carey McClure's
    situation would not be addressed by simply fixing mitigating
    measures. It was the Toyota v. Williams decision that really
    severely restricted what constitutes a substantial limitation
    and a major life activity. The court said that they had to be
    activities that were of central importance to most people's
    daily lives. That was invented by the court. That was not the
    standard from Congress. It was not the standard under the Rehab
    Act.
        So again, veterans coming back--we want them to have full
    lives. We want them to participate fully in all aspects of
    society, and we want them to have civil rights protections if
    they experience discrimination. The veterans who are
    functioning at the highest level are the ones who are most at
    risk of not having civil rights protections under the ADA.
        Mr. Loebsack. Yes, Mr. Burgdorf?
        Mr. Burgdorf. The only thing I would add is that win or
    lose, the focus is on the wrong thing. These people with these
    conditions are going to have to submit themselves to an
    inquisition into the details of their disorders. When they
    argue that they are being discriminated against--the employer
    said that this is significant enough that I won't let you have
    the job, or I am going to fire you. Focusing on the details of
    their condition is invasive, unnecessary, and it is the wrong
    question.
        Mr. Loebsack. In just the little bit of time left. I mean
    obviously it is difficult enough to serve ordinary folks who
    don't go off and fight for our country to be going through this
    process. I think it is far worse for those who are putting
    their lives on the line to come back and face these kinds or
    problems.
        Thank you very much for your response. I appreciate it, and
    I yield back the rest of my time. Thank you.
        Mr. Andrews. Thank you. Mr. Sarbanes.
        Mr. Sarbanes. Thank you, Mr. Chairman, and welcome to the
    panel. This is fascinating. Welcome, Mr. Imparato. We have
    survived a number of piano recitals together.
        I am just fascinated by the court's mischief in this area,
    and how they have managed a 180-degree turnabout in terms of
    what was intended with the original legislation. I view the
    removal of the ``substantial limitation'' component, the
    definition, as trying to neutralize that opportunity for
    mischief in some ways and widen the ledge of protection, again,
    in ways it can't be chipped away at so much that it just
    completely gives way.
        I assume that once that component is removed, the
    ``substantial limitation'' piece of it--that the court will set
    to work on the threshold definition of ``impairment.'' I would
    be curious, Dr. Burgdorf, on what you think they will do there.
    And then if you could expand beyond and take me through the
    chipped tooth scenario, so I can understand how much that is a
    red herring, which I view it as, or not. I mean, how does the
    chipped tooth case get started, and how does it proceed along
    the line?
        Mr. Burgdorf. What none of us has mentioned today is that
    H.R. 3195 adopts a definition of ``impairment'' that is based
    upon existing regulations that as far as I know, no one on
    either side of any issue has argued is not valid. It goes back
    to the original section 504 regulations. It requires a
    physiological disorder, which is medical terminology. It is
    not--I hesitate to disagree with my friend, Mr. Fram--but it
    doesn't apply to things like baldness. I would think a person
    would have an incredibly hard time arguing that a chipped tooth
    is a disorder, any more than my ugly face is an disorder.
        These are attributes of people. They are not disorders. And
    there is no precedent anywhere that I have ever heard of, and I
    have written my big fat book about the meaning of the
    definition of ``disability,'' too, and I have never heard of a
    chipped tooth case. I don't think that is a valid concern. I
    think maybe Mr. Fram should consider being a law professor,
    because we spend a lot of time dreaming up weird hypotheticals.
    I think that that is all this is. It is a red herring.
        In fact, many of the examples that are used go toward the
    same issue, which is that people have to have an impairment.
    That is defined. And if people want a reasonable accommodation,
    they have to show that the impairment prevents them from doing
    a job task. That is what the EEOC regulations have always said.
    Reasonable accommodation is not a wish list for people with
    disabilities. It is designed for a purpose. It is to remove
    something that is keeping that person from performing a job. A
    person with a cough is ordinarily not going to be able to show
    that.
        The bigger problem is that employers get to pick what they
    think is serious, and then throw people out of the workplace.
    At that point, we would like to say they have discriminated
    against a person. That person is entitled to file a claim. They
    may not win the claim, but they can file the claim. That is
    what H.R. 3195 does, and I am very comfortable in saying that
    it is not going to lead to all these horrible weird
    consequences.
        Mr. Sarbanes. Do you want to respond to that?
        Mr. Fram. I think it is just not correct. ``Impairment'' is
    very broad. I have cited cases in the written testimony where
    courts have said things like a sprained knee, erectile
    dysfunction, tennis elbow--all of these things are impairments.
    What keeps them from being covered disabilities is that they
    don't substantially limit major life activities.
        I would also disagree with Mr. Imparato that major life
    activity has been a great problem, because courts have been
    very, very broad in terms of what our life's major activities
    are, including things like sex, which courts have said are
    major life activities. So it doesn't have to relate to the job.
        Mr. Sarbanes. In that case, in the chipped tooth case, does
    litigation begin with an employer discriminating based on the
    chipped tooth? That is what I am asking.
        Mr. Fram. I don't think it would begin with that. It would
    be if the person says ``I want time off,'' and I am entitled to
    time off under federal law, to go get my tooth fixed.
        Mr. Sarbanes. It just strikes me that those are implausible
    starting points for the litigation that you are raising the
    specter of.
        I have run out of time. I just wanted to say to you, Mr.
    McClure, thank you for your testimony. I loved your quote where
    you said that the reasonable accommodation that could have been
    given to you would have simply been to put you to work. So
    stick with it. Thank you.
        Mr. Andrews. Thank you, Mr. Sarbanes.
        The chair is pleased to recognize my friend from New
    Jersey, Mr. Payne, for 5 minutes.
        Mr. Payne. Thank you very much.
        Let me thank the panel for coming. I had the opportunity to
    be involved when the original ADA legislation was passed, and
    went around with Justin Dart. He was really quite a person. He
    invited the committee to Houston, Texas in the late 1980s. It
    was interesting, as you know, Houston has a large number of
    disabled people because the land is relatively flat and in the
    old days before mechanized wheel chairs, it made it a lot
    easier. The weather was better. You didn't have snow. So there
    were a lot of things that made it more of a natural place where
    people with a disability would go.
        But it was interesting--Justin was very clever. He invited
    the committee to a baseball game, the Houston Astros or
    something, and of course you would probably have a violation
    today--the ticket only cost about $10, but you know, with the
    new laws you can't take a ticket. Anyhow, what he did, though,
    was we went to the area where he got tickets for people that he
    knew, and it was in the handicapped section. I think he did it
    cleverly because it was the worst place in the stadium. It was
    stuck up somewhere under some beams where you couldn't even sit
    straight and you couldn't hardly see the field. It was just a
    horrible situation.
        However, evidently, you know, when people did public
    accommodations, they made it, well, let us throw this little
    space up in the corner in the dark in the back for those
    people, you know, and they ought to be glad we got a little
    place. So I think it was a very interesting, subtle way that he
    had to do this thing.
        The other thing I remember clearly was, you know, some of
    the, particularly the Greyhound Bus Company, said, oh, we are
    going out of business and there won't be another Greyhound bus
    that will be able to stay on the road because the cost is going
    to be enormous and we can't afford it and all that. Of course,
    you know, Greyhound buses kept running ever since. I don't know
    if they are still running, but ADA certainly did not put them
    out of business.
        And also this question about the ramp, when people said,
    ``we will try to do a ramp if we can.'' This was talked about.
    The sky was falling or businesses were going out of business--
    we can't afford to do it. And you found that the average ramp
    at a little place, at that time, it cost about $50 to put in.
        So I think that we find ourselves creating much more of a
    hysteria when we try to correct injustices than it is really
    worth. I would hope that we--and I know Mr. McKeon talked about
    opening up and people with real disabilities won't be able to
    be serviced because you are going to have so many additional
    folks, so that is why we shouldn't do this. Well, I think that
    water seeks its own level. I think that if we make the
    adjustments, we will be able to handle it like we did before.
    If we need more resources, then we should simply go about
    getting more resources.
        I just would like to once again commend you, Mr. McClure,
    for coming and telling us your story. In your opinion, do you
    think you could have done the job just as well as any other
    electrician?
        Mr. McClure. I was doing the work when I went there, and I
    was doing the work after I left there.
        Mr. Payne. As a matter of fact, I have noticed in some
    instances that working with some people I worked with, I
    actually was sort of a plant director at a small plant. We had
    about 40 employees. So the forklift operator was deaf, so they
    said, ``you can't hire Leon. You know, he can't hear.'' I said,
    ``well, he can drive the forklift all right, and he is very
    careful. It is going to be up to the employees, as they should
    anyway, to be sure that they observe the safety regulations.''
    If you back up, it makes noise. If you go forward, you can see
    it.
        And don't you know that our record on safety so far as the
    forklift was better than it was ever because everyone knew
    that, you know, many times people will yell at the forklift
    operator to say ``hey, I am here'' or something. So since they
    knew that Leon couldn't hear, they had to make sure that they
    were out of the way. And everybody was extra careful because
    you couldn't say, ``well, he didn't hear me.'' It worked out
    perfectly. We had the best safety record. He did the job
    fantastically.
        So if you work with people that have disabilities, I think
    that you find, in my opinion, that you even get an employee who
    really puts more into the effort. They work hard. They really
    do, in my opinion, more to show that they are just as equal as
    a person without a disability. So I think it was General
    Motors' loss certainly.
        I guess I didn't really get a chance to ask my question,
    but I did want to reflect on that.
        Thank you very much, Mr. Chairman.
        Mr. Andrews. Thank you, Mr. Payne.
        The chair recognizes the gentleman from South Carolina, Mr.
    Wilson, for 5 minutes.
        Mr. Wilson. Thank you, Mr. Chairman.
        Thank all of you for being here today.
        I particularly am happy to receive additional information
    about the Americans with Disabilities Act. A dear friend of
    mine, actually my campaign chairman, Landon Whitehead, was
    present at the White House when the bill was signed. He has
    been a champion in our state for persons with head injuries. So
    over the years, I am really grateful for what has been done and
    can be done.
        Additionally, my late brother-in-law was a victim of a
    sniper at Okinawa, and was in a wheelchair for the balance of
    his life. I know it would have been so wonderful if he could
    have had the benefits that have come legitimately from this
    law. I thank all of you for being here.
        Mr. Fram, a question for you. Many advocates have argued
    that claims of discrimination under the ADA should be treated
    exactly the same as, say, claims of race or sex discrimination
    under Title VII, or claims of age discrimination under the Age
    Discrimination in Employment Act. That notion has appeal,
    particularly if the ADA is identical in scope to Title VII and
    the Age Discrimination Act. Is that the case? If not, can you
    tell us how does the ADA differ from other civil rights laws?
        Mr. Fram. Well, that is exactly the problem that I have
    been pointing out, is that the ADA is different from Title VII,
    not in the general discrimination part, because it would be
    easy if you just said you can't discriminate against somebody
    because they have an impairment. That is easy. The hard part is
    that the ADA also requires reasonable accommodation.
        So the ADA puts a federal requirement on an employer to
    reasonably accommodate, unless it causes an undue hardship. In
    this case, it would put that requirement on an employer who has
    somebody who has--I will get away from the chipped tooth
    example and use the flu. Nobody could dispute the flu is a
    disorder.
        So do you have to reasonably accommodate somebody with the
    flu? Would you have to provide a modified work station for
    somebody with a sprained ankle? Of course you have to provide a
    modified work station for somebody who has paraplegia, but for
    somebody with a sprained ankle--that would turn this into a
    federal requirement.
        The other things that it does--and I won't repeat myself
    with the medical examinations and inquiries--but that is a
    really serious part, that it prohibits disability-related
    questions of employees unless they are specifically about the
    job. Title VII doesn't do that.
        ADA also has certain insurance provisions. The EEOC has a
    guidance dealing with disability-based distinctions in
    insurance provisions. If disability equals impairment, that
    means a lot of policies that, for example, might differentiate
    between dental coverage and medical coverage, could be suspect
    under this law. So there is a lot of additional requirements
    that ADA imposes that Title VII does not.
        Mr. Wilson. Additionally, how does ADA address issues of
    safety in the workplace? Do you have any concern of how H.R.
    3195 might change that treatment?
        Mr. Fram. Well, the ADA has a provision dealing with direct
    threat--that an employer can only screen someone out if,
    because of his disability, he poses a direct threat, a
    significant risk of substantial harm. The problem that has come
    up in the courts over the past--really over the past year--has
    dealt with conduct issues and whether an employer can enforce
    its conduct rules.
        Specifically, there has been--even conduct rules concerning
    safety--there was a case out in the Ninth Circuit, which is
    generally the West Coast, that dealt with an employee who had
    bipolar disorder, who in the words of the court, the Ninth
    Circuit, said had engaged in violent misconduct in the
    workplace. This is a Ninth Circuit case. We are not talking a
    lower-level case. And the court said you had to provide
    reasonable accommodation to her.
        What is the accommodation you are supposed to give to
    somebody who engages in violent misconduct in the workplace? So
    in that sense, I think the ADA was not intended to interfere
    with an employer's right to have conduct rules concerning
