[Senate Hearing 110-773]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 110-773

                   RESTORING CONGRESSIONAL INTENT AND
                    PROTECTIONS UNDER THE AMERICANS
                         WITH DISABILITIES ACT

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

                                HEARING

                                 OF THE

                    COMMITTEE ON HEALTH, EDUCATION,
                          LABOR, AND PENSIONS

                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                                   ON

  EXAMINING THE AMERICANS WITH DISABILITIES ACT (PUBLIC LAW 101-336), 
 FOCUSING ON S. 1881, TO AMEND THE AMERICANS WITH DISABILITIES ACT OF 
         1990 TO RESTORE THE INTENT AND PROTECTIONS OF THAT ACT

                               __________

                           NOVEMBER 15, 2007

                               __________

 Printed for the use of the Committee on Health, Education, Labor, and 
                                Pensions


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          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

               EDWARD M. KENNEDY, Massachusetts, Chairman

CHRISTOPHER J. DODD, Connecticut     MICHAEL B. ENZI, Wyoming,
TOM HARKIN, Iowa                     JUDD GREGG, New Hampshire
BARBARA A. MIKULSKI, Maryland        LAMAR ALEXANDER, Tennessee
JEFF BINGAMAN, New Mexico            RICHARD BURR, North Carolina
PATTY MURRAY, Washington             JOHNNY ISAKSON, Georgia
JACK REED, Rhode Island              LISA MURKOWSKI, Alaska
HILLARY RODHAM CLINTON, New York     ORRIN G. HATCH, Utah
BARACK OBAMA, Illinois               PAT ROBERTS, Kansas
BERNARD SANDERS (I), Vermont         WAYNE ALLARD, Colorado
SHERROD BROWN, Ohio                  TOM COBURN, M.D., Oklahoma

           J. Michael Myers, Staff Director and Chief Counsel
           Katherine Brunett McGuire, Minority Staff Director

                                  (ii)






                            C O N T E N T S

                               __________

                               STATEMENTS

                      THURSDAY, NOVEMBER 15, 2007

                                                                   Page
Harkin, Hon. Tom, a U.S. Senator from the State of Iowa, opening 
  statement......................................................     1
Kemp, John D., Attorney, Powers, Pyles, Sutter & Verville, P.C., 
  Washington, DC.................................................     4
    Prepared statement...........................................     6
Thornburgh, Dick, Counsel, Kirkpatrick & Lockhart, Preston, 
  Gates, Ellis, LLP, Washington, DC..............................    14
    Prepared statement...........................................    17
Orr, Steven, Pharmacist, Rapid City, SD..........................    19
    Prepared statement...........................................    21
Olson, Camille, Attorney, Seyfarth & Shaw, Chicago, IL...........    23
    Prepared statement...........................................    25
Murray, Hon. Patty, a U.S. Senator from the State of Washington, 
  statement......................................................    36
    Prepared statement...........................................    37
Feldblum, Chai, Director, Federal Legislation Clinic and 
  Professor of Law, Georgetown Law Center, Washington, DC........    38
    Prepared statement...........................................    40

                          ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.:
    Enzi, Hon. Michael B., a U.S. Senator from the State of 
      Wyoming, prepared statement................................    83
    John R. Vaughn, Chairman, National Council on Disability, 
      Washington, DC., prepared statement........................    85
    American Civil Liberties Union, Washington, DC., prepared 
      statement..................................................    90
    Disability Policy Collaboration, prepared statement..........    91
    Letter from the National Council on Independent Living, 
      Washington, DC.............................................    92
    Response to questions of Senator Hatch by Camille A. Olson...    94

                                 (iii)

  

 
                   RESTORING CONGRESSIONAL INTENT AND
                    PROTECTIONS UNDER THE AMERICANS
                         WITH DISABILITIES ACT

                              ----------                              


                      THURSDAY, NOVEMBER 15, 2007

                                       U.S. Senate,
       Committee on Health, Education, Labor, and Pensions,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 2:00 p.m., in 
Room SD-430, Dirksen Senate Office Building, Hon. Tom Harkin, 
presiding.
    Present: Senators Harkin and Murray.

                  Opening Statement of Senator Harkin

    Senator Harkin. Again, I want to welcome all of you here, I 
apologize for being a little late, I'm trying to get a Farm 
bill through also at the same time. That's tough this time of 
the year, no pun intended.
    Thank you all for being here and I welcome you all to the 
Senate's first hearing on S. 1881, the Americans with 
Disabilities Act restoration.
    Very much like the original Americans with Disabilities Act 
in 1990 this current bill is going forward in the spirit of 
genuine bipartisanship.
    My principal co-sponsor in the Senate is Senator Arlen 
Specter of Pennsylvania. A companion measure on the House side 
is co-sponsored by the Majority Leader Hoyer, and the former 
chairman of the House Judiciary Committee, Congressman Jim 
Sensenbrenner.
    The House bill now has 235 co-sponsors on both sides of the 
aisle.
    The ADA was one of the landmark civil rights laws of the 
20th Century. Americans take enormous pride in the progress 
we've made in advancing the laws four goals for people with 
disabilities: equality of opportunity, full participation, 
independent living and economic opportunity.
    Nobody wants to go backwards. But the harsh reality is that 
today we are going backwards. In a series of decisions, the 
U.S. Supreme Court has narrowed the ADA in ways that directly 
contradict the clear intent of Congress.
    When we wrote the ADA, we took the definition of disability 
from Section 504 of the Rehabilitation Act of 1973, a statute 
that was well-litigated and understood. Conditions that were 
commonly understood to be a disability included amputation, 
diabetes, epilepsy, intellectual disabilities, bi-polar 
disorders, and multiple sclerosis.
    In the Senate Labor and Human Resources Committee report we 
said, and I quote,

          ``Whether a person has a disability should be 
        assessed without regard to the availability of 
        mitigating measures, such as reasonable accommodations, 
        or auxiliary aids.''

    Yet in a series of decisions in 1999, the court ruled that 
mitigating measures, prosthetics, medication, hearing aids and 
so on must be considered in determining whether a person has a 
disability under ADA.
    Compounding this error, in 2002 the Court rules that there 
must be, ``A demanding standard for qualifying as disabled.'' 
Together, these U.S. Supreme Court cases have created a supreme 
absurdity. People with serious disabilities are held to 
conditions such as a missing limb or epilepsy who are fortunate 
to find treatments that make them more capable and independent, 
and more able to work, may find they are no longer covered by 
the ADA.
    This means that when individuals, people who--by any common 
sense standard--are disabled, believe they have been victims of 
discrimination, they have no recourse. It has gotten so bad 
that just last spring a lower court concluded that a person 
with what is commonly called mental retardation, was not 
disabled under the ADA.
    In another case, an individual with epilepsy who had, 
``only'' one 15-second seizure per week, on average, was not 
considered to be disabled. And thus, not entitled to the 
protections of the law.
    In yet another recent case, a woman missing her right 
forearm and hand was ruled to be not disabled under the ADA. 
Courts have even denied protection under ADA in cases where the 
employer openly admitted to firing someone because the Court 
held they weren't disabled, so they weren't protected by the 
ADA.
    As others have noticed, this has created a odd Catch-22 
situation. An employer may fire a person for being disabled, 
and then argue that they cannot be sued, because the person is 
not disabled enough to be protected by the ADA. That was the 
experience of Mr. Orr, who's testifying here today.
    There's no question that this is a very serious problem. A 
2006 study found that plaintiffs have lost more than 97 percent 
of ADA employment discrimination claims, more than any 
comparable civil rights statute. Studies have shown that a 
clear majority of the cases are being lost, because courts are 
holding that plaintiffs are not disabled.
    I can tell you with certainty, and so can I believe our 
witnesses today, this is not what Congress intended when we 
passed the law. We need a legislative fix to return us to the 
original intent of the ADA. And that's what S. 1881 does, it 
restores Congress' original intent by clarifying that anyone 
with an impairment, regardless of a successful use of 
mitigating measures, is entitled to seek reasonable 
accommodations in the workplace, and when necessary, attempt to 
prove that they have been victims of discrimination.
    This bill is profoundly important to millions of people 
with disabilities.
    I would point out there's one group, in particular, that 
has a major stake in this legislation. Many thousands of men 
and women are returning from combat in Iraq and Afghanistan 
with missing limbs, traumatic brain injuries, Post-Traumatic 
Stress Disorder and other disabilities.
    Currently, these courageous people are still in uniform, 
still focused on recovery and rehabilitation. But eventually, 
they will return to civilian life, where they will seek 
opportunities to be independent, economically self-sufficient 
and fully included. If they encounter discrimination based on a 
disability, and if they seek redress under the ADA, they will 
likely find themselves, among those, no longer viewed as 
disabled under the ADA. We simply cannot allow this to happen, 
not to war veterans, not to any Americans.
    We cannot go back to the old days of denial, 
disenfranchisement and discrimination, and that's why we need a 
common sense remedy, as provided in S. 1881.
    We have an excellent panel of witnesses this afternoon. I'm 
especially pleased that three of these witnesses were deeply 
involved in the drafting and negotiating and passing of the ADA 
in 1990. They can speak authoritatively about not just the 
congressional intent, but what was the understanding of the 
Administration that strongly supported it under President Bush, 
the passage of the ADA.
    Let me briefly introduce the members of our panel. The 
Honorable Dick Thornburgh, former Governor of Pennsylvania, 
U.S. Attorney General from 1988 to 1991, was a key negotiator 
on behalf of President Bush as we moved forward with the ADA. 
He will testify from the Administration's perspective as to who 
was intended to be covered under the law's definition of 
disability.
    John Kemp, currently an attorney with Powers, Pyles firm, 
the former board member of the National Council on Disability, 
former head of Very Special Arts. He was a key advocate in 
support of the ADA, back in 1990. Mr. Kemp uses both leg and 
arm prosthesis, as he has noted, he might not be considered a 
person with a disability under the U.S. Supreme Court's current 
interpretation. John was very helpful in 1999 on the ADA.
    Professor Chai Feldblum is a Director of the Federal 
Legislation Clinic at the Georgetown University Law Center, 
again, deeply involved with many of us in the late 1980s, 
leading to the passage of the ADA in 1990, is a recognized 
national authority on the law's history and legislative 
language and congressional intent behind the law.
    As I mentioned earlier, Steven Orr was the plaintiff in a 
claim filed under the ADA against Wal-Mart. He's a pharmacist, 
he has diabetes, he asked Wal-Mart for permission to take 30 
minutes each day to eat lunch as a reasonable accommodation to 
control his diabetes. His request was denied, he was fired, he 
sued under ADA, his claim was rejected, under the Court's law 
that he's not disabled.
    Camille Olson is a partner with the law firm of Seyfarth & 
Shaw in Chicago. She has practice in the areas of employment 
discrimination counseling and litigation defense for more than 
two decades. Ms. Olson is a frequent lecturer and author, also 
a member of the U.S. Chamber of Commerce's Policy Advisory 
Committee on equal employment opportunity measures.
    Again, I thank all of you for being here, I thank, 
especially, our witnesses, some of whom came a great distance. 
But more than that, I thank so many of you who were involved 
back in those days of the 1980s, leading up to the passage of 
the bill.
    For those of us who were here at that time and worked 
through that, it's always kind of a shock to me when I talk to 
people who don't know what we went through. Many Senators that 
I serve with now were not here then, as so many members of the 
House were not here then. They don't know that history of what 
went on then.
    It's good to see three of the people, who were here who do 
know the history, who were intimately involved in it.
    I think what I'll do, since I've introduced all of you, 
I'll just start down the line. I'll start with Mr. Kemp first, 
and please take whatever time you need, John, and then we'll 
just go on with Attorney General Thornburgh on down the line, 
we'll just hear from each of you, then we'll open it up for 
discussion.
    John, welcome back, it's good to see you.

 STATEMENT OF JOHN D. KEMP, ATTORNEY, POWERS, PYLES, SUTTER & 
                VERVILLE, P.C., WASHINGTON, DC.

    Mr. Kemp. Thank you, Senator, it's a privilege to be here.
    I am an American, a proud American with a disability, born 
with arms or legs, off essentially at the elbows and the knees. 
I use mitigating measures. Four prostheses that have enabled me 
to be gainfully employed all my work life, and without which 
employment would have been very difficult.
    Unlawful discrimination is un-American. America is the 
beacon of light to the world because our country is based on 
the principles of hope, fairness, and equality of opportunity. 
We expect that people will be judged on the basis of their 
abilities, not on the basis of ignorance and prejudice. 
Unfortunately, our Nation has not fared well in applying these 
principles to people with disabilities.
    Justice Thurgood Marshall summarized our disability policy 
as ``grotesque'' and ``worse than the worst excesses of our Jim 
Crow laws.''
    In 1973 and 1974, Democrats and Republicans came together 
in a bipartisan show of support and banned discrimination on 
the basis of disability by Federal financial recipients, as 
well as Federal contractors.
    Section 504 of the Rehab Act banned discrimination against 
three groups: persons with actual impairments that 
substantially limited their major life activities, persons with 
no actual current impairments, but who had histories of such 
impairments, and person who have never had any actual 
impairments but were regarded, that is, treated as if they had 
such impairments by others.
    In the words of the U.S. Supreme Court, in the Arline 
decision as included in the Senate's ADA report, section 504 
acknowledged that society's accumulated myths and fears about 
disability and disease are as handicapping as the physical 
limitations that flow from actual disabilities.
    Thus, under section 504, our friends, neighbors and family 
members, with the following impairments, among others, enjoy 
protections again discrimination regardless of whether or not 
they took mitigating measures to make themselves more 
employable: epilepsy, insulin-depending diabetes, paraplegia 
and quadriplegia, deafness and hard of hearing, blindness, 
including persons who are legally blind, multiple sclerosis, 
intellectual disabilities--such as mental retardation--manic 
depression and HIV infection.
    In 1989 and 1990, when Congress and the business and 
disability communities considered passage of the ADA, these 
interpretations of section 504 were recognized and accepted by 
all.
    For example, with respect to mitigating measures, the 
Senator's report stated, ``Whether a person has a disability 
should be assessed without regard to the availability of 
mitigating measures.'' Comparable statements appeared in the 
House report.
    The committee reports also included numerous examples of 
persons considered to have a substantial limitation of a major 
life activity. For example, a person who is hard of hearing is 
protected, even though the loss may be corrected through the 
use of hearing aids.
    Likewise, persons with impairments such as epilepsy or 
diabetes were considered to have a substantial limitation of a 
major life activity, even if the effects of the impairment were 
controlled by medication.
    On a personal note, as you have indicated, my right to 
challenge discrimination on the basis of disability is clear 
and unequivocal. I have no hands and feet. The Senate and House 
reports clearly gave me the right to challenge discrimination 
on the basis of disability, without regard to the availability 
of mitigating measures, as in my case, my prostheses.
    The focus of the ADA is not on whether, with my prostheses, 
I can comb my hair, brush my teeth, or perform major life 
activities. The focus of the ADA is on whether I can prove that 
an employer denied me a job or a promotion unlawfully, on the 
basis of disability.
    The committee report also made it clear that section 504 
included persons who did not have actual, substantially 
limiting impairments, as well as persons with no actual 
impairments whatsoever.
    As the House report explains, section 504 applies whether 
or not a person has an impairment, if the person was treated as 
if he or she had an impairment that substantially limits a 
major life activity.
    Congress was concerned that individuals would be denied 
employment as a result of negative attitudes and 
misinformation, such as women in remission from breast cancer. 
Persons with burns or disfiguring scars, and persons associated 
with persons who are HIV-infected, but did not have the 
infection themselves.
    Thus, when the agreement was struck between the business 
and disability communities, and the Members of Congress from 
both sides of the aisle and the Bush administration, the intent 
was clear and unmistaken. ADA protects, and was to be available 
for all individuals who are subjected to adverse treatment 
based on actual or perceived impairment, or by the failures to 
remove societal or institutional barriers. Unfortunately, the 
U.S. Supreme Court in the Sutton trilogy of cases, ignored 
congressional intent. In a shameful display of judicial 
activism, the majority stated, ``We have no reason to consider 
the ADA's legislative history.''
    Because of the U.S. Supreme Court's pronouncements, lower 
courts have denied protections against discrimination on the 
basis of disability to many of the person explicitly identified 
by Congress and the Bush administration to be protected.
    One of the most egregious decisions was recently handed 
down by the 11th Circuit Court of Appeals. That Court denied 
protection against employment discrimination to a 29-year-old 
man who was diagnosed with mental retardation, who currently is 
receiving cash benefits under SSI, because of the severity of 
his disability, and who has the intellectual functioning of an 
8-year-old, according to the Court.
    Senators, using the reasoning of the U.S. Supreme Court 
regarding mitigating measures, a judge could easily deny 
protection against disability discrimination to wounded 
warriors returning from Iraq, who have been fitted with state-
of-the-art prostheses.
    Unlike the courts, Congress has every reason to consider 
ADA's legislative history. I urge you to restore the rights and 
protections agreed to in 1990 by members of the disability and 
business community, by Members of Congress and the Bush 
administration. People should not be subjected to 
discrimination on the basis of disability, whether based on 
actual or perceived impairment.
    Over my 30 years of working with the business community, I 
can unequivocally say, the structure of the ADA Restoration Act 
is fully consistent with the approaches taken by progressive 
companies, which are to provide accommodations for all of their 
employees, in order to maximize their productivity, and thus 
their profitability. That's what business really cares about.
    We must, once again, come together and say no to 
discrimination and yes to hope, fairness and equality of 
opportunity for all. Thank you.
    [The prepared statement of Mr. Kemp follows:]
                   Prepared Statement of John D. Kemp
                    i. introduction and recognition
    Good morning. As I prepared for today's testimony and reviewed the 
substantial history and documentation surrounding the momentous passage 
of the Americans with Disabilities Act, there was a certain reference 
that I stumbled upon again and again. It was a reference to the promise 
of the founders, articulated with simple grace more than 230 years ago:

          ``We hold these truths to be self-evident--that all [people] 
        are created equal. That they are endowed by their creator with 
        certain inalienable rights.''

