[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


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

                                 
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