    safety, but the way it has been interpreted by some courts, in
    the same way that we have been talking about some of the really
    conservative decisions, there are some decisions like this that
    say you might have to accommodate violent misconduct. That, in
    my opinion, would need to be corrected.
        Mr. Wilson. Again, I thank all of you for being here, and I
    yield the balance of my time.
        Mr. Andrews. I thank the gentleman for yielding.
        The chair recognizes the gentlewoman, the chairperson of
    the Workforce Standards Subcommittee, Ms. Woolsey, for 5
    minutes.
        Ms. Woolsey. Thank you, Mr. Andrews.
        First of all, I would like to recognize that Dr. King
    Jordan from Gallaudet University is here with us today.
        Mr. Andrews. Welcome, doctor.
        Ms. Woolsey. He brought reasonable accommodations, as you
    can see--his interpreters, and how important that is in order
    for him to do what he does, so he can hear what we are doing
    today. So there is a good example.
        You know, I am really thankful that we have brains like
    yours, Chairman Andrews, and many of the other brains that have
    spoken before me today that will talk about H.R. 3195 and the
    details, because I get all caught up in statements like chipped
    teeth and baldness and having the flu. I am a 20-year human
    resources professional. A person that has the flu is
    accommodated. You don't want them in the factory or in the
    workplace, period. That is human relations.
        Yes, indeed, every company has problem employees who try to
    take advantage of everything. That is the exception. It is not
    the rule, and it is something as a manager, a supervisor, a
    human resources person, you deal with. It has nothing to do
    with ADA. And when you, Mr. Fram, talked about accommodating
    baldness, that did it for me. [Laughter.]
        What does--I mean, you too are going to be middle-aged
    someday, men--what you do is, you know, you start losing your
    hair. What in the world would that have to do with anybody's
    job and any kind of accommodations? I mean, that threw me for a
    loop. That was a horrible example. If you are willing to tell
    me what you think would be a reasonable accommodation that
    would relate to your sitting here talking to us and being an
    expert in your own way, I would be glad to hear it, but I don't
    get it.
        Mr. Fram. Well, I completely agree with you that it should
    have nothing to do with the ADA, because the ADA should cover
    people with serious conditions, not somebody with a sprained
    ankle. Now, in the workplace, of course, I would never ask for
    accommodation because of my hair impairment.
        Ms. Woolsey. I hope not. [Laughter.]
        Mr. Fram. Some people find it nice. [Laughter.]
        Mr. Andrews. We are not going any further on that.
    [Laughter.]
        Mr. Fram. The sprained ankle, though, if somebody were to
    say, ``I want a modified work station because of my sprained
    ankle,'' the question would be: Is that person entitled to this
    as a federal mandate, entitled to a modified work station
    because of a sprained ankle? And that can't be what Congress
    intended.
        Certainly, it intended to cover people who have paraplegia
    or a veteran returning home with no legs. Of course, it is
    intended to cover that. But is it intended to cover somebody
    with a sprained ankle or the flu?
        Ms. Woolsey. Well, I am going to let Dr. Burgdorf, Mr.
    McClure, and Mr. Imparato answer that question. What does that
    mean for our discussion today? Let me start with you, Mr.
    Imparato.
        Mr. Imparato. Thank you.
        I think Professor Burgdorf did a good job of explaining how
    the reasonable accommodation analysis happens under the ADA.
    The employee is not entitled to time off for anything they want
    time off for. They are entitled to an accommodation that
    enables them to do the essential functions of the job. So
    getting time off for hair treatment is not going to enable you
    to do the essential functions of the job.
        I just briefly want to also touch on this issue about the
    ADA's protections on health disparities. The EEOC guidance that
    David Fram cited was a 1993 guidance. We have case law from
    1999 where the courts have very narrowly interpreted what the
    ADA requires in the area of health care. They said it is okay
    to have a separate cap for AIDS-related illnesses than you have
    for other illnesses. They said it is okay to have different
    coverage for mental disabilities around disability insurance.
    They said it is okay not to cover hearing aids.
        All those have been challenged under the ADA and failed. So
    I don't see how having a broader definition is somehow going to
    invite a lot more health disparity cases because we are not
    successful under the current law with the cases that have gone
    forward.
        Ms. Woolsey. Mr. McClure, would you like to--I mean, a
    sprained ankle?
        Mr. McClure. I have worked with a sprained ankle.
    [Laughter.]
        Ms. Woolsey. I will bet you have.
        Mr. McClure. Your tolerance from the pain of a sprained
    ankle is nothing to compare with the pain I am in all the time.
        Ms. Woolsey. Right.
        Mr. McClure. I would like to note that I agree with you
    fully. Most Americans are not going to try to do the things
    they are saying, with chipped teeth, flu. Most of us want to
    work just like everybody else. Thank you.
        Ms. Woolsey. Thank you.
        Dr. Burgdorf?
        Can he, Chairman Andrews?
        Mr. Andrews. Yes, very briefly. Thank you.
        Mr. Burgdorf. The issue is in the wording that Mr. Fram
    used, of ``serious'' and who decides that it is serious. The
    ADA has a standard for reasonable accommodation. A person with
    a sprained ankle or any other thing that we might think of as
    minor will have to show that it interferes with the performance
    of an essential job function. If it does, then it is not that
    the person gets whatever he or she wants. It is that employers
    then enter into a dialogue about ``what do I need to do.''
        It might be the employer says the accommodation is go home.
    It might be the employer says ``put some ice on it and get back
    to work.'' There are any number of possible accommodations, and
    the employer gets to pick, unless they are not effective or
    unreasonable. The person with the disability has to accept it.
        Mr. Andrews. Thank you very much.
        The gentlelady's time has expired.
        The chair recognizes the gentlelady from Hawaii, Ms.
    Hirono, for 5 minutes.
        Ms. Hirono. Thank you, Mr. Chairman.
        I would like to thank the panel.
        I agree that the ADA needs remedial legislation and should
    be broadly interpreted to support the group of people that it
    was intended to help. I think in these cases, whoever bears the
    initial burden of proof often is the person who gets to go
    forward and proves his or her case. It seems as though this
    initial burden of having to show substantial limitation pretty
    much kicks out so many people from ever moving forward that we
    don't even get to the question of reasonable accommodation or
    whether or not that person could do the job.
        So what this bill does is to eliminate that initial burden,
    and then, as Mr. Fram says, I take it that we then get to this
    question of whether or not the person could do the job, and it
    shifts the burden to the employer.
        I would like to ask Mr. Imparato and Mr. Burgdorf whether
    you believe that this burden-shifting is an undue burden or
    somehow an unfair burden on the employers.
        Mr. Imparato. Well, thank you for that question. I think
    one of the things that Mr. Fram has argued and a number of
    employers have argued is that this statute is somehow changing
    an employee's burden to show that they are qualified, that they
    meet the basic functions of the position. That was not the
    intent of the legislation.
        Title VII does not require you--it doesn't say in the
    statute that you have to be a qualified woman or a qualified
    minority in order to have protection under Title VII. But it
    has been read--the prima facie case under Title VII has been
    read to include that you have to show you meet the basic
    qualifications.
        Our intent with ADA Restoration is to follow that. We took
    out the word ``qualified'' because it didn't appear in any
    other civil rights law, but the intent is to have the same kind
    of burden-shifting that you would have under Title VII. And
    that seems to work fine for employers.
        So the answer to your question is no, I don't think this
    would create an unfair burden for employers.
        Mr. Burgdorf. At the time the ADA was enacted, and this is
    reflected in some of the committee reports, there were cases
    under Section 504 dealing with the issue of burden of proof.
    What they essentially said is that the person with the
    disability has to come forward first with evidence that he or
    she satisfies the basic announced job qualifications. You may
    have to have a degree. You may have to have a license, a
    driver's license if the job involves driving.
        A person with a disability comes forward, shows that he or
    she meets the employer's announced qualification standards,
    then the burden shifts and the employer can argue, ``well,
    despite that, you can't really do the job.'' Then ultimately
    the burden would be on the employer. The person with the
    disability, meeting the announced criteria, should be presumed
    okay until, if and when the employer comes back and proves
    disqualification.
        That has gotten quite muddled in the interim. It appears
    that people with disabilities are going to have to prove they
    meet essential job functions when the employer knows what the
    essential job functions are, and the factors that go into
    determining job functions, as specified in the regs, are all
    things the employer knows. How much time has to be spent on
    this; what will happen if this function isn't performed--those
    are all things within the expertise of the employer.
        So H.R. 3195 moves the word ``qualified'' out of the first
    part of the statute. It leaves it in the statute. In fact, it
    is in there three times. This will take out one. It is
    specifically stated as a defense on employers. Therefore,
    ultimately if the employer wants to argue that you can't do the
    job, the employer is going to have to show that, despite the
    person having already shown that he or she meets the
    qualification standards that were announced.
        Ms. Hirono. So this bill would require an initial prima
    facie showing by the plaintiff, and then the burden shifts to
    the employer to show that the person is not qualified. So it is
    really a burden-shifting kind of thing that the initial burden
    is still on the plaintiff, and then it shifts to the employer.
    Is that how you are interpreting this bill?
        Mr. Burgdorf. That is how I interpret it.
        Ms. Hirono. Okay. Thank you.
        I yield back the rest of my time.
        Mr. Andrews. I thank the gentlelady for her questions.
        At this time, I would yield to the ranking member of the
    subcommittee for any concluding remarks he may have to make,
    Mr. Kline.
        Mr. Kline. Thank you, Mr. Chairman.
        Again, thanks to all for being here today, and Mr. McClure,
    for your touching personal testimony. I couldn't help but
    notice in the last series of questions that the lawyers at the
    table, we had two nodding their heads up and down and one
    shaking his head left and right. So this battle of lawyers is
    very common here, and in fact on this committee.
        What we want to do as we look to make sure that Mr.
    McClure--his case, his issue--is adequately covered here, that
    we do this in a way that doesn't dilute the act itself in such
    a way that it works counter to what we would like to see done.
    We would like to get to the point where we have all lawyer
    heads nodding. It may never happen, but we would like to get a
    lot closer to that than I think we are here.
        Again, I want to thank the witnesses for their testimony.
    We are looking forward to the tweaks or whatever it takes to
    get some more of those heads nodding.
        I yield back.
        Mr. Andrews. Mr. Kline, thank you.
        We thank all of our colleagues.
        I want to extend my appreciation to each of the witnesses.
    Mr. Imparato and Mr. Fram and Dr. Burgdorf I think really gave
    us excellent, well-reasoned arguments that the committee will
    take into deliberation.
        And Mr. McClure, I just want to say to you how important
    what you have done today is. I think there is a universal
    conclusion here that what happened to you is unfair and wrong.
    And unfortunately because it has already happened, there is not
    much that the committee can do to address your specific case
    because that is the way our system works. But you have done
    something that exceeds your own self-interest and you have done
    something very important for the men and women of your country
    by calling your case before us so we can fix it, so that what
    happened to you does not happen to other people.
        I think the way to fix it--I think the record is pretty
    clear that the court has confused the question of who has a
    disability with the question of what should be done in response
    to that disability. When the court has identified circumstances
    where it is uncomfortable in the kind of accommodations it
    thinks might happen, it has chosen to deal with the situation
    by defining out of the definition of ``disability'' people who
    ought to be protected. I think that is a core problem here that
    we have to address, and I believe that Mr. Hoyer and Mr.
    Sensenbrenner's bill does.
        Mr. McClure said a lot of very compelling things today, but
    I think the best thing, Mr. McClure, that you said was, ``most
    people just want to work.'' It is not about battle of the
    lawyers. I am also appalled by battle of the lawyers. It is
    contrary to everything I believe in. It is not about statutory
    interpretation. It is about a decent man or woman who wants to
    earn a paycheck for his or her family and do the job.
        I think what we always have to keep in mind here, as Mr.
    Kline just said, is how would anything we do affect you, Mr.
    McClure, and people like you, but also a broader question. When
    Mr. McClure was denied his rightful opportunity to excel in his
    job, it is not just that he suffered or that, frankly, General
    Motors suffered. The whole economy suffered because a talented,
    hard-working person was left out of the process.
        You don't win when you don't put your best people on the
    field. It is something that the New York Giants will probably
    find out on Sunday. [Laughter.]
        Sorry, for all my fellow New Jersey friends.
        But if you don't put your best people on the field, you
    don't win. I think one of the main purposes of the Americans
    with Disabilities Act is to make sure that we always put our
    best team on the field. And we do not say, well, you are okay,
    but you have some condition that makes us look at you a little
    bit differently, and we don't want your talent. In a global
    competition as fierce as the one in which we find ourselves, we
    can't afford to say to any person that we can leave their
    talent out.
        So Mr. McClure, we are sorry that your talents were left
    out. You can tell those grandchildren I know that you are so
    proud of that their grandfather did something very significant
    by coming here and telling his story and helping convince us,
    which I think you have done, to work together and solve this
    problem.
        So we thank everyone for their participation. Members will
    have 7 days to submit additional materials for the hearing
    record. Any member who wishes to submit a follow-up question in
    writing to the witnesses should coordinate with the majority
    staff also within 7 days.
        Again, we thank everyone for their participation. Without
    objection, the hearing is adjourned.
        [The statement of Mr. Courtney follows:]