    How appropriate these words were for that occasion, and for this 
one. For those words have served as a beacon for all of us--and for the 
world--toward which we continue to strive.
    But the history of our Nation has shown that ``equality'' under the 
law is not a gift that is easily given, but instead is a treasure of 
the most sacred kind, which must be fought for and protected in order 
to be gained and held. This country has seen many such battles, 
including those against the dark legacies of racial and gender 
discrimination. It is through these struggles that we as a nation, and 
as individuals, move closer to the ideal and the truth upon which this 
country was founded.
    In 1990, 216 years after Thomas Jefferson scripted his most famous 
words, and its promise was made, and 26 years after the passage of the 
Civil Rights Act, this body came together and, in an extraordinary, 
bipartisan manner, said no to discrimination on the basis of 
disability. With the passage of the Americans with Disabilities Act, 
this Nation took a monumental, long-awaited step in its long journey 
toward full and equal rights for all of its citizens.
    The heroes of the ADA are here with us today: Senator Tom Harkin, 
sponsor of the ADA whose tireless commitment and deep dedication made 
the achievement possible. Senator Bob Dole, who guided and shepherded 
this legislation from the outset and whose unwavering leadership has 
served as an inspiration to all. Attorney General Dick Thornburgh, who 
played such a critical role in supporting and enforcing the 
legislation. Congressmen Tony Coelho, Steny Hoyer and Steve Bartlett 
who championed the cause of equality and inclusion for people with 
disabilities.
    The heroes of the ADA also included members of the disability and 
business communities who were willing to work together with Members of 
Congress to draft the ADA and the committee reports reflecting clear 
and unambiguous congressional intent. To these individuals, and to the 
many, many others who worked to make the ADA a reality, we say ``thank 
you.''
    Thank you, because in 1990, largely as a result of your work and 
commitment, we recognized, acknowledged, and sought to alter forever 
the dark history of discrimination on the basis of disability; a 
history fraught with ignorance, indignity, suffering, exclusion, and 
waste of human life and potential. A history of segregation and 
discrimination that, in the words of civil rights champion and Supreme 
Court Justice Thurgood Marshall, ``in its virulence and bigotry 
rivaled, and indeed paralleled, the worst excesses of Jim Crow.''
           ii. history of discrimination in the united states
    I am by nature an optimist, and today is about looking forward with 
hope, determination, and with the aim of ensuring the greater success 
of the Americans with Disabilities Act. It is important to pause and 
remember this difficult history, a history that included, until very 
recently, laws that prohibited certain American citizens from appearing 
in public. A Chicago ordinance in effect until 1974 imposed a fine upon 
any individual who ``exposes himself to public view'' who was 
``diseased, maimed, or in any way deformed so as to be an unsightly or 
disgusting object.''
    Discrimination on the basis of disability also permeated our public 
schools. Until 1975, the State of Maine had a statute which gave the 
school board the authority to ``exclude from the public schools any 
child whose physical or mental condition makes it inexpedient for him 
to attend.'' This same policy was reflected in legislation in virtually 
every State in the Nation.
    In 1919, the Wisconsin Supreme Court upheld the exclusion from 
school of a child with cerebral palsy, writing that the child's 
appearance produced a ``depressing and nauseating effect'' upon his 
teachers and the other children that his condition required ``undue'' 
time and attention of the teacher, and that he ``interferes generally 
with the discipline and progress of the school.'' The court concluded 
that the child's presence was ``harmful to the best interests of the 
school.''
    Forced sterilization on the basis of disability was also permitted 
in this country. In 1927, the U.S. Supreme Court addressed the 
constitutionality of a State law which allowed the sterilization of 
institutionalized people with mental disabilities. The court upheld the 
law, and acclaimed Justice Oliver Wendell Holmes wrote:

          ``In order to prevent our being swamped with incompetence, it 
        is better for all the world, if instead of waiting to execute 
        the degenerate offspring for crimes, or to let them starve for 
        their imbecility, society can prevent those who are manifestly 
        unfit from continuing their kind.''

    And particularly in the 20th century, children as well as adults 
were often subject to lives of forced institutionalization on the basis 
of disability. They were hidden from public view, isolated from family 
and friends and excluded from the mainstream of life. Leading medical 
authorities began to portray people with mental disabilities as ``a 
menace to society and civilization . . . responsible in large degree 
for many, if not all, of our social problems.''

    It was said that people with intellectual disabilities caused 
``unutterable sorrow at home and are a menace and danger to the 
community.'' They were considered a danger to the ``social, economic, 
and moral welfare of the State.''
    And there were, of course, the more insidious forms of ``every 
day'' discrimination: social ostracization, the inaccessibility of 
retail establishments, eating establishments, public transportation, 
places of public gathering, and job sites.
    Justice Marshall summed up this unfortunate history well when he 
observed that ``Massive custodial institutions were built to warehouse 
the retarded for life; the aim was to halt reproduction and nearly 
extinguish their race. Many disabled children were categorically 
excluded from public schools, based on the false stereotypes that all 
were uneducable and on the purported need to protect non-disabled 
children from them. State laws deemed the retarded ``unfit for 
citizenship.'' Justice Marshall concluded that persons with 
disabilities have been subject to a history of discrimination that is 
both tragic and grotesque. In the words of former Senator Lowell 
Weicker, people with disabilities spend a lifetime ``overcoming not 
what God wrought but what man imposed by custom and law.''
    This brief review of our Nation's history of discrimination on the 
basis of disability provided the backdrop for the comprehensive reports 
and clarion call for action by 15 members of the National Council on 
Disability appointed by President George H.W. Bush. Based on reports by 
NCD and others, Congress concluded that there was a compelling need to 
establish a clear and comprehensive Federal prohibition of 
discrimination on the basis of disability.
    The statement of findings in the ADA and the Senate and House 
committee reports explain the purposes of the ADA. The committee 
reports, in the words of Senator Dole sought to put an end to 
``prejudice, isolation, discrimination, and segregation,'' and to 
address and dispel the myths and false perceptions of people with 
disabilities, which have formed the basis for past misguided policies.
    The committee reports make several clear, unequivocal statements of 
intent. First, discrimination on the basis of disability includes 
denying equal opportunity to persons who have actual impairments that 
substantially limit major life activities (i.e., more than minor or 
trivial impairments). Examples included discrimination on the basis of 
deafness, blindness, paraplegia, HIV, developmental disability, mental 
illness. The House and Senate Reports also make it clear that persons 
with medical conditions that are under control such as persons taking 
medication for diabetes and epilepsy and high blood pressure may make 
claims of discrimination on the basis of disability. In other words, 
whether a person has an actual impairment should be assessed without 
regard to the availability of mitigating measures.
    Second, discrimination on the basis of disability includes denying 
equal opportunity to an individual who does not have an impairment but 
simply has a record of an impairment. Congress concluded that it is 
critical to protect individuals who have recovered from an impairment 
as well as persons who had been misclassified as having an impairment. 
Examples include persons with histories of mental or emotional illness, 
heart disease, or cancer; examples of those misclassified as having an 
impairment include persons misclassified as mentally retarded.
    Third, discrimination on the basis of disability includes denying 
equal opportunity by taking adverse action against an individual 
whether or not the person has an actual impairment i.e., a person who 
is regarded as having a disability. Congress explained that it wanted 
to protect individuals from discrimination because of the negative 
reactions of others. The House and Senate committee reports quote the 
U.S. Supreme Court case of School Board of Nassau County v. Arline 
(interpreting Section 504 of the Rehabilitation Act), ``Congress 
acknowledged that society's accumulated myths and fears about 
disability and diseases are as handicapping as are the physical 
limitations that flow from actual impairment.''
    For example, if a an employer refused 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 able to make a 
claim of discrimination under the ADA.
    In sum, Congress correctly intended the ADA to protect all 
individuals who are subjected to adverse treatment based on actual or 
perceived impairment, or record of impairments 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.
         iii. the topic of testimony: employment--recent cases
    One of the primary areas that the ADA sought to address was that of 
employment. As was recognized by those who worked so hard for the 
passage of the ADA, denial of equal employment opportunity on the basis 
of disability debases and undermines the quest for equality and 
dignity. Discrimination on the basis of disability perpetuates 
exclusion and separation; it contributes to the false perception that 
some people are less than capable, or not equally capable, and cannot 
contribute or compete in the mainstream; and it creates and compels 
dependence on government subsidies and programs without fair access to 
competitive employment; In short, discrimination on the basis of 
disability perpetuates the cycle of segregation, isolation, and 
poverty.
    Discrimination on the basis of disability in employment not only 
limits dreams and encourages alienation and economic dependence, it 
weakens our Nation as a whole. As President George H.W. Bush stated in 
1991, ``No nation, no matter how wealthy, has ever been able to afford 
the waste of human talent and potential. That is particularly true 
today,'' he wrote, ``as the world economy continues to grow in size and 
sophistication.'' \1\ The President's words have the same force today 
as they did 16 years ago, perhaps more. In the growing global economy, 
and increasingly competitive global workplace, this country cannot 
afford to overlook one of its greatest human resources--a population of 
willing, capable, talented, and competent Americans--who stand ready to 
contribute.
---------------------------------------------------------------------------
    \1\ 56 Fed. Reg. 51,145 (Oct. 10, 1991).
---------------------------------------------------------------------------
    In a nutshell, in the words of Senator Dole, the ADA offered 
``accessible environments and reasonable accommodations to empower 
persons with disabilities to utilize their full potential.'' So, in 
1990 we were off to a wonderful start--a start that was in sync with 
the clear intent of this body.
    Unfortunately, however, the promise of that start has not come to 
fruition. Not because of any lack of diligence by Congress and all 
those who labored to bring about this historic legislation--but because 
of mistaken, limiting constructions of its intent and meaning. 
Beginning in the late 1990's, a series of judicial opinions began to 
emerge, which have undermined the purpose and effect of the ADA. Among 
other things, the Supreme Court has ruled, in direct contravention of 
congressional intent, that the ADA must be strictly interpreted to 
create a ``demanding standard for qualifying as disabled.'' The court 
has also ruled that mitigating measures--including medications, 
prosthetics, hearing aids, and other auxiliary devices, must be 
considered in determining whether an individual has a disability under 
the ADA.\2\ The Court, in reaching this decision, had the nerve to 
state that it `` had no reason to consider the ADA's legislative 
history.'' In so doing, the court has significantly narrowed the scope 
of conditions that were specifically intended to be covered by the act, 
including epilepsy, diabetes, HIV infection, depression, cancer, and 
intellectual and developmental disabilities, bipolar disorder, multiple 
sclerosis, hard of hearing, visual impairments, post-traumatic stress 
disorder, heart disease, depression, and asthma.\3\
---------------------------------------------------------------------------
    \2\ Consortium for Citizens with Disabilities, Failing to Fulfill 
the ADA's Promise and Intent: The Work of The Courts in Narrowing 
Protection Against Discrimination on the Basis of Disability (Sept. 
2006) (unpublished manuscript, on file with author), citing Sutton v. 
United Airlines, Inc., 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).
    \3\ Consortium for Citizens with Disabilities, Failing to Fulfill 
the ADA's Promise and Intent: The Work of The Courts in Narrowing 
Protection Against Discrimination on the Basis of Disability (Sept. 
2006) (unpublished manuscript, on file with author).
---------------------------------------------------------------------------
    The Supreme Court's rulings have created an untenable situation for 
individuals who are taking self-help steps to control their illnesses 
or mitigate the effects of their impairments. If they avail themselves 
of treatment that improves their condition and prolongs their health 
and life, they are no longer ``covered'' by the protections of the ADA, 
and cannot challenge discriminatory treatment under the act. These 
opinions, and their progeny, create a bizarre legal scenario in which 
an employer can refuse to hire or terminate an individual expressly 
because of their disability, and then--when challenged--argue that the 
individual is not ``disabled enough'' to fall within the protections of 
the ADA. Thus, while the employer's practices may be overtly 
discriminatory on the front end, those practices cannot be challenged 
``on the back end'' under the ADA. If this sounds confusing to you--or 
nonsensical--that's because it is. My friends, we are truly ``through 
the looking glass'' here.
    I'd like to take a moment and give you a few examples of how this 
confounding reasoning has worked against people with disabilities. I'll 
start by telling you a bit about the case of a young man named Charles 
Irvin Littleton, Jr. Mr. Littleton is a 29-year-old man with 
intellectual disabilities. He lives at home with his mother and 
receives social security benefits because of his disability. In 2003, 
Charles' job counselor helped him to arrange an interview for a 
position as a cart-pusher at a large, well-known retail establishment. 
Charles' job counselor, Carolyn Agee, asked in advance if she could sit 
in on the interview with Charles, and the personnel manager agreed. 
When Ms. Agee and Mr. Littleton arrived at the store, however, Ms. Agee 
was not permitted to attend the interview. After the interview, the 
company refused to hire Charles.
    Charles brought a discrimination claim against the company under 
the ADA. The court never reached the question, however, as to whether 
Charles was qualified for the job or whether the company had 
discriminated against him on the basis of his disability. Rather, the 
court extinguished the matter before ever reaching these substantive 
questions by finding, in accordance with the company's arguments, that 
Charles was not ``disabled'' under the ADA. The court made this finding 
despite Charles' explanations that (1) his cognitive ability was equal 
to that of an 8-year-old child, (2) he needed a job counselor to 
accompany him during the interview process and at the workplace itself, 
until he became comfortable with his job responsibilities, (3) that he 
had ``difficulty thinking and communicating,'' which the court itself 
had observed in the delivery of his testimony, (4) that he was 
substantially limited in the ability to communicate with others as a 
result of his disability, and (5) that he was substantially limited in 
the major life activity of working, as demonstrated by his receipt of 
social security disability benefits, which are granted only to those 
who are unable to work by virtue of significant impairments in ability.
    Despite these arguments, the court found that, because Charles 
could drive a car, had graduated from high school with a special 
education certificate, and had attended a technical college and was 
able to read and comprehend, he was not substantially limited in the 
major life activities of thinking and learning. The court also found 
that although Charles was not hired for this particular position, there 
were other jobs that he could do, and therefore that his disability did 
not substantially limit him in the major life activity of working. In 
other words, while Charles' disability may have been the catalyst for 
the denial of employment by this company, he was not disabled enough to 
be protected from discriminatory hiring practices under the ADA.\4\
---------------------------------------------------------------------------
    \4\ Consortium for Citizens with Disabilities, The Effect of the 
Supreme Court's Decisions on Americans with Disabilities (unpublished 
manuscript, on file with author), citing Littleton v. Wal-Mart Stores, 
Inc., No. 05-12770, 2007 WL 1379986 (11th Cir. May 11, 2007).
---------------------------------------------------------------------------
    Let me share with you the story of Mary Ann Pimental. Mary Ann was 
a registered nurse who lived in New Hampshire with her husband and two 
children. She worked in a hospital. After 5 years of employment at the 
hospital, Mary Ann was promoted to the nurse management team. About 1 
year later, she was diagnosed with Stage III breast cancer.
    Mary Ann took some time away from work to undergo a mastectomy, 
chemotherapy, and radiation treatments. While she was receiving her 
treatment, the hospital eliminated Mary Ann's position. When she was 
well enough to return to work, Mary Ann re-applied for several 
different positions at the hospital, but was not hired. Eventually, the 
hospital hired her back as a staff nurse for only 20 hours per week, 
without the higher level of benefits accorded to those working more 
than 30 hours per week.
    Given her strong performance history, and the fact that she had 
been asked by her employer about her ability to perform her nursing 
duties while being treated for cancer, Mary Ann believed that the 
hospital's decision to hire her back in a part time, diminished 
capacity was related to her breast cancer. When Mary Ann challenged the 
hospital's decision under the ADA, the hospital argued that Mary Ann 
did not have a disability, and hence was not protected by the ADA. In 
response, Mary Ann offered highly personal evidence and information to 
her employer that demonstrated how her breast cancer had substantially 
impacted her life. She noted her hospitalization for mastectomy, 
chemotherapy, and radiation therapy; she shared that she had problems 
concentrating, memory loss, extreme fatigue, and shortness of breath; 
that she experienced premature menopause brought on by chemotherapy, 
burns from radiation therapy, pain in her shoulder resulting in an 
inability to lift her arm above her head, sleep deprivation caused by 
nightmares, difficulty in intimate relations with her husband as a 
result of her premature menopause and self-consciousness about her 
mastectomy, and that she needed assistance from her husband and mother 
in caring for herself and her two children, because of extreme fatigue 
and difficulties performing basic household tasks.
    When Mary Ann returned to work, she was still receiving radiation 
treatment and experiencing great fatigue. She could not lift her arm 
above her head, experienced concentration and memory problems, and 
still received help with household and childcare tasks. Despite this 
painful litany, the hospital maintained that Mary Ann did not have a 
disability under the ADA because she hadn't shown a substantial 
limitation of a major life activity, and the court agreed. It wrote:

        ``[while] [t]here is no question that plaintiff 's cancer has 
        dramatically affected her life, and that the associated 
        impairment has been real and extraordinarily difficult for her 
        and her family, Mary Ann failed to show that she had been 
        limited by breast cancer on a permanent or long-term basis.'' 
        \5\
---------------------------------------------------------------------------
    \5\ Consortium for Citizens with Disabilities, The Effect of the 
Supreme Court's Decisions on Americans with Disabilities (unpublished 
manuscript, on file with author), citing Pimental v. Dartmouth-
Hitchcock Clinic, 236 F.Supp.2d 177, 184, 188 (D.NH. 2002).

    Mary Ann Pimental died of breast cancer 4 months after the court 
issued its decision.
    The stories of Charles Littleton and Mary Ann Pimental are but two 
examples--two tragic, confounding examples--of the misconstruction of 
the intentions of this body and the contravention of the broad sweep of 
the ADA. In these cases, and others like them, the courts and the 
employers never reach the substantive question under the ADA--the 
question of whether the employer's action was improperly related to the 
individual's disability. That inquiry is circumvented--it ends before 
it begins--with the narrow construction of ``disability,'' and a 
finding that individuals who are clearly disabled, who are entitled to 
the protections of the ADA, and whom the ADA was intended to protect--
are not sufficiently disabled to warrant its protections. And there are 
many more stories: Stephen Orr was fired from his job as a pharmacist 
after his employer refused to allow him to take a lunch break so that 
he could regulate his blood sugar and control his diabetes by eating. 
But because Stephen managed his diabetes through regimented food intake 
and medication, the court ruled that he was not substantially limited 
in any major life activity, and therefore was not protected from 
discrimination under the ADA.\6\ Vanessa Turpin was an auto packaging 
machine operator with epilepsy, who resigned after her employer 
required that she work a shift that would have worsened her seizures. 
The court held that although Vanessa experienced nighttime seizures 
characterized by ``shaking, kicking, salivating, and, on at least one 
occasion, bedwetting'' and that caused her to wake with bruises on her 
arms and legs, Vanessa was not disabled because ``[m]any individuals 
fail to receive a full night of sleep.'' The court also found that 
Vanessa's daytime seizures, which caused her to become unaware and 
unresponsive to her surroundings and to suffer memory loss, did not 
render her disabled because ``many other adults in the general 
population suffer from a few incidents of forgetfulness a week.'' \7\
---------------------------------------------------------------------------
    \6\ Consortium for Citizens with Disabilities, Failing to Fulfill 
the ADA's Promise and Intent: The Work of The Courts in Narrowing 
Protection Against Discrimination on the Basis of Disability (Sept. 
2006) (unpublished manuscript, on file with author), citing Orr v. Wal-
Mart Stores, Inc., 297 F.3d 720 (8th Cir. 2002).
    \7\ Consortium for Citizens with Disabilities, Failing to Fulfill 
the ADA's Promise and Intent: The Work of The Courts in Narrowing 
Protection Against Discrimination on the Basis of Disability (Sept. 
2006) (unpublished manuscript, on file with author), citing Equal 
Employment Opportunity Comm'n v. Sara Lee Corp., 237 F.3d 349 (4th Cir. 
2001).
---------------------------------------------------------------------------
    These cases are painful to recount. And unfortunately, there are 
many more. The Supreme Court has set the standard--a standard that is 
in direct opposition to the intent of this body--and the lower courts 
have followed, creating a barrage of incorrectly reasoned opinions that 
un-do and negate the good that this body expressly endeavored to 
achieve.
    Recent studies show that plaintiffs lose more than 90 percent of 
cases brought under the ADA, primarily on the grounds that they are not 
disabled enough.\8\ Thus, the courts never reach the question of 
discrimination under the ADA, and these matters are dismissed on the 
basis that the complainant does not qualify as ``disabled'' under the 
Supreme Court's narrow and strict definition. These cases affirm the 
dire necessity of this gathering, and the necessity of further action 
to clarify--so that there can be no further mistakes by employers or 
the courts--that these individuals are covered and protected by the 
ADA.
---------------------------------------------------------------------------
    \8\ Congressman Steny Hoyer, Not Exactly What We Intended, Justice 
O'Connor, www.washingtonpost.com, Jan. 20, 2002.
---------------------------------------------------------------------------
    If our voices were not heard clearly in 1990, let them be heard 
again--forcefully and unequivocally--so that there will be no mistake 
as to our intentions; and no mistake that individuals like Charles 
Littleton and Mary Ann Pimental and Stephen Orr and Vanessa Turpin are 
entitled to the full and complete protection of this legislation.
    Let me be clear--we do not seek to govern the outcome of these 
cases--we do not argue today that each of the complainants in the 
[number] cases would have prevailed in their discrimination claims. We 
simply state that where an individual alleges discrimination on the 
basis of disability his or her claim should at least be heard and 
decided--should rise or fall--on its merits as intended by Congress. 
The ADA promises no less.
                       iv. employment statistics
    While some employers clearly seek loopholes in the ADA and try to 
avoid compliance with its terms, it is important to note that there are 
others that have embraced the ADA, and have taken a proactive approach 
to developing inclusive, accessible workplaces. These employers 
include, among others, IBM, Merrill Lynch, CVS, Hewlett-Packard, JP 
Morgan Chase, SunTrust and Lockheed. Let these companies be the proud 
vanguard for other businesses to follow. And follow they must; for 
despite this great legislation, and the courageous work of so many, 
there is still much that is unchanged. Despite the passage of the ADA 
over 17 years ago, and despite its effort to prevent discrimination on 
the basis of their disability in gaining employment, statistics 
indicate that little has changed in terms of the numbers of people with 
disabilities entering the job market. According to some statistics, the 
employment rate for people with disabilities has remained in the 
vicinity of 35 percent since World War II.\9\ Nearly \2/3\ of people 
with disabilities are unemployed. Since 1995, the employment rate for 
women who are not disabled has been 80.06 percent, for women with 
disabilities the employment rate is 33.06 percent. Since 1995, the 
employment rate for men who are not disabled has been 94.96 percent, 
and for men with disabilities the employment rate is 36.21 percent. For 
college graduates (male and female) without disabilities, the 
employment rate is 89.9 percent. For college graduates with 
disabilities, the employment rate is 50.6 percent. The median household 
income for women with disabilities has been $13,974; for disabled men, 
the median household income has been $15,275.\10\
---------------------------------------------------------------------------
    \9\ Center for an Accessible Society, Labor Day and People with 
Disabilities, available at http: 
//www.accessiblesociety.org/topics/economics-employment/labor2001.htm.
    \10\ Id.
---------------------------------------------------------------------------
    These numbers--which infer an unemployment rate for people with 
disabilities of roughly 65 percent, are alarming. The large employment 
gap between people with disabilities and those without disabilities--a 
gap of roughly 50 percent--is alarming. These numbers tell us that, 
although this legislation is ``on the books,'' so to speak, and has 
been ``on the books'' for 17 years--there is a disconnect that is 
inhibiting the fulfillment of the promise of the ADA, and that is 
preventing the removal of barriers to full participation in the 
mainstream job market.
    What is the source of this disconnect, we must ask. Apart from the 
recent case law history, which sends a message to employers that they 
can ``get around'' the ADA with the right manipulation or maneuvering, 
research has shown that changing hearts and minds is a difficult task 
when it comes to creating and catalyzing change. Employers in at least 
one study stated that the most difficult adjustment to make in order to 
meet the needs of an employee with a disability was ``changing co-
worker/supervisor attitudes.'' According to this study, changing 
attitudes was rated as ``difficult'' more than twice as often as other 
adjustments, such as ``changes to management system,'' and 16 times as 
often as ``ensuring equal pay and benefits'' for employees with 
disabilities.\11\
---------------------------------------------------------------------------
    \11\ Id.
---------------------------------------------------------------------------
    No change or growth or evolution is ever without difficulty, 
however. Legislation is the first, critical step forward on this 
journey. But words alone, without employer action and enforcement, can 
only take us so far in achieving true integration, in changing 
attitudes and hearts and minds. Employers must not only ``talk the 
talk'' with appropriately worded anti-discrimination policies, but must 
also ``walk the walk,'' so to speak, by working in partnership with the 
principles of the ADA, educating their employees--from the top down--
and making their workplaces accessible to disabled employees. They must 
create and maintain a corporate culture of inclusion, fairness, and 
respect for diversity in thoughts and ideas. And they must realize that 
this is not an act of charity.
    According to surveys conducted by the DuPont Corporation and other 
companies, employees with disabilities have lower turnover rates, lower 
absenteeism, and high productivity. Successive studies by DuPont 
showed, consistently, that 90 percent of employees with disabilities 
were considered average or better than average in job performance.\12\ 
And there is talent out there to perform jobs at all levels of 
enterprise--from senior executives with disabilities to mid-level 
employees to entry-level candidates. The National Business Services 
Alliance has a new Disability Employment Institute, which, among other 
things, offers CEO and manager training courses to people with 
disabilities. Programs like these are critically important in helping 
to integrate the employment sector at every level and maintaining a 
strong American workforce. By 2010, it is estimated that America will 
have 168 million jobs and only 158 million workers to perform these 
jobs. ``Tapping'' the pool of willing, capable, and talented workers 
with disabilities could be our national solution to that impending 
shortage.
---------------------------------------------------------------------------
    \12\ Id.
---------------------------------------------------------------------------
    Moreover, creating inclusive, accessible workplaces goes a long way 
in creating good will with the community of people with disabilities--a 
community that is now approximately 54 million strong in the United 
States alone. This is a powerful consumer base, and a base that is 
continually growing. There are 76 million people over the age of 50 in 
this country, and by 2020 this number will have grown to 116 million, 
or 36 percent of the population. As the baby boomers grow older, and as 
they seek both to remain in the workforce longer and to patronize 
businesses that meet their growing physical, information and 
communication accessibility needs, this progressive and powerful 
generation will continue to influence the way companies do business, 
both internally and externally.
    To put it simply--accessible and inclusive workplaces are not only 
the law, not only an ethical imperative, but they are also sound 
business practice. In creating and pursuing integrated hiring practices 
and accessible environments for employees with disabilities, employer-
businesses can tap an under-utilized segment of the work force as well 
as a significant, but often overlooked, consumer base. And perhaps most 
important, we must remember that integrating the workforce, expanding 
our worlds, and encouraging policies and practices that foster the 
potential of all employees--those with disabilities and those without--
is good for everyone.
           v. veterans issues/the future/ convention/closing
    I will begin my closing remarks by recalling that, in 1990, Senator 
Harkin dedicated the ADA to the ``next generation.'' Esteemed 
colleagues, Senators, Congressmen and Congresswomen, that generation is 
here. They are our children and our grandchildren; our brothers and 
sisters. They are born with disabilities, they acquire disabilities 
through illness or accident, they age into disabilities. And it goes 
without saying that they are also the wounded sons and daughters of the 
conflicts in Iraq and Afghanistan. Recent estimates state that more 
than 20,000 men and women have been wounded in these military 
operations.\13\ Iraq veterans have seen twice the number of amputations 
as veterans of previous wars, and some of these soldiers have lost more 
than one limb.\14\ Young men and women are returning home with 
significant injuries in unprecedented numbers, as the quality of care 
in the field enables them to survive what might in earlier wars have 
been fatal injuries. Many servicemen and women--a recent report 
suggested approximately 6 percent--are returning with mental health 
problems, and more than half from Iraq/Afghanistan conflict are 
returning with what many are calling the ``signature wound'' of the 
Iraq war--traumatic brain injury.\15\
---------------------------------------------------------------------------
    \13\ Intrepid Fallen Heroes Fund, Facts and Statistics (2007), 
available at www.fallenheroesfund.org/common/
page.php?ref=fund_statistics.
    \14\ Amputation Rate for U.S. Troops Twice That of Past Wars, The 
Boston Globe (Dec. 9, 2004), available at www.boston.com/news/mnation/
articles/2004/12/09/amputation_rate_for_us_ 
troops.
    \15\ Gregg Zoroya, Key Iraq Wound: Brain Trauma, USA Today (March 
3, 2005), available at www.usatoday.com/news/nation/2005-03-03-brain-
trauma-lede_x.htm.
---------------------------------------------------------------------------
    These men and women--and all those who live with a disability of 
any kind or source--need our attention and our continued vigilance and 
commitment in seeing to it that this legislation serves its intended 
purpose, and that all of our children have the opportunity to live 
strong, productive lives and pursue their dreams to the greatest extent 
of their will and desire. Seventeen years later, it is not yet time to 
rest. It is time, instead, to strengthen, renew and restore our energy 
and our commitment to restore the rights and promises of the Americans 
with Disabilities Act of 1990.
    We here have made a promise to all the members of this new 
generation. It is a promise that must be kept, not just in word, but in 
deed. We have promised them the opportunity for good, rich, productive 
lives; we have promised them education, inclusion in the workforce, the 
financial ability to raise families. For wounded veterans and others--
many of them parents--this means being able to resume their place as an 
economic contributor within their families. We must see to it that 
discrimination on the basis of disability does not mean an end of life 
or productivity, that our sons and daughters in military service do not 
return to a country in which they have no place. We had better learned 
these painful lessons from the Vietnam War. We must see to it that 
individuals are not shut out of the mainstream workforce because of 
discrimination on the basis of disability. For unless this trend 
changes, they--we--will be kept in a cycle of poverty, personal 
dependence, and economic dependence on government subsidies, which 
serves to undermine dreams and to waste human potential. Let us affirm 
today that we will not allow that, that the door to the past is forever 
closed.
    And finally, let us commit, today, to re-taking our place of 
leadership upon the world stage. In August 2006, a United Nations 
general assembly panel passed the U.N. Convention on the Rights of 
Persons with Disabilities, by the full U.N. General Assembly in 
December 2006, a treaty intended to expand the freedoms of 650 million 
people with disabilities, worldwide. The treaty, which is expected to 
take effect in 2008 or 2009, with the 20th member nation formally 
ratifying it, requires countries to guarantee freedom from exploitation 
and abuse, and protects against discrimination in all areas. It 
addresses access to the full range of human rights--civil, political, 
economic, social, and cultural, and focuses particular attention on the 
treatment of women and children with disabilities. Some of the primary 
principles set forth in the treaty include: (1) the equal right to life 
for people with disabilities; (2) equal rights for women and girls with 
disabilities; (3) an end to enforced institutionalization; (4) the 
right to equal participation in the job market; and (5) removal of 
barriers to accessibility in the areas of transportation, public 
facilities, and communications, including the Internet.
    On March 30, 2007, the treaty opened for signature and 
ratification. More than 100 Member States and the European Community 
signed the Treaty, with Jamaica being the first country to go beyond 
endorsement to ratification. [To date, the United States has not signed 
this Treaty.] Let us see to it that this does not remain the case, and 
that America is not left behind. Let today's gathering, and the passage 
of the ADA Restoration Act, signal to the world that America is re-
claiming her rightful place as a leader among nations, and re-
committing herself to this cause--the cause of human rights, of equal 
opportunity and dignity for all of its citizens, and for those around 
the world.
    I thank you all for your time and attention.

    Senator Harkin. John, thank you again for a very 
provocative statement. Very provocative. And as I've said 
before, your high intellect is only matched by your passion on 
this issue. And I thank you very much for so many years, being 
in the forefront of this fight. Thank you again, really, I 
think for encapsulating what the real issue is.
    Dick Thornburgh, what can I say? I just welcome you back 
again, and all of you here who may not have been around in the 
1980s, this is one of our real unsung heroes of the ADA. I can 
remember the meetings we had here, trying to work things out--
legislation is always just tough. And working them out, I 
remember then-Attorney General Thornburgh as being the voice of 
reason, bringing people together, to work out these 
differences, smooth them over and make sure we had legislation 
we could pass. And I always remember that, and ever since then, 
you've always been a strong, strong advocate for people with 
disabilities.
    I thank you for being here today, Attorney General 
Thornburgh.

STATEMENT OF DICK THORNBURGH, COUNSEL, KIRKPATRICK & LOCKHART, 
          PRESTON, GATES, ELLIS, LLP, WASHINGTON, DC.

    Mr. Thornburgh. Thank you, Senator, I too, am pleased to be 
here before you today, to testify about the need for 
consideration and passage of the ADA Restoration Act, S. 1881.
    When I served as Attorney General under George H.W. Bush, 
one of my proudest achievements was indeed working on the 
passage of the ADA. As parents of a child with physical and 
intellectual disability, both my wife and I fully understand 
the importance of the ADA to 54 million Americans with 
disabilities and their families.
    The ADA, which sets as its goals, equality of opportunity, 
full participation, independent living and economic self-
sufficiency for people with disabilities, is one of the most 
significant pieces of civil rights legislation in the past 25 
years, and has changed the lives of millions of Americans with 
disabilities.
    On occasions like this, I always have in my mind, that 
glorious sun-filled day, July 26, 1990, on the South lawn of 
the White House, when President Bush signed into law the 
Americans with Disabilities Act. None of the 3,000 or so 
persons with and without disabilities, present for the event, 
will ever forget the excitement of that day as this bill of 
rights for millions of Americans became the law of the land.
    Make no mistake about it, as you've pointed out, the 
passage of the ADA 17 years ago, was the result of strong 
bipartisan work. I was personally involved in these 
negotiations in my role as Attorney General. The Bush 
administration and the Congress, both the Senate and the House, 
Republicans and Democrats, as well as the business community 
and the disability community worked together to get this 
important legislation passed.
    It took the personal involvement of many individuals too 
numerous to mention: C. Boyden Gray, Sam Skinner, President 
Bush, Senators Dole, Hatch, yourself, Senator Kennedy, and an 
equal number of committed members of the House. We all worked 
together with one goal in mind--to break down the barriers to 
people with disabilities, and to open the social and economic 
door to the mainstream of American life. The passage of the 
Americans with Disabilities Act was truly a cooperative effort.
    Today, I remain proud of the tremendous strides we have 
made in the empowerment of people with disabilities since the 
enactment of this important legislation.
    Many more people with disabilities have greater 
opportunities than ever before. We see greater numbers of 
children and adults with disabilities around us, partaking of 
the diverse benefits our society has to offer. We can feel the 
impact of improved accessibility. Moreover, the Americans with 
Disabilities Act has become a beacon and a model for disability 
policy reform throughout the world.
    Yet, despite the substantial progress, ADA has not been as 
effective as intended in protecting some individuals with 
disabilities from employment discrimination. The problem is a 
direct result of judicial interpretation or misinterpretation 
of the definition of who qualifies as an individual with 
disability under the statute.
    Under the three 1999 U.S. Supreme Court decisions in 
Sutton, Murphy and Kirkingburg cases, as well as a series of a 
lower court decision, the definition of who qualifies as an 
individual with disability has become unduly restrictive and 
often difficult to prove. So that millions of Americans we all 
intended to protect from discrimination, including people with 
intellectual and developmental disabilities, bi-polar disorder, 
multiple sclerosis, epilepsy and diabetes are no longer covered 
by the law's protection. I don't think there are any among us 
who think that these conditions do not qualify as disabilities. 
Yet, this is what the courts have, in effect, concluded, over 
and over again since 1999, and what now needs to be rectified 
by the Congress.
    The problem we face now is actually worst than that. In 
many instances, these individuals are caught in a bizarre and 
unintended Catch-22. Let me give you an example, citing from 
the brief of the Department of Justice in Murphy v. United 
Parcel Service, filed in the U.S. Supreme Court in 1999.
    They used this example.