     Prepared Statement of Hon. Joe Courtney, a Representative in Congress
                         From the State of Connecticut

        Chairman Miller, Representative McKeon--thank you for convening
    this hearing today. Majority Leader Hoyer, I want to thank you for
    bringing this issue forward. I know that you have been involved with
    the ADA for nearly 20 years, and you were instrumental in working to
    initially craft it in a bipartisan and bicameral manner.
        Ultimately, the intent of the ADA has been restrained; instead, the
    courts have limited its scope. Too many people are being denied their
    civil rights and denied coverage intended under the Act.
        Most people never reach the threshold of whether they have been
    discriminated against; rather they are being forced to prove they are
    truly disabled.
        It is not simply an injustice; it also has economic consequences.
    It impacts a person's ability to earn a living, contribute to one's
    family, save for retirement and attend college.
        I have heard from an organization established at Yale--the Center
    for Dyslexia and Creativity. A dedicated group of individuals led by Dr
    Sally Shaywitz are working on the issue of Dydlexia and how it impacts
    education and employment. Former Congressman Sam Gejdenson, Former FCC
    Chairman Reed Hundt and Steven Spielberg have joined her in this quest.
    I know the Chairman and Representative Andrews listened to her
    passionate testimony linking brain function mapping and dyslexia.
        Those with dyslexia may sometimes be granted additional testing
    time in normal educational settings but they are rarely given time when
    they need to take medical, law, graduate or college entrance exams
    which all impact their future employment and professional lives.
        And so--thank you for convening this important hearing. I
    cosponsored this important civil rights bill. And I ask unanimous
    consent to enter testimony by Dr. Shaywitz into the Record.
                                     ______

        [The statement of Dr. Shaywitz follows:]

    Prepared Statement of Dr. Sally Shaywitz, Audrey G. Ratner Professor of
            Learning Development, Yale University School of Medicine

        I am Dr. Sally Shaywitz, the Audrey G. Ratner Professor of Learning
    Development at the Yale University School of Medicine where I am Co-
    Director of the Yale Center for the Study of Learning, Reading and
    Attention, and, of the newly formed Yale Center for Dyslexia &
    Creativity. I am a member of the Institute of Medicine of the National
    Academy of Sciences and serve on the National Board of the Institute of
    Educational Sciences.
        A developmental pediatrician by training, I became concerned with
    the devastating impact of a reading disability on otherwise highly
    intelligent, and often gifted boys and girls who experienced an
    unexpected difficulty learning to read. Although dyslexia is often
    referred to as a ``hidden disability,'' the negative impact of the
    disorder on every aspect of a person's life became readily apparent as
    I followed these children and young adults and their families over
    time. And so I became deeply concerned about the impact of this
    disability on the lives of the children and resolved to learn more
    about this puzzling disorder that was stealing the joy of childhood
    from so many children, and worse, not allowing them as young adults to
    realize their often very high potential.
        Over the past two decades, my colleagues and I have investigated
    the epidemiology, cognitive mechanisms, and most recently, the
    neurobiological basis of dyslexia. At Yale, I see or review the
    requests of students at all levels of the University, undergraduate,
    graduate, and professional schools who request accommodations for a
    learning disability.
        I am here today because I am concerned that the current
    interpretations of the ADA are preventing otherwise deserving young men
    and women from entering college, graduate and professional schools, and
    then, professions--all of which are dependent on how well a student
    scores on the pervasive gate-keeper, high stakes examinations, for
    example, SAT; LSAT, MCAT, USMLE, the Bar Exam, certifying and licensing
    examinations for every medical specialty, nursing, financial services
    and many more. I have personally seen increasing numbers of deserving
    young men and women with clear histories of dyslexia, who with
    incredible effort and determination and reasonable accommodations,
    mostly the provision of additional time on exams, succeed in school
    but, who are then turned down for accommodations by standardized
    testing agencies and boards precisely because they have succeeded and
    their performance is compared to a standard of the average person.
        Clearly, using comparison to the average person for determination
    of a learning disability violates the fundamental tenets of a learning
    disability which is based on an intra-individual disparity, that is, a
    disparity existing within a person--between a person's intellectual
    ability and his/her achievement, and not on how a person compares to an
    external measure--the average person. By judging a learning disability
    by comparison to the average person and not based on the individual's
    own potential, all brighter than average learning disabled students are
    summarily excluded from receiving the accommodations they require to
    achieve their potential. In practical terms, this means not being
    admitted to law, medical or nursing school and these professions
    because of artificially low scores on high stakes exams so that the
    exam reflects that person's disability rather than his or her ability.
    Without accommodations, these tests cannot and do not reflect the LD
    person's knowledge or aptitude. The effect is for the average person
    standard to restrict the rights of bright LD students and set limits,
    essentially, a ceiling on their future jobs and careers.
        The past decade has seen an increase in the understanding of the
    nature of learning disabilities such as dyslexia, by far the most
    common LD, and, an increase in the provision of educational services,
    both instructional and accommodations that allow students to succeed
    and begin on the road to realizing their potential. And so, it is
    particularly cruel that these extraordinarily hardworking students, who
    are the original 24/7 folks and are at the verge of realizing their
    potential and their dreams, are artificially prevented from doing so.
    These young men and women have climbed the mountain, and now, when they
    are about to reach the peak, suddenly they are knocked down and
    prevented from reaching their earned and deserving goal. Time after
    time, I have witnessed LD students turned down and penalized for their
    hard work just because they have succeeded, with the interpretation
    that academic success (achieved with accommodations) precludes a
    diagnosis of LD and eligibility for accommodations under the ADA. As a
    result, students are placed in a Kafkaesque Catch-22: they succeed
    because of their intellect, hard work, and provision of accommodations
    which they received only because they are LD. However, for the very
    success in school that they have achieved and that makes them eligible
    for further study, particularly in graduate and professional schools,
    and for certification and licensure, they are penalized and denied
    accommodations on gate-keeper exams (e.g., GMAT, MCAT, USMLE, LSAT, bar
    exam) preventing access to professions.
        A major and important difference between the ``average'' person and
    the LD person is that the provision of accommodations will have a
    significant impact on the LD person's performance, but not the average
    person's performance. We often hear, ``wouldn't everyone benefit if
    they had extra-time?'' The answer is a clear and unequivocal no!
    Results of scientific studies now provide undeniable evidence that only
    LD students increase their scores significantly when provided with
    extra-time, and what's more there is now definitive neurobiological
    evidence of the need for extra-time by dyslexic students.
        Scientific studies comparing the performance of LD and nonLD
    college students with and without extra-time demonstrate, for example,
    that while nonLD students score at the 82nd percentile without extra-
    time, they score at the 83rd percentile with additional time. Scores of
    nonLD students remain essentially unchanged; providing extra-time to
    nonLD students makes virtually no difference.
        What about LD students? Here we see a significant and substantial
    increase in scores, evidence of the difference extra-time makes for LD
    students. In this study, LD college students scored in the 13th
    percentile without extra-time, and with extra-time, scores increased
    substantially from the 13th percentile to the 76th percentile; a
    significant difference. Extra-time for LD students levels the playing
    field, precisely reflecting the intentions of the ADA.
        Today, in 2008, it is possible to show you actual brain images
    obtained during functional magnetic resonance imaging (fMRI) that
    provide clear and compelling neurobiological evidence of the absolute
    need for extra-time for dyslexic students. fMRI allows us to literally
    peer into the living brain as a person reads and we can see which brain
    systems are used by typical or average readers in contrast to dyslexic
    readers.
        What have we learned? Typical readers light up--activate three
    neural systems on the left side of the brain, one in the front of the
    brain and two in the back. One of these systems, we and others have
    shown, is essential for rapid, fluent automatic reading that is
    effortless. In dyslexic readers, this neural circuit (aptly named the
    wordform area) that is responsible for automatic, rapid reading remains
    silent, fails to activate preventing these impaired readers from
    reading fluently, that is, rapidly and automatically. Dyslexic readers
    compensate by developing other systems in other areas of the brain;
    however, these systems provide only partial compensation. They allow
    the dyslexic reader to read relatively accurately, but not
    automatically, that is, rapidly. Consequently dyslexic readers remain
    slow, nonautomatic readers across their lifetime. Thus, with great
    effort and effective reading instruction, dyslexics can learn to read
    words accurately, but not rapidly. In contrast, peers learn to read
    both accurately and automatically (rapidly). Slow, effortful reading
    persists and characterizes dyslexic readers at all ages. As a result of
    this neurobiological disruption, dyslexics require extra-time in order
    to demonstrate their knowledge and to level the playing field. Without
    protection of the ADA (i.e., a denial of additional time), a dyslexic
    person performs below his/her ability and the high stakes test becomes
    a measure of a dyslexic person's disability bringing with the denial a
    barrier impeding access to jobs and careers. Critically, brain imaging
    has made a hidden disability and its consequences visible. There now
    exists a neural signature for dyslexia and scientific proof of the need
    for extra-time for dyslexic students.
        From a neuroscience perspective, dyslexic readers show a persistent
    disruption in the specific neural system for rapid, automatic reading;
    nondyslexic readers have an intact system. This is demonstrated by the
    figures below:

        Neural system (word form area, shown in yellow) for automatic,
    rapid reading is impaired in dyslexia; other areas provide compensation
    for accuracy, but not for speed.