          ``An employee that develops a serious and chronic 
        medical condition that can be effectively controlled 
        only by taking oral medication several times a day. In 
        many employment situations, giving an employee a brief 
        break so the employee could take the medication would 
        be a reasonable accommodation.''

    Yet, under the Court of Appeals theory in that case, which 
is the U.S. Supreme Court's theory, the employer could refuse 
that accommodation, because the employee, by virtue of his 
medication, ceases to be disabled, and is therefore not 
entitled to the protections of the ADA.
    Clearly, this is not what was intended by those of us who 
worked together cooperatively in the years leading up to the 
ADA passage in 1990. In fact, it's quite the opposite. As 
Senator Harkin has noted, the definition of disability under 
the ADA is taken from the definition of handicapped individual, 
contained in the Rehabilitation Act of 1973.
    When we were looking for an appropriate definition, I 
remember thinking that we should go with something familiar, 
and that had worked well, and that was the reason we turned to 
the definition of disability under the Rehabilitation Act.
    Prior to the enactment of the ADA, courts had interpreted 
the term ``handicapped individual'' under the Rehabilitation 
Act broadly, to include people with a wide variety of physical 
and mental impairments, which were recognized as disabilities, 
even where a mitigating measure--like the medication mentioned, 
or a hearing aid--might lessen the impact on the individual. In 
most cases, defendants and the courts, accepted that a 
plaintiff was a member of the protected class as a handicapped 
individual, and moved onto the merits of the case, examining, 
for example, whether the plaintiff was qualified to perform the 
job, or whether a reasonable accommodation might cause an undue 
burden on the employer.
    In addition to favorable treatment by the lower courts, the 
U.S. Supreme Court had also endorsed a broad interpretation to 
the definition of handicapped individual, before Congress 
decided to adopt this model for the definition of disability in 
the ADA.
    The repetition of this definition in the ADA, thus, was 
clearly meant to incorporate the Rehabilitation Act's 
administrative and judicial interpretations that had worked 
well to provide anti-discrimination protection to people with 
disabilities.
    Just to be sure, the legislative language, as noted, went 
even further, and included a specific statutory provision 
requiring courts to interpret the ADA to provide as much 
protection as the Rehabilitation Act, and its implementing 
regulations.
    Yet, despite consensus at the time between the 
Administration, Congress, Republicans, Democrats, the 
disability community and the business community, about the 
desired result, our best efforts did not achieve the intended 
result, nor the result that all of us had expected.
    Supreme Court decisions in Sutton, Murphy, Kirkingburg, as 
well as in Toyota v. Williams, have effectively eliminated the 
ADA protection for many people with disabilities, particularly 
in the workplace.
    Those who have been excluded from the protections of the 
ADA are individuals whom we explicitly intended to protect 
under the statute. About this there can be no question that 
specific language in the House and Senate committee reports 
bears that out.
    The goal then, as now, was to ensure that all Americans 
with disabilities have the opportunity to participate in all 
aspects of American society. For many people with disabilities, 
a job or a career represents the optimum link to the American 
dream. The idea that an employee with a disability is entitled 
to a reasonable accommodation at work is not a controversial 
concept. Most people with disabilities just want an opportunity 
to work, and to earn a paycheck, just like the rest of us.
    To be totally realistic, we must recognize that the ADA 
Restoration Act is no silver bullet when it comes to increasing 
job opportunities for people with disabilities. Many more 
individuals must be empowered through education and job 
training programs so that they can use their gifts and talents 
in the workplace. And more employers will have to take a 
proactive approach to hiring people with disabilities.
    Our goal must be to see that people are protected in the 
workplace against discrimination, because of impairments, 
irrespective of whether or not they are able to use mitigating 
measures to become maximally productive.
    Nonetheless, I believe that it is time for Congress to 
restore the balance and original intent, and the protections 
for individuals with disabilities under this important civil 
rights statute that all of us worked so hard to put into place 
17 years ago by taking action and passing the ADA Restoration 
Act.
    Thank you very much, Senator.
    [The prepared statement of Mr. Thornburgh follows:]
                 Prepared Statement of Dick Thornburgh
    Thank you for that kind introduction. My name is Dick Thornburgh 
and I am currently counsel to the national law firm of Kirkpatrick & 
Lockhart Preston Gates Ellis LLP, resident in their Washington, DC. 
office. I am the former Attorney General of the United States and the 
former Governor of Pennsylvania. It is an honor to be here before you 
today to testify about the need for immediate consideration and passage 
of the ADA Restoration Act, S. 1881.
    When I served as Attorney General of the United States under 
President George H.W. Bush, one of my proudest achievements was working 
on passage of the ADA. As parents of a child with a disability, both my 
wife and I fully understand the importance of the ADA to the 54 million 
Americans with disabilities and their families. The ADA--which sets as 
its goals equality of opportunity, full participation, independent 
living, and economic self-sufficiency for people with disabilities--is 
one of the most significant pieces of civil rights legislation in the 
past 25 years, and has changed the lives of millions of Americans with 
disabilities.
    On occasions like this, I always have in my mind that glorious, 
sun-filled day, July 26, 1990, on the South Lawn of the White House, 
when President George H.W. Bush signed into law the Americans with 
Disabilities Act. None of the 3,000 or so persons, with and without 
disabilities, present for the event will ever will forget the 
excitement of that day, as this bill of rights for millions of 
Americans became the law of the land.
    Make no mistake about it--the passage of the ADA 17 years ago was 
the result of strong, bipartisan work. I was personally involved in 
these negotiations in my role as Attorney General of the United State 
during the Bush Administration. Together, the Bush Administration and 
Congress--both the Senate and the House, Republicans and Democrats--as 
well as the business community and the disability community--worked 
together to get this important civil rights legislation passed. It took 
the personal investment of many individuals too numerous to mention--
Boyden Gray, Samuel Skinner, President George H.W. Bush--as well as 
Senators Dole, Hatch, Harkin, and Kennedy and an equal number of 
committed members of the House. All of us worked together with one goal 
in mind--to break down the barriers to people with disabilities, and to 
open the social and economic door to the mainstream of American life. 
The passage of the Americans with Disabilities Act of 1990 was truly a 
cooperative effort.
    Today I remain proud of the tremendous strides we have made in the 
empowerment of people with disabilities since the enactment of this 
important civil rights legislation. Many more people with disabilities 
have greater opportunities than ever before. We see greater numbers of 
children and adults with disabilities around us, partaking of the 
diverse benefits our society has to offer. We can feel the impact of 
improved accessibility. Moreover, the Americans with Disabilities Act 
has become a beacon and a model for disability policy reform throughout 
the world.
    Yet despite this substantial progress, the ADA has not been as 
effective as intended in protecting some individuals with disabilities 
from employment discrimination. This problem is the direct result of 
judicial interpretation--or misinterpretation--of the definition of who 
qualifies as an ``individual with a disability'' under the statute. 
Under the three 1999 Supreme Court decisions in Sutton, Murphy and 
Kirkingburg, as well as a series of lower 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 all intended to protect from discrimination--including people with 
intellectual and developmental disabilities, bipolar disorder, multiple 
sclerosis, epilepsy, and diabetes--are no longer covered by the law's 
protections. I don't think there are any among us who think that these 
conditions do not qualify as disabilities. Yet this is what the courts 
have concluded over and over again since 1999, and what now needs to be 
fixed by Congress.
    And the problem that we now face is actually worse than that. In 
many instances these individuals are caught in a bizarre and unintended 
Catch-22. If they are taking their medication or using other measures 
to mitigate the impact of their disability, they risk that a court will 
no longer consider them to have an impairment that ``substantially 
impacts one or more major life activities'' and will conclude that they 
are not ``disabled'' and thus not entitled to the reasonable 
accommodation and antidiscrimination protections of the statute--even 
if their symptoms would return as soon as their medication stopped. It 
is absurd to imagine that whether an individual is entitled to a 
reasonable accommodation--such as modifying a work schedule or having 
access to a communications device--should be judged in inverse 
proportion to their efforts to manage the symptoms of their disability.
    Clearly this is not what was intended by those who worked together 
cooperatively in the years leading up to ADA passage in 1990. In fact, 
it is quite the opposite.
    The definition of disability under the ADA is taken from the 
definition of ``handicapped individual'' contained in the 
Rehabilitation Act of 1973. When we were looking for an appropriate 
definition, I remember thinking that we should go with something 
familiar and that had worked well; and thus we turned to the definition 
of disability under the Rehabilitation Act. Prior to enactment of the 
ADA, courts had interpreted the term ``handicapped individual'' under 
the Rehabilitation Act broadly to include people with a wide variety of 
physical and mental impairments, including (for example) epilepsy, 
diabetes, multiple sclerosis, hearing and vision impairments, cerebral 
palsy, heart disease, and intellectual and developmental disabilities. 
These impairments were recognized as disabilities even where a 
mitigating measure--like medication or a hearing aid--might lessen 
their impact on the individual. In most cases, defendants and the 
courts accepted that a plaintiff was a member of the protected class 
(``handicapped individual'') and moved on to the merits of the case, 
examining, for example, whether the plaintiff was qualified to perform 
the job, or whether a reasonable accommodation might cause an undue 
burden on the employer.
    In addition to favorable treatment by the lower courts, the Supreme 
Court had also endorsed a ``broad'' interpretation of the definition of 
``handicapped individual'' before Congress decided to adopt this model 
for the definition of disability in the ADA, as in the case of School 
Board of Nassau County v. Arline.
    The repetition of this definition in the ADA thus was meant to 
incorporate the Rehabilitation Act's administrative and judicial 
interpretations that had worked well to provide antidiscrimination 
protection to people with disabilities. Just to be sure, the 
legislative language went even further and included a specific 
statutory provision requiring courts to interpret the ADA to provide at 
least as much protection as the Rehabilitation Act and its implementing 
regulations:

          Except as otherwise provided in this chapter, nothing in this 
        chapter shall be construed to apply a lesser standard than the 
        standards applied under Title V of the Rehabilitation Act of 
        1973 (29 U.S.C. Sec. 790 et seq.) or the regulations issued by 
        the Federal agencies pursuant to such title. 42 U.S.C. 
        Sec. 12201(a).

    Yet, despite consensus at the time between the Administration, 
Congress, Republicans, Democrats, the disability community, and the 
business community about the desired result, our best efforts did not 
achieve the intended result, nor the result that all of us had 
expected. The Supreme Court's decisions in Sutton, Murphy, Kirkingburg, 
as well as in Toyota v. Williams, have effectively eliminated the ADA 
protections for many people with disabilities, particularly in the 
workplace. Those who have been excluded from the protections of the ADA 
are individuals whom we explicitly intended to protect under the 
statute. About this there can be no question--the specific language in 
the House and Senate Committee Reports bears that out.
    The goal then, as now, was to ensure that all Americans with 
disabilities have the opportunity to participate in all aspects of 
American society. For many people with disabilities, a job or a career 
represents the optimum link to the American dream. The idea that an 
employee with a disability is entitled to a reasonable accommodation at 
work is not a controversial concept. Most people with disabilities just 
want an opportunity to work and to earn a paycheck, just like everyone 
else.
    I believe that it is time for Congress to restore the original 
intent and protections for individuals with disabilities under this 
important civil rights statute that all of us worked so hard to put 
into place 17 years ago by taking action and passing S. 1881, the ADA 
Restoration Act.

    Senator Harkin. Thank you, General, and thank you again for 
all of your work through all these years. Thanks for that 
powerful statement, I've made some notes here on it.
    Next we turn to Steven Orr, a licensed pharmacist from 
Rapid City, SD. As I said, he experienced discrimination based 
upon his diabetes, was found not to be protected under the ADA, 
and is here today to share a story with the committee.
    Steven has two sons and a daughter, likes to ride his 
motorcycle--I question that, but--travel and spend time with 
his family. I used to ride a motorcycle, but I was a lot 
younger than you are, I'll tell you that.
    [Laughter.]
    Steven has also volunteered for the American Diabetes 
Association.
    Mr. Orr, welcome, please proceed.