        And so, we now know that if you are a non-dyslexic reader, you use
    the word-form area well, you look at a word and you're on the express
    highway to reading. Look at the word and instantly you know it and can
    read it. But, if you are a dyslexic, that express route is blocked and
    you have to get off and take another ancillary, secondary ``country''
    road--it's circuitous, and it's bumpy. And so its slower and you have
    to work a lot harder; it will get you to your destination but it takes
    a lot longer. Just as a diabetic requires insulin, a dyslexic has a
    physiologic need for extra-time.
        To summarize, the evidence is now clear; accommodations are
    critical to assure fairness and equity to students who are LD.
    Currently, standardized testing agencies are denying large numbers of
    dyslexic students extra time. This discriminatory practice has
    significant negative consequences for the futures of these students.
    Today, standardized tests are the gate-keeper to the future: access to
    college, graduate and professional study, job certification all share a
    dependence on performance on these high-stakes tests.
        Denial of accommodations to LD students represents particularly
    cruel discrimination, for it penalizes those with the most potential,
    those who have struggled throughout school, given up much of their
    childhood, worked the hardest to achieve academically and did so with
    provision of accommodations. And now these incredibly hardworking,
    deserving dyslexic students are being told because they have achieved
    academically, they are not eligible for protection of the ADA, closing
    the door on years of effort and dedication and preventing access to
    higher education and future jobs.
        Why should we care? I believe, and I think you will too, that
    denying LD students extra-time goes against the intent of the ADA,
    scientific evidence, and hurts not only the students, but harms our
    society as well through the loss of human capital that could contribute
    substantially to our nation's well-being.
        I will leave you with one example. Dr. Toby Cosgrove is recognized
    as perhaps the finest cardiothoracic surgeon in the world; he led the
    Cleveland Clinic Department of Cardiothoracic Surgery to greatness,
    achieving number one status in US News & World Report's rankings year
    after year. His over 20 patents have saved countless lives and given
    better lives to hundreds, if not thousands, of others. The frightening
    fact is that Toby Cosgrove came very close to never becoming a doctor.
    Dr. Cosgrove is dyslexic.
        When I visited with him and lectured with him at the Cleveland
    Clinic, I heard him speak movingly to the hushed crowd of his
    difficulties in school in learning to read and his memories of the
    tutors who tried to teach him to read. Reading remained a ``big
    problem'' for Dr. Cosgrove. For young Toby, college meant nonstop work.
    ``All I did was study, even on weekends. While everyone else was
    partying or going to the movies or sports events, I packed my suitcase
    and left campus for home where I studied all weekend.'' Reflecting his
    slow reading, standardized testing was a disaster for him, not at all
    reflecting his potential, but rather his dyslexia. A particular problem
    was the impact of his slow, nonautomatic reading on the Medical College
    Admissions Test, the MCAT. It seemed doubtful that Cosgrove would ever
    fulfill his dream of becoming a doctor. In fact, he was accepted at
    only one of the 13 medical schools to which he applied, and rejected
    from 12 out of 13, because of the impact of his slow reading on the
    gate-keeper test that allows or bars access to medical school and to
    becoming a physician.
        The frightening thought is that not only would Toby Cosgrove have
    been denied the dream he worked so hard to achieve; society would have
    been deprived of the substantial, lasting benefits of his inventions
    and patents that have saved so many lives and given so many people
    better lives. The question I leave you with is how many other potential
    Toby Cosgroves are we in danger of losing because of denial of proven
    to be necessary accommodations for dyslexic students? Let us weigh,
    would it be worth it to give this man extra-time not to lose him and
    his contributions? Thank you.
                                     ______

        [The statement of Mr. Fortuno follows:]

        Prepared Statement of Hon. Luis G. Fortuno, a Representative in
                   Congress From the Territory of Puerto Rico

        Chairman Miller, Ranking Member McKeon, I would like to thank you
    both for holding this critical hearing as we move towards
    reauthorization of the American with Disabilities Act. As the sole
    representative of 4 million U.S. citizens on the Island of Puerto Rico,
    it is my will that we come together today and find a way to settle our
    differences and ensure passage of this critical piece of legislation.
    Coming together is the only way to make sure we protect the civil
    rights of the sector of the population that needs us the most.
        During my years in Congress I have always been a strong advocate
    for the right of those with disabilities. In my district alone there
    are approximately nine hundred thousand U.S. citizens who suffer from
    an impediment, eighty percent of which are unemployed. Puerto Rico is
    losing out on the contributions these individuals have to offer to our
    society. The fact is that the reauthorization of this legislation would
    be a critical factor in changing these numbers for the better but only
    if amended. It is my belief that the current language of the bill is
    too broad and instead of protecting, it could hurt those it was
    originally intended to protect.
        I would like to express my support for the reauthorization of this
    bill and trust that through this hearing and through open dialogue we
    will find a consensus that will ultimately benefit our constituents
    with disabilities.
        Thank you Chairman Miller and Ranking Member McKeon for allowing me
    to speak about this critical issue.
                                     ______

        [The statement of Ms. Woolsey follows:]

        Prepared Statement of Hon. Lynn C. Woolsey, a Representative in
                     Congress From the State of California

        Everyone deserves equal access and opportunity to live, learn, and
    work, without fear that they will somehow be denied that opportunity
    because of the color of their skin or whether they have a disability.
    Since the passage of the Americans with Disabilities Act (ADA) in 1991,
    we have worked to end discrimination. However, we still have a long way
    go to ensure that all disabled Americans are treated fairly.
        No person with a disability should be prevented from pursuing the
    job of his or her choice if fully capable of doing the work required of
    them. A person with a disability shouldn't be punished for trying to
    find ways to manage his or her disability in order to live the best
    possible life. However, because of the way the courts have defined
    disability, employers have been allowed to discriminate against some
    disabled employees.
        The ADA Restoration Act, H.R. 3195, would amend the ADA's
    definition of disability to cover all the people Congress originally
    intended to protect and would prevent courts from disqualifying people
    from coverage under the law because of the narrow definition of a
    disability or for mitigating factors, such as eyeglasses and
    medication. The ADA was passed to ensure that all people with
    disabilities have equal access and opportunities and it is high time
    that we bring back its original intent. It's a matter of doing what's
    right.
                                     ______

        [Additional submissions of Mr. Andrews follow:]
        [The statement of the ACLU follows:]

            Prepared Statement of the American Civil Liberties Union

        The American Civil Liberties Union (ACLU) applauds the House
    Education and Labor Committee for holding this hearing on the Americans
    with Disabilities Act (``ADA'') Restoration Act of 2007 and appreciates
    the opportunity to submit a statement for the record. The ACLU also
    wishes to thank Representatives Hoyer (D-MD) and Sensenbrenner (R-WI)
    and Chairman Miller (D-CA) for their important leadership in
    championing this key legislation.
        The ACLU is a nonpartisan public interest organization dedicated to
    protecting the constitutional rights of individuals. The ACLU consists
    of hundreds of thousands of members, activists, and 53 affiliates
    nationwide. The ACLU has pursued pioneering work in disability rights
    for over 35 years. A highlight in this long record was the ACLU's
    leadership role in securing passage of the Americans with Disabilities
    Act (``ADA'') in 1990.\1\ In addition, the ACLU has participated in
    landmark disability litigation including Bragdon v. Abbott, 524 U.S.
    624 (1998);\2\ Sutton v. United Airlines, Inc., 527 U.S. 471 (1999);\3\
    Chevron, USA, Inc. v. Mario Echazabal, 122 S. Ct. 2045 (2002).\4\
        In 1990 Congress passed the ADA with overwhelming bipartisan
    support, creating a landmark civil rights law that improved the lives
    of millions of people with disabilities. In passing the ADA, Congress
    advanced the goals of ensuring equal opportunity, full participation,
    independent living, and economic self-sufficiency for all people with
    disabilities.\5\ The purpose of the ADA was to ``provide a clear and
    comprehensive national mandate for the elimination of discrimination''
    on the basis of disability, and ``to provide clear, strong, consistent,
    enforceable standards'' for addressing such discrimination.\6\
        Unfortunately 17 years after enactment of the ADA, the promise of
    equal opportunity in employment has gone unfulfilled to many people
    with disabilities due to a series of U.S. Supreme Court decisions that
    have narrowed the definition of disability under the ADA contrary to
    Congressional intent. This has resulted in the exclusion of many
    persons whom Congress intended to protect including people with cancer,
    epilepsy, diabetes, hearing loss, multiple sclerosis, HIV infection,
    intellectual disabilities, post traumatic stress syndrome, and many
    other impairments. The ACLU believes that an individual has the right
    to be judged on the basis of her or his individual capabilities, not on
    the presumed characteristics and capabilities that others may attribute
    to those who share a particular impairment. The court decisions have
    created an unintended Catch-22 where individuals taking medication or
    using other mitigation measures to manage their condition may no longer
    qualify as ``disabled'' under the ADA. Thus those individuals
    diligently managing their condition may be denied reasonable
    accommodations or be terminated, without ever being able to present the
    merits of their case in court.
        The ACLU supports the ADA Restoration Act of 2007 (H.R. 3195) as a
    necessary fix to this Catch-22 problem. The ADA Restoration Act
    restores Congress's original intent in extending discrimination
    protections to all people with disabilities, regardless of mitigating
    measures, who are discriminated against because of their disability.
    The ACLU encourages its passage in order to guarantee equal protection
    for all people, regardless of disability.
                                    endnotes
        \1\ Chai Feldblum, former legislative counsel with the ACLU, served
    as a lead legal advisor to the disability and civil rights communities
    in the drafting and negotiating of the ADA.
        \2\ The ACLU wrote an amicus brief in Bragdon which addressed
    whether individuals with asymptomatic HIV and AIDS were covered under
    the protections of the ADA. Available at http://www.aclu.org/scotus/
    1997/22683lgl19980201.html.
        \3\ The ACLU wrote an amicus brief in Sutton, arguing that the ADA
    was intended to be applied broadly to protect individuals with
    disabilities from discrimination in the workplace. Available at http://
    www.aclu.org/scotus/1998/22639lgl19990222.html.
        \4\ The ACLU wrote an amicus brief in Echazabal, arguing that an
    employer violates the ADA when refusing to hire an individual on the
    basis of her or his disability. The ACLU further argued that allowing
    individuals to decide what risks--physical, social, or otherwise--she
    or he is willing to take is at the very core of a person's civil
    rights. Available at http://www.aclu.org/images/asset--upload--
    file411--21954.pdf.
        \5\ See 42 U.S.C. Sec.  12101(a)(8).
        \6\ See Americans with Disabilities Act Sec.  2(b), 42 U.S.C. Sec.
    12101(b) (2007).
                                     ______

        [The statement of the Bazelon Center for Mental Health Law
    follows:]

                                                      January 29, 2008.