      STATEMENT OF STEVEN ORR, PHARMACIST, RAPID CITY, SD

    Mr. Orr. Thank you. Good afternoon, my name is Steven Orr, 
I'm a licensed pharmacist from Rapid City, SD.
    Thank you for the opportunity to speak, I would like to 
provide some highlights from my written testimony.
    I have lived with Type I diabetes since 1986, and take 
excellent care of my health. Today, I use an insulin pump. I 
must administer insulin multiple times each day.
    I must administer this insulin to treat my condition, as 
recommended by my doctors in maintaining tight glucose control. 
This is incredibly important, it helps prevent the serious 
long- and short-term consequences of diabetes, including heart 
disease, amputation, blindness and death.
    In 1997, I was invited to apply for a position as manager 
of a Wal-Mart pharmacy in Chadron, NE. It was a great 
opportunity, I had lived there previously, and my children and 
family are still there.
    I never imagined that my diabetes could lead to me being 
fired from a job, however, that is exactly what happened. When 
I was hired by Wal-Mart, my diabetes management regimen 
included three insulin injections daily, and meal breaks to 
prevent me from suffering from dangerously low blood glucoses, 
or high hypoglycemia.
    Severe hypoglycemia can cause seizure, unconsciousness or 
even death.
    Prior to being hired, I disclosed to my District Manager 
that I had diabetes and that I would need a regularly-
scheduled, uninterrupted half hour lunch break to check my 
blood glucose and to eat.
    Because I was going to be the only pharmacist, my manager 
agreed to close the pharmacy while I took my lunch break.
    The pharmacy opened in January 1998. The first 6 weeks went 
very well. Then the regional management changed, and I was told 
that I could no longer close the pharmacy for my lunch. I tried 
to accommodate the store's request, but I was unable to do so 
and safely manage my diabetes. My glucose levels plummeted.
    For example, one day I had a blood glucose reading of 41 mg 
per deciliter. A healthy level ranges between 80 and 120. I was 
unable to eat until after 2 p.m.. As soon as I went to the 
snack bar, I was paged back to the pharmacy.
    This was not a one-time occurrence, and for the next 3 
months, I experienced repeated dangerous low levels on the job, 
including a blood glucose level of 32.
    I told my supervisor how unhealthy it was for me to 
continue skipping lunch, but he refused to allow me a routine, 
daily half hour lunch break.
    Finally, to protect my health, I returned to taking 
lunches. On May 12 I was fired. Let it be clear, when I was 
fired, it was told flat out, it was because I had diabetes.
    After this discrimination, I sued Wal-Mart for violating my 
rights under the ADA, however, the U.S. District Court ruled 
against me, and the U.S. Court of Appeals rejected my appeal, 
because of the U.S. Supreme Court's decision narrowing the law, 
I was not considered disabled under the act for the sole reason 
that my diabetes is under such good control.
    Amazingly, the Court ignored the fact that when I was 
working at Wal-Mart, I was prevented from properly managing my 
diabetes condition by my employer, my case was dismissed, and I 
never had a chance to prove that, with a very small, reasonable 
accommodation, I could both perform my job and protect my 
health.
    Ironically, Wal-Mart now allows the pharmacy to close for 
lunch.
    I also know my request was reasonable, because every other 
employer I have ever had--including my present employment--has 
been able to accommodate my need for a lunch break, and I've 
been able to fully perform all of my duties and successfully 
manage my diabetes.
    It's not right that the same employer that fired me because 
of my diabetes, could then claim that I did not meet the 
definition of disability under the ADA.
    I'm before you today to say that even with proper diabetes 
management, this disease affects me every day, every hour of my 
life. I must constantly try my hardest to maintain a balance 
between dangerously high and dangerously low blood glucose 
levels. The good news is that I have largely been successful in 
keeping myself safe and healthy. Yet it was because I worked so 
hard to manage my diabetes to make myself a productive employee 
and citizen, that the court found that I didn't merit the 
protection from discrimination.
    Again, thank you for the opportunity to speak today. Thank 
you.
    [The prepared statement of Mr. Orr follows:]
              Prepared Statement of Stephen C. Orr, R.Ph.
    Mr. Chairman and members of the committee, good morning. My name is 
Stephen Orr and I am a licensed pharmacist from Rapid City, SD. Thank 
you for the opportunity to testify before the committee today. It is a 
pleasure to be here speaking to you, Chairman Harkin, Senator Enzi and 
the other distinguished members of this committee. I appreciate you 
holding this hearing on restoring the Americans with Disabilities Act 
(ADA) and for providing me with the opportunity to tell my story of 
discrimination.
    I have lived with type 1 diabetes since 1986 and take excellent 
care of my health. Having type 1 diabetes means that I must administer 
insulin multiple times each day in order to survive. As a pharmacist, I 
provide others with information about how to manage their diabetes 
throughout the day--and I take that advice very seriously: treating my 
condition as recommended by my doctors and maintaining tight blood 
glucose control.
    I'd like to explain a little about diabetes so that you know what I 
mean by ``tight blood glucose control.'' Diabetes is a condition in 
which the pancreas either does not create any insulin, which is type 1 
diabetes, or the body doesn't create enough insulin and/or cells are 
resistant to insulin, which is type 2 diabetes. Insulin is a hormone 
that allows glucose or sugar to move from the blood stream into the 
cells where it is used for energy. Thus, untreated diabetes results in 
too much glucose in the blood stream. High blood glucose levels, known 
as hyperglycemia, can be very dangerous in the short-term and, in the 
long-term, it is high blood glucose levels that lead to the many long-
term complications of diabetes including blindness, heart disease, 
kidney disease, and amputation. Thus, I administer insulin to myself in 
order to lower my blood glucose level. However, while a normal pancreas 
is able to secrete just the right amount of insulin, it is much harder 
for a person with diabetes to maintain blood glucose level in a safe 
range. If I end up with too little insulin in my system I will have 
hyperglycemia. But, if I end up with too much insulin in my system I 
will experience a condition call hypoglycemia. Hypoglycemia occurs when 
blood glucose falls below 70 mg/dL. Low blood glucose levels can be 
caused by skipping or delaying a meal, more exercise or physical 
activity than usual, too much insulin, or not following your schedule 
for taking your insulin or diabetes pills. Mild or moderate 
hypoglycemia is pretty common for children and adults who take insulin 
but hypoglycemia can turn severe--leading to seizure or 
unconsciousness--in very little time. Severe hypoglycemia is a life-
threatening condition.
    In short, hypoglycemia and hyperglycemia are conditions that happen 
when insulin and blood glucose are out of balance. In order to manage 
my diabetes I need to carefully monitor my blood glucose level by self-
administering a blood test numerous times a day and adjusting the 
amount of insulin I administer to take into account the food I eat, the 
exercise I get, and other factors such as illness. The reason I strive 
for tight blood glucose control is that research has established that 
is the way to avoid the devastating long-term complications of 
diabetes.
    In 1997, a Wal-Mart district manager invited me to apply for a 
position as manager of the company's pharmacy in Chadron, NE. It 
sounded like a great opportunity. At the time, I was working as a 
pharmacist in Rapid City, SD, but had lived in Chadron previously and 
looked forward to moving the 110 miles back to the town where my 
children resided and countless other family and friends still lived. 
The job had a great salary and, as I was 47 years old, I expected to 
retire from there.
    Having lived with diabetes for so long, I never imagined that my 
diabetes could lead to my getting fired. However, that is exactly what 
happened. In essence I lost my job as a result of trying to protect my 
health and safety even though none of that interfered with me being a 
good pharmacist.
    At the time that I was hired by Wal-Mart, my diabetes management 
regimen included, among other things, three insulin injections daily, 
as well as half-hour lunch breaks to prevent me from suffering from 
hypoglycemia. Prior to being hired, I disclosed to my district manager 
that I had diabetes and that I would need to have a regularly 
scheduled, uninterrupted, lunch break to check my blood glucose level 
and eat. I only accepted the position after my new employer agreed to 
the terms by which I could take the care necessary to manage my 
condition. Based upon this agreement, I accepted the position and moved 
to Chadron.
    On January 3, 1998, I began training in the Rapid City Wal-Mart 
Pharmacy. By the end of the month, we held the Grand Opening of the 
Chadron Wal-Mart Supercenter, and the in-store pharmacy formally 
opened. As the only pharmacist at this location, taking a lunch meant 
closing the pharmacy during that time period--one of the initially 
agreed upon terms for my employment. However, a mere 6 weeks after I 
started work, the regional management changed. I was told by a new 
district manager that I could not close for lunch breaks. I was 
instructed that I should eat behind the pharmacy if and when things 
slowed down. I tried to comply with the request, but was unable to do 
so and safely manage my diabetes. My blood glucose readings plummeted. 
For example, on March 12, 1998, I had a blood glucose reading of 41 mg/
dL. On this particular day, I was unable to eat until after 2 p.m. When 
I walked over to the snack bar to pick up lunch I was paged back to the 
pharmacy. Unfortunately, this was not a one time occurrence and for the 
next 3 months I experienced repeated dangerously low hypoglycemia on 
the job, including a blood glucose level of 32 mg/dL on May 6, 1998.
    I spoke to my supervisor in order to explain how unhealthy it would 
be for me to continue the practice of skipping lunch, but he refused to 
consider accommodating my medical condition. In order to protect my 
safety, I was forced to return to my practice of taking half-hour 
lunches and on May 12, 1998, I was discharged. Let me be clear: when I 
was fired, I was told flat out that it was because I had diabetes.
    After the discrimination I experienced, I brought a case against 
Wal-Mart Stores, Inc. for violating my rights under the Americans with 
Disabilities Act. However, the U.S. District Court granted summary 
judgment against me and the U.S. Court of Appeals rejected my appeal. 
The appeals court said that because of Supreme Court decisions 
narrowing the Federal law, I was not considered ``disabled'' under the 
act--for the sole reason that my diabetes is under such good control. 
The appeals court agreed with my testimony that when my blood glucose 
level is not within a safe range I suffer from a variety of immediate 
complications including vision impairment, low energy, lack of 
concentration and mental awareness, lack of physical strength and 
coordination, slurred speech, difficulties typing and reading, and 
slowed performance. Yet, the court said that I could not rely on 
evidence of how I was when my blood glucose level was not within a safe 
range. Rather, the court said:

        [N]either the district court nor we can consider what would or 
        could occur if Orr failed to treat his diabetes or how his 
        diabetes might develop in the future. Rather, [the Supreme 
        Court decision in] Sutton [v. United Airlines] requires that we 
        examine Orr's present condition with reference to the 
        mitigating measure taken, i.e., insulin injections and diet, 
        and the actual consequences which followed.\1\
---------------------------------------------------------------------------
    \1\ Orr v. Wal-Mart Stores, 297 F.3d 720, 724 (8th Cir. 2002).

    Amazingly, the court ignored the fact that when I was working at 
Wal-Mart, I was prevented from properly managing my condition by my 
employer. That is, Wal-Mart took away the means I had to manage my 
disease, I became ill, and then my case was thrown out of court because 
the judges insisted upon viewing me as I would be if I had been allowed 
to properly manage my disease.
    My case was dismissed and I never had a chance to try to prove 
that, with a very small reasonable accommodation, I would have been 
able to both fully perform my job and protect my health and safety. 
Ironically, as a corporate policy, Wal-Mart is now allowing the 
pharmacy in Chadron to be closed for a 30-minute period, although there 
is still only one pharmacist on duty.
    I find it tremendously unfair that the same employer that fired me 
because of my diabetes could then successfully claim that I did not 
meet the definition of disability under the ADA. I ask that you amend 
the law so that the focus of cases like mine is on whether the 
individual can do the job, rather than lawsuits about the private 
details of an individual's medical condition. I stand before you to say 
that, even with proper diabetes management, this disease affects me 
every day, every hour of my life. I must constantly try my hardest to 
maintain a balance between dangerously high and dangerously low blood 
glucose levels. Diabetes affects everything I do from eating to 
physical activity. The good news is that I have largely been successful 
in keeping myself safe and healthy. Yet, it was because I work so hard 
to manage my diabetes to make myself a productive employee and citizen 
that the court found that I didn't merit protection from 
discrimination.
    I wish my case was unique but it is not. Too many people have had 
their ADA claims dismissed because they were found by the courts not to 
be sufficiently disabled under the courts' misguided interpretation of 
the definition of disability under the ADA. Congress must restore the 
ADA to what it was intended to be--a comprehensive mandate to protect 
all Americans from discrimination based on disability.
    Again, thank you for the opportunity to speak before you today.

    Senator Harkin. I'm sorry, thank you Mr. Orr for, again, 
bringing a real life case here, I'll have more to ask you about 
that when we get into questions, but I appreciate your coming 
this great distance.
    Camille Olson, partner in the law firm of Seyfarth & Shaw, 
LLP, a national firm with the largest Labor & Employment 
practices in the United States.
    Ms. Olson quoted a book entitled, Labor and Employment Law: 
The Employer's Compliance Guide, that was in 2006. Most 
recently in 2006, Ms. Olson participated on behalf of employer 
groups and ADA shareholder meetings, focusing on analyzing the 
impact of various aspects of the ADA since its enactment.
    Ms. Olson, welcome to the committee, and please proceed.

STATEMENT OF CAMILLE OLSON, ATTORNEY, SEYFARTH & SHAW, CHICAGO, 
                               IL

    Ms. Olson. Thank you, Senator Harkin, good afternoon.
    Senator Harkin, and other members of the committee, my name 
is Camille Olson. In addition to the background you just 
described, I also regularly teach employment discrimination at 
Loyola University School of Law in Chicago, IL, which is my 
hometown.
    My legal practice is focused on equal employment 
opportunities to clients from employers. Working with employers 
every day on ADA compliance demonstrates some of the successes 
that have been achieved as a result of the passage of the ADA.
    Employers have completely revised their applications, their 
pre-hire processes, implemented job descriptions, they've also 
modified jobs as well as workplace infrastructures, and 
developed policy statements, as well as ruled out training for 
all of its employees to ensure individuals in the workplace 
understand the rights of individuals with disabilities.
    Yet, I would have to say that one of the most important 
changes brought about by the Americans with Disabilities Act is 
the impact on the way employers think. Today, employers do not 
focus on how the job is done, instead employers focus on what 
the job requires, a change in the workplace that was entirely 
driven by the Americans with Disabilities Act.
    When employers do not comply with the act, there's been a 
record--which I have cited in my written testimony as presented 
to the committee, of both the enforcement of the rights of the 
individuals with disabilities before the Equal Employment 
Opportunity Commission, as well as through court proceedings.
    I strongly support equal employment opportunity in 
employment. However, S. 1881 goes far beyond clarifying the 
original intent and language of the ADA. Instead, it would 
expand the ADA in three ways; first, by removing the current 
ADA requirement that a disability, ``substantially limits a 
major life activity,''; second, by prohibiting consideration of 
mitigating measures; and, third, by shifting the burden of 
proof from employees to employers as to whether an individual 
is qualified to perform the essential functions of a job. I 
will address each of these three concerns.
    First, in attempting to clarify the ADA, S. 1881 defines 
all individuals with any mental or physical impairment, as 
disabled. Regardless of whether any of those impairments are 
functionally limiting to the individual. S. 1881 limits all 
impairments, and labels them all as per se disabilities, 
repeating the wrong that the ADA was originally designed to 
eliminate.
    An impairment must also substantially limit the person in 
one or more major life activities to be considered a 
disability. That's true under the Rehabilitation Act, it's true 
under the EEOC regs, and it's been true throughout all of the 
court proceedings with respect to all disability rights with 
legislation.
    Courts have consistently held that where an impairment such 
as diabetes, such as mental retardation, such as epilepsy, does 
substantially limit major life activities, that a plaintiff is 
covered under the ADA.
    The same thing is true under the Rehabilitation Act. The 
court, under each of those acts, have also held that 
individuals with those exact same impairments did not meet the 
definition of disability, under the ADA and under the 
Rehabilitation Act, because showing that you have a mental or 
physical impairment is only one part of the definition of a 
disability, under any of those disability rights statutes.
    What would be the practical effect of defining an ADA 
disability as an impairment? It is telling that no one has 
provided this committee with a list of conditions that would 
not be covered under S. 1881. I ask you to consider, what 
impairment would be excluded? Employers will find themselves 
addressing accommodation requests from individuals with the 
flu, with poison ivy, ankle sprains, stomach aches, the 
occasional headache, a toothache, and a myriad of other minor 
medical conditions that go far beyond any reasonable concept of 
disability. There is no limitation on the definition of 
disability under S. 1881, and as a result, it should not be 
adopted as the new definition of disability under the ADA.
    Second, prohibiting employers from considering mitigating 
measures, and both their positive and negative effect in 
determining whether someone that has a disability, will label 
the vast majority of us sitting in this room today, and the 
vast majority of us in America, as disabled under the ADA.
    The clearest example that can be given pertains to 
eyesight. All of us who wear glasses or contact lenses would be 
covered. The plain language of the ADA, as well as its 
functional approach, are inconsistent with this interpretation.
    Third, S. 1881 shifting the burden of proof to the 
employers demonstrates that an individual alleging 
discrimination, ``is not a qualified individual with a 
disability,'' while the facts lie with the plaintiff. And this 
shift is inconsistent with the balance of the rights and 
obligations between disabled employees and their employers.
    The ADA imposes certain affirmative obligations on lawyers. 
Those obligations result in preferences that only people with 
disabilities are entitled to receive. It would be unfair and 
impracticable to circumscribe employers from inquiries 
regarding medical conditions, as the law currently does, and at 
the same time to impose on employers the burden of proving that 
a plaintiff is not a qualified individual under the ADA, as S. 
1881 would do.
    S. 1881's reversal of Congress' allocation of the burden of 
proof also contravenes the fundamental tenants of law, that 
disfavors proof of a negative proposition.
    In conclusion, Congress, the courts and the EEOC have all 
recognized the imperatives of an individualized inquiry into 
the impact of an impairment on each individual in determining 
coverage under the ADA, as well as other disability statutes.
    In contrast, S. 1881 would label all people with a 
particular condition as disabled, irrespective of whether the 
condition even impairs--let alone substantially limits--any 
major life activities.
    For these reasons, and other reasons that are contained in 
my submitted written testimony, I express serious concern with 
S. 1881's definition of disability and it's shift of the burden 
of proof to employers.
    Mr. Chairman, and members of the committee, I thank you for 
this opportunity to share some of those concerns with you 
today.
    [The prepared statement of Ms. Olson follows:]
                 Prepared Statement of Camille A. Olson
    Good afternoon, Mr. Chairman and members of the committee. My name 
is Camille A. Olson, and I am pleased to present this testimony 
addressing S. 1881, the Americans with Disabilities Act Restoration Act 
of 2007 (``S. 1881''). I am a Partner with the law firm of Seyfarth 
Shaw LLP. Seyfarth Shaw is a national firm with nine offices and has 
one of the largest labor and employment practices in the United States. 
Nationwide, over 350 Seyfarth Shaw attorneys provide advice, counsel, 
and litigation defense representation in connection with discrimination 
and other labor and employment matters affecting employees in their 
workplaces.\1\
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    \1\ I would like to acknowledge Seyfarth Shaw attorneys William P. 
Schurgin, Condon A. McGlothlen, Anne E. Duprey, Annette Tyman, Kyle R. 
Hartman, Laura E. Reasons, Jonathan J.C. Grey, and law clerk Katherine 
Mendez for their invaluable assistance in the preparation of this 
testimony.
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    I am chairperson of Seyfarth Shaw's Labor and Employment 
Department's Complex Discrimination Litigation Practice Group. I have 
practiced in the areas of employment discrimination counseling and 
litigation defense for over 20 years at Seyfarth Shaw's home office in 
Chicago, IL. Our firm has been actively involved in the legislative and 
regulatory process surrounding the Americans with Disabilities Act \2\ 
since its passage in 1990. Members of our firm, along with our training 
subsidiary, Seyfarth Shaw at Work, have also written treatises on the 
ADA; advised thousands of employers on complying with the ADA; trained 
tens of thousands of managers and employees on the requirements of the 
ADA; and actively conducted employer audits and developed workplace 
best practices under the ADA.
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    \2\ Pub. L. No. 101-336, 104 Stat. 327 (1990) (codified at 42 
U.S.C. Sec. Sec. 12101-12213 (1994); 47 U.S.C. Sec. 225711 (2001)).
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    My personal legal practice is focused on equal employment 
opportunity compliance--counseling employers as to their legal 
obligations under the ADA, developing best practices in the workplace, 
training managers and supervisors on the legal obligations they have 
under the ADA, and litigating ADA and other employment discrimination 
cases. I also regularly teach employment discrimination at Loyola 
University School of Law in Chicago, IL. I am a frequent lecturer and 
have published numerous articles and chapters on various employment and 
discrimination issues. For example, in 2006 I co-edited a book entitled 
Labor and Employment Law: The Employer's Compliance Guide for Thompson 
Publishing Group. I am also a member of the U.S. Chamber of Commerce's 
policy advisory committee on equal employment opportunity matters, and 
I am a member of the Board of Directors of a number of business and 
charitable institutions. Most recently, in 2006 I participated, on 
behalf of employer groups, in ADA shareholder meetings focused on 
analyzing the impact of various aspects of the ADA since the ADA's 
enactment.
    Today, I have been invited to discuss with you the meaning and 
impact of the Americans with Disabilities Act Restoration Act of 2007 
(S. 1881). There can be no question that sponsors of S. 1881 have 
proposed changes to the ADA with the intent of benefiting individuals 
with disabilities. S. 1881's proposed changes, however would 
unquestionably expand ADA coverage to encompass almost any physical or 
mental impairment--no matter how minor or short-lived. In essence, S. 
1881 changes the focus of the ADA from whether an individual has a 
functional ``disability'' to whether the individual has an 
``impairment,'' without regard to whether the impairment or ailment in 
any way limits the individual's daily life. Indeed, under the proposed 
definition, almost anything less than perfect health would be a 
disability under the ADA.
    While I strongly support equal opportunities in employment and, in 
particular, the inclusion of individuals with disabilities in the 
workplace, I respectfully submit that, if enacted, S. 1881, as 
currently drafted, would go far beyond clarifying the original intent 
and language of the ADA. While I recognize that many current members of 
this committee were among the original sponsors of the ADA, and I 
cannot deny the frustration which some of you have expressed over 
certain interpretations of the statute, I urge you to look carefully at 
the language of S. 1881, because I do not believe that it is the best 
course of action.
    Instead of clarifying the ADA, S. 1881 would expand the ADA by (1) 
removing the current ADA requirement that a disability ``substantially 
limit a major life activity;'' (2) prohibiting consideration of 
mitigating measures that an individual may be using, such as medication 
or devices, when determining whether the individual has a disability; 
and (3) shifting the burden of proof from employees to employers as to 
whether an individual is ``qualified'' to perform the essential 
functions of a job.
    When we were initially involved in the legislative and regulatory 
process surrounding the ADA in the late 1980s and early 1990s, no 
Federal statute provided comprehensive protection to individuals with 
disabilities. Congress's focus then was on Americans with disabilities 
who had been shut out of the workplace--persons who were substantially 
limited in major life activities such as their ability to hear, see, 
walk, speak, eat, perform manual tasks, and/or care for one's self. 
When we spoke of individuals with disabilities at that time, many of us 
focused on the millions of individuals who were deaf or hard of 
hearing, blind, or who were significantly limited in their mobility.
    Ironically, from 1993 to the present, the average number of ADA 
charges filed with the EEOC by individuals who are deaf or hearing 
impaired consistently represent only 3 percent of all ADA claims 
filed.\3\ Instead, the most common ADA claim filed relates to back 
conditions, representing close to 13 percent of all ADA claims, which 
are often the result of workplace injuries that are otherwise covered 
by workers' compensation laws.\4\ Indeed, individuals with conditions 
such as cancer, diabetes, and epilepsy combined have historically 
accounted for less than 10 percent of all ADA charges filed.\5\ 
Moreover, these historical percentages have remained unchanged 
following the Supreme Court decisions that have given rise to today's 
proposed legislation.\6\
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    \3\ EEOC.gov, ADA Charge Data by Impairments/Bases--Receipts http:/
/www.eeoc.gov/stats/ada-receipts.html (last visited Nov. 13, 2007).
    \4\ Id. (see, especially, Intake Averages for Non-Paralytic 
Orthopedic Impairment and Orthopedic and Structural Impairments of the 
Back).
    \5\ Id.
    \6\ Id.
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    Our experience in working with employers every day on ADA 
compliance in their workplaces demonstrates some of the successes that 
have been achieved as a result of the passage of the ADA. Employers 
have completely revised their application and pre-hire processes to 
ensure that individuals with disabilities fully participate in the 
opportunities available for open positions. Employers have made 
significant modifications to jobs and aspects of workplace 
infrastructure to ensure that all employees have access to the same 
terms and conditions and benefits of employment. Employers have 
developed policy statements and implemented training programs in their 
workplaces to sensitize fellow employees and their managers to the 
rights of individuals with disabilities. Employers have regularly 
engaged in the interactive process with employees and medical 
professionals, as well as the Job Accommodation Network, and other 
accommodation resources, to ensure that they are providing appropriate 
reasonable accommodations to individuals with disabilities.
    Yet, one of the most important changes brought about by the ADA is 
its impact on the way employers think. Today, employers focus on not 
``how'' the job is done, but instead on ``what'' the job requires. Most 
employers large and small now have job descriptions describing 
essential job functions, and they use those as objective hiring 
guides--a change in the hiring landscape driven entirely by the ADA. 
And, when employers do not comply with the obligations of the ADA, 
there has been a record of enforcement of the rights of individuals 
with disabilities before the EEOC \7\ and in court proceedings.\8\
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    \7\ For example, from July 26, 1992, through September 30, 2006, 
the EEOC reports that 235,465 charges were filed by individuals 
claiming violations of their rights under the ADA. Each year, since 
1992, the EEOC has resolved charges that have provided monetary 
benefits totaling approximately $44,000,000 per year to charging 
parties, for a total of $622,600,000 in monetary benefits throughout 
this time period. These monies do not include monetary benefits 
obtained by individuals or the EEOC through litigation in court. 
EEOC.gov, ADA Charges FY 1997-FY 2006, http://www.eeoc.gov/stats/ada-
charges.html (last visited Nov. 13, 2007).
    \8\ Courts have enforced significant monetary awards and entered 
injunctions to ensure ADA compliance where employers were found not to 
comply with existing ADA obligations. See, e.g., E.E.O.C. v. Tommy 
Bahama Group, No. 2:06-CV-01406-RSM (Empl. Discrim. Verdicts & 
Settlements) (BNA) (W.D. Wash. June 4, 2007) (consent decree enjoining 
employer from further ADA violations and requiring notices, training, 
and other relief); E.E.O.C. v. AmSan LLC, No. 2-06CV-260-J (Empl. 
Discrim. Verdicts & Settlements) (BNA) (N.D. Tex. May 23, 2007) 
(enjoining employer from engaging in ADA violations); Harding v. Cinbro 
Corp., No. 04-158-B-W (D. Me. August 22, 2006) (Empl. Discrim. Verdicts 
& Settlements) (BNA) (jury verdict in favor of employee who was 
terminated shortly after disclosing his medical condition to his 
employer); E.E.O.C. v. EchoStar Commc'ns Corp., No. 02-CV-00581 (Empl. 
Discrim. Verdicts & Settlements) (BNA) (D. Colo. May 6, 2005) (jury 
verdict in favor of blind applicant for failure to provide reasonable 
accommodation); Brady v. Wal-Mart Stores Inc., No. 03-CV-3834 (E.D.N.Y. 
February 23, 2005) (Empl. Discrim. Verdicts & Settlements) (BNA) (jury 
verdict in favor of disabled worker for violations under ADA and NY 
State Human Rights Law); Zolnick v. Graphic Packaging Corp., No. 00-CV-
1800 (Empl. Discrim. Verdicts & Settlements) (BNA) (D. Colo., September 
24, 2004) (jury verdict in favor of a disabled worker who was not 
allowed to return to work following recovery from brain aneurysm); 
Young v. DaimlerChrysler, No. IP-01-299-C-M/S (Empl. Discrim. Verdicts 
& Settlements) (BNA) (S.D. Ind. June 21, 2004) (jury verdict in favor 
of disabled worker denied transfer that would have accommodated her 
severely injured right arm).
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    In attempting to clarify the ADA, S. 1881 engages in precisely the 
wrongful conduct that the law was intended to prevent.\9\ In defining 
all impaired individuals as disabled, S. 1881 labels as ``disabled'' 
all individuals with impairments of any sort or degree--regardless of 
whether those impairments are functionally limiting. Congress expressly 
repudiated this approach in 1990:
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    \9\ 42 U.S.C. Sec. 1201 (a)(5)(7).

        [I]ndividuals with disabilities are a discrete and insular 
        minority who have been faced with restrictions and limitations, 
        subjected to a history of purposeful unequal treatment, and 
        relegated to a position 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 abilities of such 
        individuals to participate in, and contribute to, society; . . 
        . \10\
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    \10\ 42 U.S.C. Sec. 1201 (a)(7) (emphasis added).

    In effect, S. 1881 engrafts the ``regarded as'' definition into the 
first prong of the statutory definition of who is ``disabled'' under 
the act. Put another way, Congress would be ``regarding as'' disabled, 
individuals with non-disabling impairments. In a misguided attempt to 
advance the rights of persons with disabilities, the law would 
incorporate the stereotypic assumptions that it has taken our Nation 
years to advance above and beyond. By defining disability to mean 
``impairment,'' S. 1881 makes all impairments per se disabilities, thus 
repeating the wrongs the ADA was originally designed to eliminate.
    Moving the ADA's focus away from individuals with disabilities to 
individuals with impairments, as S. 1881 would do, will give virtually 
every employee the right to claim reasonable accommodation for some 
impairment, no matter how minor, unless the employer can prove that 
doing so would be an undue hardship. Employers will find themselves 
addressing potential accommodation requests from individuals with high 
cholesterol, back and knee strains, colds, the flu, poison ivy, 
sprained ankles, stomach aches, the occasional headache, a toothache, 
and a myriad of other minor medical conditions that go far beyond any 
reasonable concept of disability.
    Similarly, prohibiting employers from considering mitigating 
measures in determining whether someone has a disability will, in 
effect, make almost every individual someone who has a disability under 
the ADA. The clearest example pertains to eyesight. Without question, 
the ability to see is a major life activity. By requiring that we 
evaluate whether someone has a sight impairment without regard to 
mitigating measures means that anyone who wears glasses, contact 
lenses, has had laser surgery, or at any time in their life did not 
have 20/20 uncorrected eyesight, will be considered a person with a 
disability under the ADA.
    Finally, the ADA, like all other civil rights legislation relating 
to employment, currently requires the plaintiff to prove that he or she 
was qualified for the job at issue. S. 1881 would instead require 
employers, who are generally prohibited from inquiring into an 
employee's medical condition under the ADA, to bear this burden of 
proof, while the facts lie with the plaintiff.
    For these reasons, and all of the reasons set forth below, I oppose 
the Americans with Disabilities Act Restoration Act of 2007, as 
drafted, and urge the committee to carefully review the issues raised 
in this statement as it considers S. 1881.
                the ada's original purpose and language
    On July 26, 1990, the ADA was enacted into law with the stated 
purpose of providing a ``clear and comprehensive national mandate'' to 
eliminate discrimination against individuals with disabilities.\11\ 
Title I, the employment title of the ADA, has been considered the 
``most comprehensive piece of disability civil rights legislation ever 
enacted and the most important piece of civil rights legislation since 
the 1964 Civil Rights Act.'' \12\ In enacting the ADA, Congress 
expressly found, and included in the ADA's statutory language, that 
``some 43,000,000 Americans have one or more physical or mental 
disabilities. . . .'' \13\ Congress further found that individuals with 
disabilities were left with no legal recourse to counter the historical 
segregation and isolation that relegated the disabled to an inferior 
status in society.\14\ Thus, the ADA's overarching goal was to bring 
into the fold of mainstream society \15\ a ``discrete and insular 
minority'' of disabled individuals who had been ``subjected to a 
history of purposeful unequal treatment.'' \16\ Congress's findings, 
quoted above, are expressly incorporated into the ADA itself.
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    \11\ Title I relates to private and public sector employment. Title 
II relates to State and local governments. Title III relates to places 
of public accommodation. Title IV relates to telecommunications and 
common carriers. Pub. L. No. 101-336, 104 Stat. 327 (1990) (codified at 
42 U.S.C. Sec. Sec. 12101-12213 (1994); 47 U.S.C. Sec. 225711 (2001)).
    \12\ Arlene Mayerson, The Americans with Disabilities Act--An 
Historic Overview, 7 Lab. Law. 1 (1991); see also 1 Henry Perritt, Jr., 
Americans with Disabilities Act Handbook Sec. 1.01 at 3.
    \13\ 42 U.S.C. Sec. 12101(a)(1).
    \14\ 42 U.S.C. Sec. 12101(a)(2)-(5).
    \15\ Remarks of President George Bush at the Signing of the 
Americans with Disabilities Act (July 26, 1990), http://www.eeoc.gov/
ada/bushspeech.html (last visited Nov. 13, 2007).
    \16\ 42 U.S.C. Sec. 12101(a)(7).
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    The final version of the ADA was enacted into law following a 
period of considerable debate, negotiation, and compromise between 
Congress and President George H.W. Bush's administration.\17\ In the 
spirit of such compromise, the enacted law ``recognize[d] the civil 
rights of persons with disabilities as well as the economic restraints 
of businesses and other entities covered by the Act.'' \18\ While 
signing the ADA into law, President George H.W. Bush explained to 
America's business community the careful balance of opportunities and 
obligations reflected in the new law:
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    \17\ 1 Perritt, Jr., Americans with Disabilities Act Handbook, 
Sec. 2.02 at 19; The Americans with Disabilities Act: A Practical and 
Legal Guide to Impact Enforcement and Compliance, Bureau of National 
Affairs, Inc. at 35-62 (1990).
    \18\ Mayerson, 7 Lab. Law. 1, 6 (1991).

          You have in your hands the key to the success of this act, 
        for you can unlock a splendid resource of untapped human 
        potential that, when freed, will enrich us all. I know there 
        have been concerns that the ADA may be vague or costly, or may 
        lead endlessly to litigation. But I want to reassure you right 
        now that my administration and the U.S. Congress have carefully 
        crafted this Act. We've all been determined to ensure that it 
        gives flexibility, particularly in terms of the timetable of 
        implementation, and we've been committed to containing the 
        costs that may be incurred.\19\
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    \19\ Remarks of President George Bush at the Signing of the 
Americans with Disabilities Act (July 26, 1990), http://www.eeoc.gov/
ada/bushspeech.html (last visited Nov. 13, 2007).

    The ADA defines an individual with a disability as someone who 
either: (1) has a physical or mental impairment that substantially 
limits that person in one or more major life activity; or (2) has a 
record of such physical or mental impairment; or (3) is regarded as 
having such a physical or mental impairment.\20\ This definition of 
disability was adopted by Congress from Section 504 of the 
Rehabilitation Act of 1973, the statutory predecessor to the ADA that 
covered employers with Federal contracts and/or those receiving Federal 
financial assistance.\21\
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    \20\ 42 U.S.C. Sec. 12101(2).
    \21\ Rehabilitation Act of 1973, Pub. L. No. 93-112, amended by 
Pub. L. No. 93-516, 88 Stat. 1617 (1974) (codified at 29 U.S.C. 
Sec. 701 et seq.)
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    Under both the ADA and Rehabilitation Act, the definition of a 
physical or mental impairment has always been defined very broadly.\22\ 
Similarly, the EEOC's ADA regulations define physical and mental 
impairments as:
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    \22\ 29 CFR pt. 1630, App. Sec. 1630.2(h) (2006).

    (1) Any physiological disorder, or condition, cosmetic 
disfigurement, or anatomical loss affecting . . . neurological, 
musculoskeletal, special sense organs, respiratory (including speech 
organs), cardiovascular, reproductive, digestive, genitor-urinary, 
hemic and lymphatic, skin and endocrine: or
    (2) Any mental or psychological disorder, such as mental 
retardation, organic brain syndrome, emotional or mental illness, or 
specific learning disabilities.\23\
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    \23\ 29 CFR Sec. 1630.2(h) (2006).