        Bazelon Center for Mental Health Law Urges Congress to Pass the
                  Americans With Disabilities Restoration Act

        The Judge David L. Bazelon Center for Mental Health Law commends
    the House Education and Labor Committee for holding today's hearing
    concerning a much-needed measure--the Americans with Disabilities
    Restoration Act. This legislation is needed to correct federal courts'
    misinterpretations of the ADA and ensure that the protections that
    Congress enacted in the ADA are in fact available for all people with
    disabilities.
        The Bazelon Center is a nonprofit organization that provides
    assistance and representation to individuals with mental disabilities.
    For three decades, the Center has engaged in policy advocacy and
    precedent-setting litigation that has opened up public schools,
    workplaces, housing and other opportunities for people with mental
    disabilities to participate in community life.
        Almost eighteen years ago, President George H.W. Bush signed the
    Americans with Disabilities Act into law. This landmark legislation was
    the first comprehensive national civil rights law for individuals with
    disabilities, intended by Congress as a broad mandate barring
    discrimination against all people with disabilities and ensuring access
    to the mainstream of American life. As he signed the law, President
    Bush stated: ``Let the shameful walls of exclusion finally come
    tumbling down.''
        The ADA has had a tremendous impact on the lives of people with
    disabilities, opening up many doors that were previously closed and
    enabling them to participate fully in many aspects of life. The Supreme
    Court, however, has misconstrued the scope of the ADA's protections and
    held that it covers a far narrower group of individuals than Congress
    intended. The Court's decisions have created a ``Catch 22'' for people
    with disabilities: many have lost their jobs because of their
    disability, but their employers have successfully argued that these
    individuals are not disabled enough to be protected by the ADA. This
    was not Congress's intent in passing the ADA.
        We urge Congress to act promptly in passing this legislation to
    restore the rights of all Americans with disabilities to be free from
    unwarranted disability-based discrimination.
                Very truly yours,
                                              Robert Bernstein,
                                                    Executive Director.
                                     ______

        [The statement of the United Jewish Communities follows:]

                                                      January 28, 2008.

              Prepared Statement of the United Jewish Communities

        Dear Member of Congress: As concerned Jewish organizations
    committed to protecting the rights of people with disabilities, we urge
    Congress to pass the ADA Restoration Act of 2007 (H.R. 3195/S. 1881).
    This bill is essential to protect people with disabilities from
    discrimination and to correct the rollback of civil rights which has
    occurred since the enactment of the Americans with Disabilities Act
    (ADA) in 1990. In advance of the tomorrow's hearing in the Education
    and Labor Committee, we encourage you to support this crucial piece of
    legislation.
        The ADA promised to be a vital means of protecting the livelihoods
    of people with disabilities who faced discrimination. Since the
    enactment courts have narrowed the definition of disability to the
    point that the law often harms the very individuals it was designed to
    protect. The ADA Restoration Act would attempt to close loopholes in
    the ADA's workplace provisions by clearly redefining the term
    ``disability'' to apply to any individual with a real or perceived
    physical or mental impairment. The definition of disability, which
    would restore clear Congressional intent, would ensure that individuals
    with conditions such as epilepsy, diabetes, hearing loss, learning
    disabilities, or psychiatric disabilities who utilize ``mitigating
    measures'' such as prescription drugs, prosthetics, and hearing aids,
    will be protected under the legislation. To encourage the courts to
    stop construing disability legislation narrowly in a way that defies
    the spirit of the law, the bill states that its provisions should be
    broadly construed to advance their remedial purpose.
        The Torah teaches us that the stamp of the Divine is present in
    each of us, regardless of physical or mental ability. Exodus 4:10-11
    reads, ``But Moses said to the Lord, `Please, O Lord, I have never been
    a man of words, either in times past or now that You have spoken to
    Your servant; I am slow of speech and slow of tongue.' And the Lord
    said to him, `Who gives man speech? Who makes him dumb or deaf, seeing
    or blind? Is it not I, the Lord?' '' Furthermore, Jewish tradition
    teaches us of our obligation to ensure equal access for all people and
    to help facilitate the full participation of individuals with
    disabilities in our communities. As we read in Leviticus 19:14, ``You
    shall not insult the deaf, or place a stumbling block before the
    blind.''
        The right to earn a livelihood without fear of discrimination is
    one that should be unquestionably granted to all Americans, regardless
    of physical or mental disability. We urge you to show your support for
    equal rights by co-sponsoring and supporting the ADA Restoration Act of
    2007. If you have any questions about the legislation or this letter,
    please contact Kate Bigam at (202) 387-2800 or Amy Aarons Rosen at
    (202) 736-5871.
                Sincerely,
                                  The Union for Reform Judaism,
                                     United Jewish Communities.
                And the following organizations:
                                    national
    American Conference of Cantors,
    American Jewish Committee,
    Anti-Defamation League,
    Association of Jewish Aging Services of North America,
    Association of Jewish Family & Children's Agencies,
    B'nai B'rith International,
    Central Conference of American Rabbis,
    International Association of Jewish Vocational Services,
    Jewish Council for Public Affairs,
    Jewish Reconstructionist Federation,
    KESHER: URJ College Department,
    Men of Reform Judaism,
    National Council of Jewish Women,
    North American Federation of Temple Youth,
    The United Synagogue of Conservative Judaism,
    Women of Reform Judaism,
    Yad HaChazakah--The Jewish Disability Empowerment Center, Inc.
                                     state
    Massachusetts Association of Jewish Federations,
    Ohio Jewish Communities,
    Wisconsin Jewish Conference.
                                     local
    Bronstein Jewish Family Service (Southbury, CT),
    Council for Jewish Elderly (Chicago, IL),
    Greater Bridgeport Section, NCJW, Inc. (Greater Bridgeport, CT),
    JEVS Human Services (Philadelphia, PA),
    Jewish Child and Family Services (Chicago, IL),
    Jewish Community Relations Council of Greater Washington (Greater
            Washington, DC),
    Jewish Community Relations Council of the Jewish Federation of Southern
            Arizona (Tucson, AZ),
    Jewish Family and Community Services (Jacksonville, FL),
    Jewish Family and Children's Service of Greater Boston (Boston, MA),
    Jewish Family & Children's Service of Minneapolis (Minneapolis, MN),
    Jewish Family and Children's Services of San Francisco, the Peninsula,
            Marin and Sonoma Counties (San Francisco, CA),
    Jewish Family and Children's Services of the East Bay (Berkley, CA)
            Jewish Family and Vocational Service (Louisville, KY),
    Jewish Family Service (Houston, TX),
    Jewish Family Service (San Diego, CA),
    Jewish Family Service (Wilkes-Barre, PA),
    Jewish Family Service of Buffalo & Erie County (Buffalo, NY),
    Jewish Family Service of Seattle (Seattle, WA),
    Jewish Family Service of the Desert (Palm Springs, CA),
    Jewish Family Services (Danbury, CT),
    Jewish Family Services of York (York, PA),
    Jewish Federation of Broward County Community Relations Committee
            (Broward County, FL),
    Jewish Federation of Greater Philadelphia (Philadelphia, PA),
    Jewish Federation of Metropolitan Chicago (Chicago, IL),
    Jewish Vocational Service and Employment Center (Chicago, IL),
    Jewish Vocational Service of MetroWest (East Orange, NJ),
    Jewish Vocational Services of the San Francisco Bay Area (San
            Francisco, CA),
    Metropolitan Council on Jewish Poverty (New York, NY),
    Milwaukee Jewish Council for Community Relations (Milwaukee, WI),
    National Council of Jewish Women, St. Louis Section (St. Louis, MO),
    National Council of Jewish Women, Brooklyn Section (New York, NY),
    Partnership for Jewish Life and Learning (Greater Washington, DC),
    Ruth Rales Jewish Family Service (Boca Raton, FL),
    Shaare Tefila Congregation (Silver Spring, MD),
    Sinai Health System (Chicago, IL),
    Syracuse Jewish Family Service, Inc. (Syracuse, NY),
    The Keshet Organization (Chicago, IL),
    The Amit Program, Inc. (Atlanta, GA),
    UJA-Federation of NY (New York, NY).
                                     ______

        [The statement of the Disability Policy Collaboration
    follows:]

                                    ------

        [The statement of the Epilepsy Foundation follows:]

                                                      January 29, 2008.