    The language of the EEOC regulations mirrors that used in various 
ADA committee reports as descriptive of physical or mental impairments 
under the ADA.\24\ The EEOC regulations also mirror the 1977 
regulations issued by the Department of Health, Education, and Welfare 
(``HEW'') to define physical and mental impairments, and thereby 
implement Section 504.\25\ Given this broad definition of impairment, 
almost any physical or mental health condition--no matter how minor, 
episodic, latent, or temporary--would be covered. Courts addressing the 
meaning of impairment have held it to include the following examples of 
minor conditions: tennis elbow, headaches, high cholesterol, contusions 
to the knee, back strains, and knee strains.\26\ In sum, the definition 
of physical or mental impairment, under both the Rehabilitation Act and 
the ADA has been broad, sweeping, and inclusive for over 40 years.
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    \24\ S. Rep. No. 101-16, at 22 (1989); H.R. Rep. No. 101-485, pt. 2 
at 51 (1990); H.R. Rep. No. 101-485, pt. 3 at 28 (1990).
    \25\ See 45 CFR Sec. 84.3(j)(2)(1) (2005). Advocates for the ADA 
have described these regulations as ``the best source for understanding 
the definition of disability under the ADA.'' Chai R. Feldblum, The 
Americans With Disabilities Act Definition of Disability, 7 Lab. Law. 
11, 12-13 (1991).
    \26\ See, e.g., Cella v. Villanova Univ., 113 Fed. Appx. 454 (3d 
Cir. 2004) (tennis elbow); Sinclair Williams v. Stark County Bd. of 
Comm'rs, 7 Fed. Appx. 441 (6th Cir. 2001) (headaches); Benoit v. Tech. 
Mfg. Corp., 331 F.3d 166 (1st Cir. 2003) (back and knee strains).
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    For decades, Congress and the Federal agencies have agreed that a 
physical or mental impairment is necessary, but not sufficient, to 
trigger disability law protections. Beyond that, the impairment must 
also substantially limit the person in one or more major life 
activity.\27\ The 1977 HEW regulations, committee reports to the ADA, 
and EEOC regulations all set forth an illustrative list of ``major life 
activities'': ``caring for one's self, performing manual tasks, 
walking, seeing, hearing, speaking, breathing, learning, and working.'' 
\28\
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    \27\ 42 U.S.C. Sec. 12102(2)(A).
    \28\ See 45 CFR Sec. 84.3(j)(2)(ii) (2005); Senate Committee on 
Labor and Human Resources, S. Rep. No. 101-16, 101st Cong., 1st Sess., 
at 22 (1989); 29 CFR Sec. 1630.2(i).
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    The ADA's inclusion of ``substantially limits one or more of the 
major life activities of such individual'' was the result of deliberate 
and careful consideration by Congress. In adopting the substantial 
limitation on a major life activity requirement, Congress (not the 
Federal judiciary) made clear that covered disabilities do not include 
``minor, trivial impairments, such as a simple infected finger.'' \29\ 
Given an increasingly global economy, and the challenges faced by U.S. 
manufacturers competing with those in China and India, this committee 
must consider: Is American business better able to bear that burden 
now, than in 1990?
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    \29\ S. Rep. No. 101-16, at 23 (1990); H.R. Rep. No. 101-485, pt. 2 
at 52 (1990).
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    Whether an impairment substantially limits a major life activity 
for a particular person requires an individualized, case-by-case 
assessment of how that person's impairment (or impairments) affects the 
life of that individual. As even the EEOC has noted, ``the 
determination of whether an individual has a ``disability'' is not 
necessarily based on the name of the diagnosis of the impairment the 
person has, but rather on the effect of that impairment on the life of 
that individual.'' \30\
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    \30\ 29 CFR pt. 1630, App. Sec. 1630.2(j).
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    The ADA, like the Rehabilitation Act before it, did not attempt to 
create a ``laundry list'' of impairments that are necessarily 
disabilities, recognizing that some impairment may be disabling for 
particular individuals but not others, and that new impairments may be 
discovered in the future.\31\ Even short-term impairments can 
constitute a disability under both the ADA and the Rehabilitation Act, 
provided that such impairments substantially affect a major life 
activity. Consistent with Congress's intent, the EEOC's ADA regulations 
recognize that ``[m]any impairments do not impact an individual's life 
to the degree that they constitute disabling impairments.'' \32\ In 
sum, the individualized approach to determining ``disability'' under 
the ADA, i.e., how a particular impairment affects a particular 
individual in his or her major life activities, comports with how the 
Rehabilitation Act has operated for over 40 years.\33\
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    \31\ Id.
    \32\ Id.
    \33\ The analysis of ``who is a handicapped person under the 
[Rehabilitation] Act is best suited to a `case by case determination.' 
'' Rezza v. U.S. Dep't of Justice, No. 87-6732, 1988 WL 48541, at *2 
(E.D. Pa. May 16, 1988) quoting Forrisi v. Brown, 794 F.2d 931, 933 
(4th Cir. 1994). ``It is the impaired individual who must be examined 
not just the impairment in the abstract.'' E.E. Black, Ltd. v. 
Marshall, 497 F. Supp. 1088, 1099 (D. Haw. 1980) (determining whether a 
disability is a qualifying handicap under the Rehabilitation Act 
requires a case-by-case analysis). Originally, Section 504 of the 
Rehabilitation Act used the phrase ``handicap'' rather than 
``disability''; otherwise, however, the two acts are identical. In 
1992, the Rehabilitation Act was amended to make identical the 
standards for determining violations of the Rehabilitation Act and the 
ADA.
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    As a result, the functional approach to defining disability has 
resulted in similar impairments producing different determinations as 
to whether the impairment constituted a disability under the specific 
facts before the court. This is true, of course, under both the 
Rehabilitation Act and the ADA. The result naturally flows because two 
individuals with the same condition may be affected very differently by 
the condition, and the gravity of the effects of the condition may 
differ, leaving one individual substantially limited in performing a 
major life activity, while another individual with the same condition 
may not have any limitations.
    The following determinations under the Rehabilitation Act 
illustrate this concept. In Diaz v. United States Postal Service,\34\ 
an employee with chronic back problems was determined not to have a 
disability under the Rehabilitation Act, because the impairment did not 
substantially limit major life activities (specifically, manual tasks 
associated with employment). Whereas, in Schuett Investment Co. v. 
Anderson,\35\ an individual who suffered a back injury that 
substantially limited the individual's ability to perform manual tasks 
was found to have a disability under the Rehabilitation Act. Similarly, 
courts that have considered whether impaired vision is a disability 
have focused on the extent of the impairment, as well as the impact of 
the impairment on the individual in its corrected state. Courts reach 
different results depending on the facts of the particular case. Thus, 
in one case it was held that a person who had, at best, combined visual 
acuity of 20/100 with the use of conventional corrective lenses was 
determined to have a disability.\36\ On the other hand, an individual 
whose uncorrected vision was below the minimum level set for a police 
officer, but whose vision was correctable to 20/20, was held not to 
have a disability.\37\ When considering whether cerebral palsy rendered 
an individual substantially limited in a major life activity, courts 
have also reached different results depending on the severity of the 
condition and its impact on the life of the particular individual.\38\ 
Thus, prior to the ADA's passage, under the Rehabilitation Act, the 
same medical condition, depending on its impact on the individual, led 
to one individual being covered under the Rehabilitation Act, while 
another was not.
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    \34\ 658 F. Supp. 484 (E.D. Cal. 1987).
    \35\ 386 N.W.2d 249 (Minn. App. 1986).
    \36\ Sharon v. Larson, 650 F. Supp. 1396 (E.D. Pa. 1986).
    \37\ Padilla v. Topeka, 708 P.2d 543 (Kan. 1985) (myopic applicant 
for police officer position was not handicapped under the 
Rehabilitation Act).
    \38\ Compare Pridemore v. Rural Legal Aid Soc., 625 F. Supp. 1180 
(S.D. Ohio 1985) (individual with cerebral palsy does not have a 
disability under the Rehabilitation Act when the impairment had little 
outward manifestation and no apparent substantial limitation on any 
major life activity); with Fitzgerald v. Green Valley Area Educ. 
Agency, 589 F. Supp. 1130 (S.D. Iowa 1984) (individual with cerebral 
palsy and left-side hemipelia was substantially limited in a major life 
activity under the Rehabilitation Act).
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    Under the ADA, courts have applied this individualized, functional 
approach to the ADA. Thus, depending on the impact of the physical or 
mental impairment, it may or may not constitute a disability under the 
ADA. For example, in one case, a school custodian's recurrent 
depression constituted a disability within the meaning of the ADA 
because it substantially limited his ability to work and interact with 
others. In another, a plant worker's long history of depression was not 
a disability under the ADA because it had very little impact on her 
ability to work and care for herself.\39\ Similarly, individuals with 
arthritis,\40\ bipolar disorders,\41\ and epilepsy \42\ may or may not 
have a disability under the ADA, depending on the nature and extent 
their particular impairments impact their lives.
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    \39\ Compare Anderson v. Indep. Sch. Dist. No. 281, No. 01-560, 
2002 WL 31242212 (D. Minn. 2002) (individual with depression considered 
disabled under the ADA); with Cooper v. Olin Corp., 246 F.3d 1083 (8th 
Cir. 2001) (individual with depression not considered disabled under 
the ADA).
    \40\ Compare Bearshield v. John Morrell & Co., 570 N.W.2d 915 (Iowa 
1997) (individual with degenerative arthritis was not disabled because 
impairment had little impact on individual's life or ability to 
function); with Barnes v. Northwest Iowa Health Ctr., 238 F. Supp. 2d 
1053 (N.D. Iowa 2002) (particular individual's rheumatoid arthritis a 
disability under ADA).
    \41\ Compare Reed v. Lepafe Bakeries, Inc., 102 F. Supp. 2d 33 (D. 
Me. 2000), aff 'd 244 F.3d 254 (1st Cir. 2001) (individual with bipolar 
disorder was disabled under the ADA); and Carrozza v. Howard County, 
No. 94-1593, 1995 WL 8033 (4th Cir. Jan. 10, 1995) (individual with 
bipolar disorder was disabled under ADA as a major life activity was 
substantially impacted by this impairment); with Horwitz v. L & J.G. 
Stickley, Inc., 122 F. Supp. 2d 350 (N.D.N.Y. 2000) (individual's 
bipolar disorder did not constitute disability under ADA).
    \42\ Compare Granzow v. Eagle Food Ctrs. Inc., 27 F. Supp. 2d 1105 
(N.D. Ill. 1998) (individual's epilepsy was disability as it 
substantially limited her various major life activities); with EEOC v. 
Sara Lee Corp., 237 F.3d 349 (4th Cir. 2001) (individual with epilepsy 
did not present evidence sufficient to establish ADA coverage).
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    Finally, currently under the ADA, a plaintiff bears the burden to 
prove that he or she is a member of the protected class covered by that 
statute. The ADA incorporates the procedures of title VII.\43\ As a 
matter of logic and fairness, it has been interpreted as incorporating 
title VII's standards of proof.\44\
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    \43\ See 42 U.S.C. Sec. 12117(a) (``The powers, remedies, and 
procedures set forth in sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, 
and 2000e-9 of this title shall be the powers, remedies, and procedures 
this subchapter provides to the Commission, to the Attorney General, or 
to any person alleging discrimination on the basis of disability in 
violation of any provision of this chapter, or regulations promulgated 
under section 12116 of this title, concerning employment.'').
    \44\ See, e.g., Raytheon Co. v. Hernandez, 540 U.S. 44, 50 n.3 
(2003) (stating ``[t]he Courts of Appeals have consistently utilized . 
. . [the McDonnell Douglas burden-shifting] approach when reviewing 
motions for summary judgment in disparate-treatment cases'' and citing 
Pugh v. Attica, 259 F.3d 619, 626 (7th Cir. 2001) (applying burden-
shifting approach to ADA disparate-treatment claim)). See also 42 
U.S.C. Sec. 12113(a) (setting forth defenses under the ADA and not 
including defense that plaintiff is not a ``qualified individual'').
---------------------------------------------------------------------------
    s. 1881 goes far beyond the ada's original purpose and language
    When introduced on July 26, 2007, S. 1881 was described as a 
``modest, reasonable legislative fix . . . so that people who Congress 
originally intended to be protected from discrimination are covered 
under the ADA.'' \45\ Instead, Senate Bill 1881 significantly expands 
the original language and intent of the ADA. It does not merely clarify 
the ADA, and it does not revise it to reflect Congress's or President 
George H.W. Bush's original intent underlying its passage in 1990. S. 
1881 amends the ADA as described below.
---------------------------------------------------------------------------
    \45\ Cong. Rec. S10152 (daily ed. July 26, 2007) (statement of Rep. 
Harkin).
---------------------------------------------------------------------------
    First, S. 1881 expands the ADA's definition of disability by 
eliminating the requirement that the medical condition substantially 
impact one of the individual's major life activities. Without this 
original language, the ADA would deem a physical or mental impairment 
to be a ``per se disability'' without reference to the medical 
condition's effect on the person. As such, S. 1881 replaces the ADA's 
functional approach to defining a disability and replaces it with a per 
se approach that was rejected at the time of the ADA's passage, and 
that contravenes the definition of disability under the Rehabilitation 
Act as well.
    S. 1881 notes that one of the principal cases that has motivated 
its sponsors to propose amending the ADA is the Supreme Court's 
decision in Toyota Motor Mfg., Kentucky, Inc. v. Williams.\46\ In 
Toyota, the question posed to the U.S. Supreme Court was whether the 
plaintiff 's carpal tunnel syndrome and tendonitis were disabilities 
under the ADA. Importantly, there was no dispute that the plaintiff 's 
carpal tunnel syndrome and tendonitis were physical impairments.\47\ 
The issue before the Supreme Court was whether these impairments 
substantially limited the major life activity of performing manual 
tasks. Justice O'Connor, writing for a unanimous court, found that the 
term ``major life activity'' ``refers to those activities that are of 
central importance to daily life.'' \48\ The court noted that those 
impairments that only affect a major life activity in a ``minor way'' 
do not rise to the level of a disability. The court emphasized the need 
for individualized assessment of the effect of the impairment on each 
individual.\49\ Justice O'Connor held that it was insufficient to 
merely submit a medical diagnosis of impairment; rather, the individual 
must offer evidence of the impairment's impact on his or her own daily 
life activities.\50\
---------------------------------------------------------------------------
    \46\  534 U.S. 184 (2002).
    \47\ Id. at 196.
    \48\ Id. at 187.
    \49\ Id. at 199.
    \50\ Id. at 198.
---------------------------------------------------------------------------
    The Toyota case involved an individual who was injured at work and 
who alleged that she could not perform a job that required her, as part 
of a vehicle inspection process, to physically wipe painted car 
surfaces that were at or above shoulder level for significant periods 
of time.\51\ The individual had already been awarded workers' 
compensation and, without dispute, had previously been accommodated on 
several occasions by Toyota in various ways to allow her to continue 
working. While individuals may take issue with the Supreme Court's 
unanimous ruling, there is an important lesson in the facts of the 
case.
---------------------------------------------------------------------------
    \51\ Id. at 189.
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    Simply stated, if Congress enacts S. 1881 it should be prepared for 
the Federal courts to be inundated with tens of thousands of cases, if 
not more, filed by workers' compensation attorneys on behalf of 
individuals with minor work-related injuries that have no long-term or 
significant impact on their clients' daily life activities.\52\ Why 
would they do so? Because the ADA provides for attorneys' fees and 
compensatory and punitive damages to successful plaintiffs. From an 
employment attorney's standpoint, enactment of S. 1881 and the cascade 
of likely litigation that would follow would be a boon for business. 
Perhaps the more troubling concern is that these amendments will have 
the effect of diluting the definition of disability to such an extent 
that persons who are truly disabled, such as those who are deaf or 
blind or unable to walk, will find themselves in a long line of 
plaintiffs.
---------------------------------------------------------------------------
    \52\ Similarly, the EEOC, given the ADA's charge-filing 
prerequisite to bringing suit in court, will also be inundated with 
charges of violations by individuals who would qualify as disabled 
under S. 1881's definition. With scarce resources, the EEOC would also 
be forced to spend considerably more time simply administratively 
managing the many new charges from individuals who have no substantial 
limitation on a major life activity.
---------------------------------------------------------------------------
    Similarly, employers would be forced to implement workplace 
accommodations for people with tennis elbow who may need an arm 
support, for people with ingrown fingernails who request dictation 
software to avoid irritating their fingers while typing, to people with 
sprained ankles who request mobility assistance. With limited 
resources, employers may be faced with deciding whether to provide sign 
language interpreters for deaf employees at company meetings or special 
chairs or other mechanical devices to people with sore backs, tennis 
elbow, or sprained wrists. These are decisions that employers should 
not be required to make. Nor do they benefit the people whom the ADA is 
truly intended to protect.\53\
---------------------------------------------------------------------------
    \53\ Also, if employers are required to accommodate all of these 
minor impairments at what point do the sum total of the accommodations 
become an undue hardship, especially for small businesses?
---------------------------------------------------------------------------
    Who among us doesn't have some physical or mental impairment? Are 
all of us in this room individuals whom the ADA was intended to protect 
and bring into the mainstream of society? If so, what will be the 
impact on those individuals with disabilities that are substantial, who 
are competing for limited company resources and accommodations with 
others whose impairments are also covered under S. 1881's definition? 
Can an employer prefer one employee's request over another because of 
the perception that the request is ``more justified'' because of the 
nature of the ``impairment,'' or because the employee makes the request 
first (so that the employee who sprained her ankle at the basketball 
game 2 weeks ago whose doctor has requested that she be provided a 
handicap parking space gets the space in lieu of a newly-hired employee 
who uses a wheelchair)?
    Proponents of S. 1881 point to a number of cases in which 
individuals with certain impairments were determined to have a 
disability under the Rehabilitation Act, while other individuals with 
similar impairments were determined not to have a disability under the 
ADA, as support for their position that the ADA must be amended to 
ensure that all individuals with those impairments are covered by the 
ADA. As explained below, their analysis does not justify the definition 
of disability contained in S. 1881, as their analysis is faulty and 
misplaced, and does not support adopting any ``mental or physical 
impairment'' as the definition of disability under the ADA.
    Proponents of S. 1881 have argued that individuals with 
intellectual and developmental disabilities are not covered by the ADA, 
citing Littleton v. Wal-Mart Stores.\54\ This mischaracterizes the 
Littleton court's holding. The court did not hold that a plaintiff with 
intellectual and developmental disabilities could not be disabled under 
the ADA. The plaintiff in Littleton claimed that, because of his mental 
condition, he was substantially impaired in the major life activities 
of working, learning, thinking, and communicating. However, the 
plaintiff testified that there were no jobs that he could not perform, 
that he had graduated from high school and attended a technical 
college, and that he could read. Further, the plaintiff did not proffer 
any evidence to show that he was unable to think or communicate. 
Accordingly, the court held that the plaintiff 's mental impairment did 
not limit any major life activities.
---------------------------------------------------------------------------
    \54\ 231 Fed. Appx. 874 (11th Cir. 2007).
---------------------------------------------------------------------------
    This holding is not a blanket denial of coverage for mental 
disabilities under the ADA, as the proponents of S. 1881 suggest. In 
fact, courts have consistently held that where a mental condition 
substantially limits major life activities, a plaintiff is covered 
under the ADA.\55\ Proponents of S. 1881 have similarly 
mischaracterized the ADA's coverage of individuals with diabetes, 
noting that diabetics are not covered under the ADA. Again, this 
blanket statement is without merit. Courts have consistently held that 
an individual with diabetes is disabled under the ADA where the 
condition substantially limits a major life function of the 
individual.\56\
---------------------------------------------------------------------------
    \55\ See E.E.O.C. v. Dollar Gen. Corp., 252 F. Supp. 2d 277, 284-85 
(N.D. N.C. 2003) (holding that mentally retarded plaintiff with a 
mental impairment that substantially limited one or more of her major 
life activities was disabled under the ADA); McAlindin v. County of San 
Diego, 192 F.3d 1226, 1236 (9th Cir. 1999) (reversing grant of summary 
judgment, and holding that a genuine issue of material fact existed as 
to whether plaintiff 's anxiety disorder substantially limited a major 
life activity).
    \56\ See Lawson v. CSX Transp. Inc., 245 F.3d 916, 923 (7th Cir. 
2001) (``we have no difficulty in determining that Mr. Lawson's 
insulin-dependent diabetes . . . [is] a physical impairment under the 
act'' and that it impair[s] major life activities); Lutz v. Glendale 
Union High Sch., Dist. 205, 8 Fed. Appx. 720, 722 (9th Cir. 2001) 
(reversing summary judgment for plaintiff and holding there was a 
triable issue as to whether plaintiff 's diabetes substantially limited 
major life activity); Nawrot v. CPC Int'l, 277 F. 3d 896, 905 (7th Cir. 
2002) (``we are convinced that Nawrot has sufficiently demonstrated 
that his diabetes substantially limits his . . . major life 
activities.'').
---------------------------------------------------------------------------
    The court in Nawrot noted the importance of assessing individuals' 
physical impairments on a case-by-case basis under the ADA. The court 
stated that having diabetes was not per se dispositive of whether or 
not someone is disabled under the ADA; the answer to that question 
depends on the severity of the impairment. The court acknowledged what 
courts have acknowledged since the passage of the Rehabilitation Act--
that individuals with identical mental and physical impairments may or 
may not be disabled depending on the impact of the condition on their 
ability to perform major life activities. For example, while analyzing 
a claim under the Rehabilitation Act, the court in Elstner v. 
Southwestern Bell Tel. Co.\57\ stated that courts must consider the 
effects of impairments on individuals. ``The inquiry is, of necessity, 
an individualized one--whether the particular impairment constitutes 
for the particular person a significant barrier to employment.'' \58\ 
Furthermore, the court in Forrisi v. Bowen,\59\ cautioned against the 
very outcome that the proponents of S. 1881 are advocating. The court 
noted that defining a disability cannot be accomplished through 
``abstract lists and categories of impairments.'' As the Court of 
Appeals explained:
---------------------------------------------------------------------------
    \57\ 659 F. Supp. 1328, 1342 (S.D. Tex. 1987).
    \58\ Id. at 1342.
    \59\ 794 F.2d 931, 933-34 (4th Cir. 1986).