    Epilepsy Foundation Commends House Education and Labor Committee on ADA
                            Restoration Act Hearing

        The Epilepsy Foundation, the national voluntary agency solely
    dedicated to the welfare of the three million people with epilepsy in
    the U.S. and their families, commends the U.S. House Committee on
    Education and Labor for holding a hearing on the ADA Restoration Act of
    2007 (H.R. 3195). The Foundation also commends the leadership and
    vision of Committee Chairman, George Miller (D-CA) and Ranking Member
    Howard P. ``Buck'' McKeon (R-CA).
        In a series of decisions issued beginning in 1999, the Supreme
    Court effectively denied persons with a broad range of serious, but
    treatable, health conditions protection from discrimination in the
    workplace. The Court ruled that if the condition can be managed through
    the use of ``mitigating measures,'' such as medication, prosthetics or
    the use of devices, the individual will be viewed as too functional to
    have a disability and will be denied the ADA's protection against
    employment discrimination. People with a broad range of disabilities--
    including epilepsy, diabetes, cancer, multiple sclerosis, depression,
    bipolar disorder, posttraumatic stress disorder, HIV, missing limbs and
    intellectual and developmental disabilities--have been found not to be
    ``disabled'' under the ADA. The Supreme Court has shifted the focus
    away from an employer's alleged misconduct and onto whether an
    individual can first meet a ``demanding standard for qualifying as
    disabled.''
        This creates an absurd Catch-22 which allows employers to say a
    person is ``too disabled'' to do the job but not ``disabled enough'' to
    be protected by the law. People are being unfairly denied a job or
    fired because an employer mistakenly believes they cannot perform the
    job--or because the employer does not want ``people like that'' in the
    workplace. The case is thrown out of court without the individual ever
    having the chance to show he or she is qualified for the position.
        Here is a description of just a few of the many, many individual
    workers with epilepsy whom the lower courts have denied ADA protection:
         A merchandize stocker who experienced weekly seizures and
    had memory problems as a result of antiseizure medication: In
    discussing the impact of the seizures, the court concluded that the
    effects of the seizures were not substantial enough because they
    ``only'' lasted 10 to 15 seconds and occurred ``only'' weekly. Because
    the court found that the individual was not covered under the ADA, it
    did not rule on whether the individual was able to do the job, but it
    did note in passing that ``there is no indication that he is unable to
    perform the functions of his job as a result of his epilepsy or that he
    creates a dangerous situation in the workplace or any place else.''
         A production line worker with uncontrolled nocturnal and
    daytime seizures: The nocturnal seizures occurred once or twice a week
    and caused severe sleep loss; the daytime seizures, though less
    frequent, caused shaking and loss of awareness, along with some memory
    loss. These impairments, the court found, were not substantial enough
    to qualify for protection.
         A laborer in a food processing plant, who experienced a
    seizure causing loss of consciousness approximately once a month: The
    court held that the employee did not have a disability, even though it
    recognized that his epilepsy is debilitating at times.
         A registered nurse, who worked as a claims adjuster for
    the county health department: Her seizures were uncontrolled despite
    her medication regimen and, as a result, she was unable to drive and
    had to rely on friends and family for transportation. Again, no
    coverage was available for this worker.
        This is not what Congress intended when it passed the ADA in 1990.
    Most employers and businesses try to do the right thing with regard to
    people with disabilities. But for those who discriminate against people
    with disabilities, the courts must be available to ensure that people
    with disabilities have a fair opportunity to work and be a part of
    everyday society.
        The ADA Restoration Act of 2007 (H.R. 3195) is based upon the model
    legislation proposed by the National Council on Disability in 2004, and
    is designed to give people with all kinds of conditions protection from
    adverse treatment on the basis of their condition, as Congress had
    originally intended when the law was passed in 1990. Unlike the NCD's
    broad proposed legislation which addressed a host of problems court
    interpretations have created, problems that must eventually be solved,
    in this legislation, H.R. 3195, Congress focuses only on fixing the
    definition of disability, that is, ensuring that the ADA has the broad
    scope and covers people as the law originally intended. We believe that
    this problem must be solved immediately, or the rest of the law has
    limited usefulness as a tool to redress employment discrimination
    against people with epilepsy and similar disabilities.
        The Epilepsy Foundation applauds the Congressional leaders who have
    introduced and co-sponsored H.R. 3195 for recognizing and addressing
    the fundamental problem of coverage under the current definition of
    disability in the ADA as now implemented by the courts. We appreciate
    the hearing being held in the Education and Labor Committee and look
    forward to speedy passage of this legislation.
                                     ______

        [The statement of the National Council on Disability
    follows:]

                                    ------

        [The statement of the National Council on Independent
    Living follows:]

    Prepared Statement of the National Council on Independent Living (NCIL)

        Background: Passed with overwhelming bipartisan support, the
    Americans with Disabilities Act of 1990 was designed as a ``clear and
    comprehensive national mandate for the elimination of discrimination
    against individuals with disabilities.'' Without doubt, the ADA has
    transformed America's communities, removing barriers to persons with
    disabilities in the built environment and infrastructure, and has
    substantively advanced the cause of community integration for people
    with disabilities.
        Issues: Yet, as documented in the National Council on Disability's
    report ``Righting the ADA,'' a series of flawed Supreme Court decisions
    have seriously undermined our ability to realize the full promise of
    the ADA. In Sutton v. United Airlines, and Toyota v. Williams, the
    Supreme Court has taken to interpreting the definition of disability in
    a restrictive manner that Congress never envisioned, placing the burden
    on persons with disabilities to prove that they are entitled to the
    ADA's protections--particularly in the employment sphere. This creates
    a Catch-22 in which employees can be discriminated against on the basis
    of their disability but unable to enforce their rights because they
    cannot meet the high threshold the courts have set to prove they are
    disabled. Furthermore, in University of Alabama v. Garrett, the Supreme
    Court ruled 5-4 that the 11th Amendment prohibits suits in federal
    court by state employees to recover monetary damages under Title I of
    the ADA. The Supreme Court's restrictive approach to the ADA in
    employment cases is especially disconcerting since the unemployment of
    persons with disabilities wishing to work remains widespread.
        Proper implementation of the original intent of the ADA in the
    employment sphere is critical to the economic self-sufficiency and full
    societal participation of people with disabilities that is at the core
    of the Independent Living (IL) movement. The fact that only 7% of
    persons with disabilities own their own homes and roughly 30% of
    Americans with disabilities are employed is a reflection of the
    continued inability of persons with disabilities to enforce their right
    to non-discrimination in the workplace under the Americans with
    Disabilities Act.
        Issues Raised by the U.S. Chamber of Commerce: The U.S. Chamber of
    Commerce claims that H.R. 3195 ensures that protections on the basis of
    disability apply broadly. This is correct. The Supreme Court did not
    understand that significant disability as defined by the Americans with
    Disabilities Act includes people with intellectual disabilities
    (formerly known as Mental Retardation), epilepsy, diabetes, cancer, and
    mental illnesses, among others. For a person who merely has poor vision
    that is correctible, he or she may indeed be considered disabled by a
    court. The question is not whether a person with a disability has a
    disability or is regarded as a person with a disability. The question
    is whether or not the person has been discriminated against on the
    basis of disability. The intent of H.R. 3195 is to prevent
    discrimination on the basis of disability, not to create a protected
    class.
        The Chamber of Commerce also alleges that ``H.R. 3195 would reverse
    the long-standing rule that allows employers to determine what the
    essential functions of a job are, allowing plaintiffs to second-guess
    routine job decisions that employers must make every day.'' There is no
    such language in H.R. 3195 to this effect.
        The problem with the Supreme Court's and lower courts' decisions,
    referenced in HR 3195's ``Findings and Purposes,'' is that they refuse
    to even consider whether discrimination based on disability has
    occurred. Therefore, the courts ruled that the plaintiff was either not
    disabled or not disabled enough to be protected by the ADA. Had the
    courts properly reviewed these cases, they would have decided them on
    the basis of whether the plaintiff was qualified to perform the
    essential functions of the job with or without reasonable
    accommodation.
        The real problem in the Chamber of Commerce's August 22 letter to
    the U.S. House of Representatives is not their fallacious reasoning,
    but the blatant prejudice it exhibits against Americans with
    disabilities. NCIL has members in all but five Congressional Districts.
    Our experience working with businesses in communities across the
    country over three decades shows that the majority of businesses are
    more open minded than the board and staff of the Chamber of Commerce.
        NCIL supports:
        Enactment of the ADA Restoration Act as introduced by House
    Majority Leader Steny Hoyer, Rep. James Sensenbrenner, and cosponsored
    by more than 200 of their colleagues to remedy decades of purposeful,
    unconstitutional discrimination;
        Funding for ongoing public education on the requirements of the
    ADA, and adequate funding for strong enforcement by the US Department
    of Justice, US Equal Employment Opportunity Commission, Federal
    Communications Commission, and other agencies with enforcement
    responsibilities;
        Creative efforts by federally-funded enforcement, technical
    assistance, and advocacy organizations to promote the positive aspects
    of the ADA's accessibility and equal opportunity requirements;
        Efforts by States to voluntarily waive their immunity from damage
    suits brought by people with disabilities under Titles I and II of the
    ADA, and;
        Bipartisan Congressional efforts to overturn Supreme Court
    decisions narrowing the scope of the ADA, by enacting the ADA
    Restoration Act, H.R. 3195.
        Thank you for your consideration. Please do not hesitate to contact
    Deb Cotter of our policy staff if you have additional questions or
    concerns, please contact us.
                Sincerely,
                         John A. Lancaster, Executive Director,
                                     Kelly Buckland, President,
                                National Council on Independent Living.
                                     ______

        [Additional statements submitted by Mr. McKeon follow:]
        [A statement of organizations in opposition to the bill
    follows:]

                                                      January 28, 2008.
    Hon. George Miller, Chairman,
    Hon. Howard ``Buck'' McKeon, Ranking Member,
    Committee on Education & Labor, U.S. House of Representatives,
            Washington, DC.
        Dear Chairman Miller and Ranking Member McKeon: We write today to
    share our concerns regarding H.R. 3195, the ``ADA Restoration Act''
    that your committee will discuss in a legislative hearing on January
    29. As a group, we strongly believe that the Americans with
    Disabilities Act (ADA) provides important and necessary protections for
    employees and applicants. However, this legislation as currently
    drafted would not ``restore'' the ADA, but would dramatically expand it
    to cover even the most minor impairments, such as bad eyesight, the flu
    or a small scar. In short, the bill is inconsistent with Congressional
    intent expressed when the law was passed in 1990, would trivialize the
    concept of disability and inappropriately divert employer resources
    from those who need them most.
        As you examine H.R. 3195, it is critical to note the key
    distinction between ``disability'' and ``impairment'' under the law.
    Under the ADA, an individual is ``disabled'' if he or she has a
    physical or mental impairment that substantially limits a major life
    activity. The law defines ``impairment'' broadly to cover virtually any
    physical or mental condition. An impairment is considered a covered
    disability only if it substantially limits activities that are central
    to daily life, such as seeing, reading or breathing. If an individual
    is found to be disabled and qualified to perform the essential
    functions of the job, he or she may request an accommodation from the
    employer. The individual and employer then engage in an interactive
    process to reach a reasonable accommodation so the employee can perform
    his or her job. This process has worked well under the law and is
    structured to respond to the individual needs of employees.
        H.R. 3195 drastically expands the definition of ``disability,'' by
    eliminating the requirements that an individual's impairment
    substantially limit a major life activity. Thus, the bill's concept of
    ``disabled'' would be expanded to cover any impairment, regardless of
    how temporary, intermittent, occasional, mild or minor it is, including
    health conditions such as the flu. The change would result in the law
    covering conditions that Congress never intended to be covered by the
    ADA, exponentially increasing the number of persons who can bring a
    disability discrimination claim. For example, a person with a minor
    finger cut requiring stitches would be considered just as disabled as a
    veteran returning home having lost his or her arm in combat, and an
    individual with occasional headaches would receive the same protection
    as an individual with a serious brain damage. In essence, H.R. 3195
    would create an environment where anything less than perfect health
    would cause an individual to be covered under the ADA. The resulting
    increase in requests for accommodation would overwhelm employers and
    make it more difficult for them to assist the severely disabled.
        These bills make many other unworkable changes to the ADA including
    a dramatic expansion of employers' reasonable accommodation obligations
    and a reversal of a long-established rule found in all federal
    antidiscrimination laws that a person must show that he or she is
    qualified to perform the job. Instead, the bills would shift this
    responsibility to employers.
        Thank you for your consideration.
                Sincerely,
              American Architectural Manufacturers Association,
                 American Composites Manufacturers Association,
                          American Hotel & Lodging Association,
                             American Iron and Steel Institute,
                             American Sportfishing Association,
                                   American Supply Association,
                             Associated Builders & Contractors,
                                Associated General Contractors,
     College and University Professional Association for Human
                                                     Resources,
                           Environmental Industry Associations,
                                      Food Marketing Institute,
                                         HR Policy Association,
                            Independent Electrical Contractors,
            International Foodservice Distributors Association,
                           International Franchise Association,
         International Public Management Association for Human
                                                     Resources,
                 International Warehouse Logistics Association,
                    National Association of Convenience Stores,
                         National Association of Manufacturers,
               National Association of Wholesaler-Distributors,
                         National Council of Chain Restaurants,
                   National Federation of Independent Business,
          National Public Employer Labor Relations Association,
                               National Restaurant Association,
                                    National Retail Federation,
                      National Roofing Contractors Association,
                           National Shooting Sports Foundation,
                 National Solid Wastes Management Associations,
                                 Non-Ferrous Founders' Society,
                        North American Die Casting Association,
                                Printing Industries of America,
                           Retail Industry Leaders Association,
                         Society for Human Resource Management,
         Sporting Arms and Ammunition Manufacturers' Institute,
                               Steel Manufacturers Association,
                        Textile Care Allied Trades Association,
                Textile Rental Services Association of America,
                                      U.S. Chamber of Commerce,
                    Waste Equipment and Technology Association,
                Wood Moulding & Millwork Producers Association.
                                     ______

        [The statement of the U.S. Chamber of Commerce follows:]

                                    ------

        [The statement of the U.S. Department of Justice follows:]

                                    ------

        [The statement of the HR Policy Association follows:]

                                    ------

        [The statement of the National Federation of Independent
    Business follows:]

                                                      January 29, 2008.
    Hon. George Miller, Chairman,
    Hon. Howard ``Buck'' McKeon, Ranking Member,
    Committee on Education & Labor, U.S. House of Representatives,
            Washington, DC.
        Dear Chairman Miller and Ranking Member McKeon: On behalf of the
    National Federation of Independent Business (NFIB), the nation's
    leading small-business advocacy group, I am writing to express
    opposition to H.R. 3195, the ``ADA Restoration Act.''
        The 1990 Americans with Disabilities Act (ADA) provides important
    and necessary protections against disability discrimination in the
    workplace. H.R. 3195 would dramatically expand the original ADA by
    changing the definition of disability, expanding coverage to less
    severe impairments. H.R. 3195 is inconsistent with the original intent
    expressed by Congress to protect individuals who are substantially
    limited by severe disabilities. Trivializing the concept of
    ``disability'' will inappropriately divert employer resources from
    those who need them most.
        NFIB opposes H.R. 3195 because it does not aim to make any positive
    policy changes to an already complex ADA law. NFIB approves of
    Congressional considerations to improve small employers' ability to
    comply with the law, such as a grace period for accommodating disabled
    employees. In an 2000 member ballot survey, 97 percent of NFIB members
    agreed that small businesses should be given time to correct ADA
    violations before a lawsuit can be filed against them.
        Small-business resources are limited, yet small businesses actively
    seek counsel and already contribute a great deal of resources to comply
    with a myriad of confusing employment policy regulations like ADA. More
    challenging, H.R. 3195 does not provide any clear legislative guidance
    or intent on what constitutes a disability. Due to this lack of
    clarity, NFIB is concerned that an individual with occasional headaches
    could file a lawsuit demanding the same protection as an individual
    with serious brain damage. The resulting increase in questionable
    requests for accommodation will only make it more difficult for them to
    assist the severely disabled. It will also certainly increase the
    number of persons that will bring unreasonable disability
    discrimination claims.
        With this, H.R. 3195 would prohibit employers from considering the
    effects of any mitigating measures an individual uses to manage his or
    her impairment. For instance, a small employer would not be able to
    consider the very significant negative effects of medication that may
    be used by employees--such as those which come with warnings with
    respect to operating heavy machinery.
        Finally, H.R. 3195 also includes an unworkable and dramatic
    expansion of employer obligations and reverses a long-established rule
    found in all federal antidiscrimination laws that a person must show
    that she or he is qualified to perform the job. Instead, this
    legislation would shift the responsibility to employers. Under current
    law, if an individual is found to be disabled and qualified to perform
    the essential functions of the job, he or she may request an
    accommodation from the employer. The individual and employer then
    engage in an interactive process to reach a reasonable accommodation so
    the employee can perform his or her job.
        Last year, the EEOC received 15,575 charges of discrimination under
    the ADA yet found reasonable cause for discrimination in only 5.6
    percent of the time. NFIB is concerned that H.R. 3195 will only serve
    as additional fodder for trial lawyers, diverting needed resources from
    protecting the rights of the truly disabled. I urge your opposition to
    H.R. 3195.
                Sincerely,
                          Dan Danner, Executive Vice President,
           Federal Public Policy and Political, National Federation of
                                                  Independent Business.
                                     ______

        [Whereupon, at 11:53 a.m., the committee was adjourned.]