          The Rehabilitation Act assures that truly disabled, but 
        genuinely capable, individuals will not face discrimination in 
        employment because of stereotypes about the insurmountability 
        of their handicaps. It would debase this high purpose if the 
        statutory protections available to those truly handicapped 
        could be claimed by anyone whose disability was minor and whose 
        relative severity of impairment was widely shared. Indeed, the 
        very concept of an impairment implies a characteristic that is 
        not commonplace and that poses, for the particular individual, 
        a more general disadvantage in his or her search for 
        satisfactory employment.\60\
---------------------------------------------------------------------------
    \60\ Id. at 931 (emphasis added).

    For all of these reasons, we urge the committee to reject S. 1881's 
definition of disability as defined by any mental or physical 
impairment of any type.
    Second, contrary to S. 1881, mitigating measures should be 
considered in determining whether an individual has a disability under 
the ADA. The impact of mitigating measures on the definition of 
disability under the ADA has been controversial since the ADA's 
enactment. In Sutton v. United Air Lines\61\ the U.S. Supreme Court 
held that if a person takes steps ``to correct for, or mitigate, a 
physical or mental impairment, the effects of those measures--both 
positive and negative--must be taken into account when judging whether 
that person is `substantially' limited in a `major life activity.' '' 
Importantly, the Supreme Court's holding emphasizes that both the 
positive and negative effects of any mitigating measures must be taken 
into account when analyzing a person's potential disability. 
Accordingly, while the benefits of using medication or an adaptive 
device are to be considered in determining ADA coverage, so too are any 
side effects or negative ramifications. While subject to criticism, 
this common sense approach is preferable when considering the 
alternative.
---------------------------------------------------------------------------
    \61\ 527 U.S. 471, 482-83 (1999).
---------------------------------------------------------------------------
    If the statute were changed to bar consideration of mitigating 
measures, every person who at any time in his or her life has had 
uncorrected vision of less than 20/20 would have a disability. All of 
us who wear glasses or contact lenses would be covered. Individuals who 
had previously been near-sighted but who had the problem corrected by 
laser surgery would be covered because they have a history of an 
impairment. Even individuals who do not need glasses or corrective 
devices, but whose vision is impaired because they have less then 20/20 
uncorrected vision, would be covered.\62\ By removing this criteria, S. 
1881 would open a ``Pandora's Box'' of claims by people who do not have 
a disability under any rational interpretation of that term.
---------------------------------------------------------------------------
    \62\ Although estimates vary, there are approximately 10 million 
blind and visually impaired people in the United States. American 
Foundation for the Blind, Blindness Statistics, http://www.afb.org/
Section.asp?SectionID=15 (last visited Nov. 13, 2007). By contrast, 
approximately 78 percent of adults in the United States utilize some 
form of vision correction device: 67 percent wear prescription glasses; 
16 percent wear contact lenses; and 10 percent wear non-
prescription (i.e., reading) glasses. The Vision Care Institute of 
Johnson & Johnson Vision Care, Inc., Americans Are out of Focus on 
Proper Vision Care, Sept. 12, 2006, available at http://
www.harrisinteractive.com/news/newsletters/clientnews/
2006_JohnsonJohnsonVisionCare.pdf.
---------------------------------------------------------------------------
    The problems, however, do not end there. If mitigating measures are 
not to be considered, how would an employer accommodate an individual 
whose impairment was correctable by medication, such as hearing loss, 
hay fever, or asthma, but who refused physician recommended medications 
or devices? Today, courts would find that individual not protected 
under the ADA.\63\ However, under S. 1881, such individuals would 
clearly be covered. Employers would be forced to accommodate employees 
whose impairments could be readily corrected by medication, but who 
choose not to correct them for personal reasons. Similarly, people who 
choose not to wear glasses for vanity reasons would have to be 
accommodated.
---------------------------------------------------------------------------
    \63\ Nancy Lee Jones, CRS Report for Congress, The Americans with 
Disabilities Act (ADA): Statutory Language and Recent Issues, 7 
(Congressional Research Service 2007).
---------------------------------------------------------------------------
    Today we have heard legitimate concerns and issues relating to 
individuals with diabetes. Many of us are aware of the decision in Orr 
v. Wal-Mart Stores,\64\ where Mr. Orr was found not to have a 
disability because it was determined that his diabetes did not 
substantially affect a major life activity. In numerous other cases, 
however, individuals with diabetes have been found to have a disability 
under the ADA. For example, in Lawson v. CSX Transportation Inc.,\65\ 
cited by the dissent in Orr, the Seventh Circuit Court of Appeals found 
that the diabetic plaintiff was substantially limited in the major life 
activity of ``eating.'' The court reasoned that the plaintiff ``must 
always concern himself with the availability of food, the timing of 
when he eats and the type and quantity of food he eats.'' \66\ The 
court went on to hold that ``[t]he district court failed to consider 
the extent of the restrictions imposed by Mr. Lawson's treatment 
regimen and the consequences of noncompliance with that regimen.'' \67\ 
Ironically, Mr. Orr was precluded by the Eighth Circuit panel, over the 
objection of dissenting Judge Lay, from raising these issues because he 
had not pled that he was limited in the major life activity of eating 
in his original complaint.\68\ This is a procedural or evidentiary 
issue unique to that case, not a problem with the ADA itself.
---------------------------------------------------------------------------
    \64\ 297 F.3d 720, 724 (8th Cir. 2002).
    \65\ 245 F.3d 916, 923-24 (7th Cir. 2001).
    \66\ Id. at 924.
    \67\ Id.
    \68\ 297 F.3d at 725.
---------------------------------------------------------------------------
    Other cases are also illustrative. In Nawrot,\69\ the court found 
that the plaintiff had demonstrated that his diabetes substantially 
limited ``his ability to think and care for himself,'' which are both 
major life activities. In that case, the plaintiff injected himself 
with insulin approximately three times a day and tested his blood sugar 
at least 10 times a day.\70\ Even taking these mitigating measures into 
account, which the court noted were themselves a ``substantial 
burden,'' did not remedy all of the adverse effects of his 
diabetes.\71\ Despite his medication Mr. Nawrot still suffered from 
``unpredictable hypoglycemic episodes'' and during such episodes ``his 
ability to express coherent thoughts [was] significantly impaired.'' 
\72\ For these and other reasons, Mr. Nawrot was found to be covered 
under the ADA.\73\
---------------------------------------------------------------------------
    \69\ 277 F.3d 896, 905 (7th Cir. 2002).
    \70\ Id. at 901.
    \71\ Id. at 904.
    \72\ Id. at 905.
    \73\ See also, e.g., Rodriguez v. ConAgra Grocery Products Co., 436 
F.3d 468, 480-81 (5th Cir. 2006).
---------------------------------------------------------------------------
    In Sutton v. United Air Lines, the Supreme Court also cited 
Congress's finding in the plain language of the ADA (there were 
approximately 43 million Americans with one or more disabilities) as 
established that those whose impairments are largely corrected by 
medication or other devices do not have a disability within the meaning 
of the ADA.\74\ As Justice Ginsburg pointed out in her concurring 
opinion, the congressional finding that 43 million people had 
disabilities indicated that such persons ``are a discrete and insular 
minority'' that have been ``subject to a history of purposeful unequal 
treatment and relegated to a position of political powerlessness.'' 
\75\ The Supreme Court further noted that the finding that 43 million 
Americans had disabilities reinforced the fact that Congress adopted a 
``functional'' instead of a ``nonfunctional'' approach for the 
definition of disability.\76\ Indeed, the Supreme Court noted that if a 
``nonfunctional'' approach were used, allowing any health condition 
that impairs health or normal functions of an individual were all that 
was necessary to establish protection, there would be some ``160 
million'' Americans with disabilities.\77\ In short, the Supreme Court 
recognized the imperative of individualized inquiry into the impact of 
an impairment on each individual in determining coverage under the ADA. 
In contrast, S. 1881 would label all people with a particular condition 
as disabled irrespective of whether the condition even impairs, let 
alone substantially limits, any major life activity.
---------------------------------------------------------------------------
    \74\ 527 U.S. at 484-86.
    \75\ Id. at 494 (Ginsburg, J., concurring).
    \76\ Id. at 486-87.
    \77\ Id. at 487.
---------------------------------------------------------------------------
    Third, in a clear departure from the current statutory scheme, S. 
1881 shifts the burden of proof to the employer to demonstrate that an 
individual alleging discrimination ``is not a qualified individual with 
a disability.'' \78\ Indisputably, the protected class currently 
covered by the ADA includes ``qualified individual[s] with a 
disability'' \79\--disabled individuals who, with or without reasonable 
accommodation, can perform essential job functions.\80\ This inquiry 
involves two steps: (1) a determination of whether the individual 
``satisfies the requisite skill, experience, education and other job-
related requirements'' of the position; and (2) a determination of 
whether the individual ``can perform the essential functions of the 
position'' ``with or without accommodation.'' \81\
---------------------------------------------------------------------------
    \78\ See S. 1881 Sec. 7.
    \79\ See 42 U.S.C. Sec. 12112(a).
    \80\ 42 U.S.C. Sec. 12111(8).
    \81\ 29 CFR Sec. 1630.2(m).
---------------------------------------------------------------------------
    The calculated balancing of the rights and obligations between 
disabled employees and employers is clear from the ADA's legislative 
history.\82\ In accepting the House version of the definition, the 
Conference Committee rejected a Senate amendment that would have 
created a presumption favoring the employer's determination of 
essential functions.\83\ In so doing, the Conference Committee noted 
that the adopted language was ``not meant to change the current burden 
of proof.'' \84\ Thus, the plaintiff continues to bear the burden of 
proving he or she is ``qualified'' under the act.\85\ As a practical 
matter, that means employees with disabilities need only prove they are 
qualified, with or without accommodation, to perform the important 
parts of their jobs.
---------------------------------------------------------------------------
    \82\ See H.R. Rep. No. 101-485 (1990); S. Rep. No. 101-16 (1989).
    \83\ H.R. Rep. No. 101-485, at 33 (1990).
    \84\ Id. at 34.
    \85\ 1 Perritt, Jr., Americans with Disabilities Act Handbook, 
Sec. 3.06 at 115.
---------------------------------------------------------------------------
    Moreover, this compromise is rooted in the statutory scheme which 
circumscribes an employer's ability to ask an employee whether or not 
he or she has a disability, or about the ``nature or severity of such 
disability.'' \86\ Plainly, individuals possess and control 
confidential information about their own health that others do not, and 
to which others do not have access under the law. For this reason, 
employees are far better positioned than employers--who lack such 
information--to demonstrate that they are qualified individuals despite 
their medical conditions and/or limitations due to such conditions. 
Simply put, it would be unfair and impracticable to circumscribe 
employers from inquiries about medical conditions--as the law does--and 
at the same time impose on employers the burden of proving that a 
plaintiff is not a qualified individual under the ADA, as S. 1881 would 
do.
---------------------------------------------------------------------------
    \86\ 29 CFR Sec. 1630.13. The statute does permit wide-ranging 
post-offer, pre-employment inquiries and examinations of applicants. 29 
CFR Sec. 1630.14. However, employment decisions based on the results of 
such inquiries or examinations must be ``job-related and consistent 
with business necessity,'' 29 CFR ``1630.14(b), a stringent standard by 
all accounts. More importantly, as to current employees, Congress 
limited an employer's ability to ask about medical conditions based on 
the premise that someone currently performing a job is medically able 
to do so. EEOC Enforcement Guidance on Disability-Related Inquiries and 
Medical Examinations of Employees under the Americans with Disabilities 
Act No. 915.002 (2000).
---------------------------------------------------------------------------
    S. 1881's attempted reversal of Congress's allocation of the burden 
of proof contravenes the fundamental tenet of law disfavoring proof of 
a negative proposition.\87\ Requiring employers to bear the burden in 
litigation of disproving that an employee is qualified to perform a 
particular job would lead to a host of practical problems--and absurd 
litigation results--before and at trial. For example, whether an 
individual is ``qualified'' must be determined at the time of the 
employment action in question. By the time of litigation and/or trial, 
assuming an employee fails to share certain relevant information with 
an employer at the time of the challenged action, that critical 
information may no longer be available, which would unfairly prevent 
the employer from meeting its burden in litigation.
---------------------------------------------------------------------------
    \87\ 2 McCormick on Evidence 474-75 (Kenneth S. Broun, et al., 
eds., 6th ed. 2006); Walker v. Carpenter, 57 S.E. 461 (N.C. 1907) 
(``The first rule laid down in the books on evidence is to the effect 
that the issue must be proved by the party who states an affirmative, 
not by the party who states a negative.'').
---------------------------------------------------------------------------
    Significantly, if S. 1881 is enacted, it would not only reverse the 
ADA and its carefully crafted compromises, but it would also become the 
only Federal employment discrimination statute to shift the burden on 
this element--that is, a plaintiff 's membership in the protected 
class--to employers.\88\ Although individuals with disabilities are 
doubtless deserving of protection under Federal law, it seems a 
disservice to those individuals and members of other protected classes 
to give the ADA plaintiff in effect ``most-favored-nation'' status. 
Proponents of S. 1881 point out that title VII plaintiffs need not 
prove they are members of a protected class; for example, there is 
never a dispute that an African-American plaintiff is covered by title 
VII. But that is because title VII protects everyone, blacks and 
whites, men and women. Like the Age Discrimination in Employment Act, 
the ADA is different. As explained previously, it was irrefutably 
intended to cover a limited universe of Americans. Moreover, unlike 
virtually all other employment discrimination statutes, the ADA imposes 
certain affirmative obligations on employers. Those obligations result 
in preferences that only people with disabilities are entitled to 
receive.\89\
---------------------------------------------------------------------------
    \88\ See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) 
(Plaintiff bears burden as part of prima facie case to show he is a 
member of the protected class); Raytheon Co., 540 U.S. at 50, n.3.
    \89\ U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 397 (2002) 
(``Yet, the Act, U.S. Airways says, seeks only `equal' treatment for 
those with disabilities. . . . While linguistically logical, this 
argument fails to recognize what the act specifies, namely that 
preferences will sometimes prove necessary to achieve the act's basic 
equal opportunity goal. The act requires preferences in the form of 
`reasonable accommodations' that are needed for those with disabilities 
to obtain the same workplace opportunities that those without 
disabilities automatically enjoy. By definition any special 
`accommodation' requires the employer to treat an employee with a 
disability differently, i.e., preferentially.'' (emphasis in original.)
---------------------------------------------------------------------------
                               conclusion
    In conclusion, serious concerns exist with respect to the Americans 
With Disabilities Act Restoration Act of 2007. Mr. Chairman and members 
of the committee, I thank you for the opportunity to share some of 
those concerns with you today. Please do not hesitate to contact me if 
I can be of further assistance in this matter.

    Senator Harkin. Ms. Olson, thank you again very much for 
being here and I guess I could say, quite frankly, giving the 
opposing view on the legislation. I'll have more to ask 
questions about at the end here.

                  Opening Statement of Senator Murray

    Senator Murray. Mr. Chairman. I apologize, I'm going to 
have another issue that I have to be at in just a few minutes.
    If I could just say before I leave, I really want to thank 
you for having this really critical hearing on the effect of 
the court decisions, and what we need to be doing. As you know, 
I grew up in a household with my father in a wheelchair most of 
my life, he had multiple sclerosis. I so well remember not 
leaving to go anywhere unless we called to find out what the 
parking was like, whether there were curbs, how the doors 
opened, what the bathrooms were like whether a table was going 
to be there, I mean, it literally meant that my dad was 
housebound so many times.
    The ADA made a huge difference in my family's life, and I 
just know that if my father was still alive today and he was 
hearing of the challenges of so many people today, he would not 
want to go back to where we were when I was growing up, so this 
is really a critical issue.
    Let me just point out that, as a member of the Justice 
Committee, I fought very hard to make sure that we recognize 
the high number of men and women who are coming home today with 
mental health problems, Post-Traumatic Stress Syndrome, TBI--I 
am deeply concerned that unless we do make some changes in this 
law, that we're going to impact the very men and women who have 
gone to fight for us, and who are coming home as our warriors, 
and are going to be impacted by the restrictions of the court 
decisions. I think that's critical.
    I also would say that, as a member--as the Chair of the 
Transportation Appropriations Committee, I'm deeply concerned, 
too, about some of the court decisions recently on the Federal 
Motor Carrier Safety Administration's ability to regulate 
commercial buses in making sure that people are able to get on 
buses and that they follow up on what we expect them to do.
    I would just like to let you know, despite the fact that I 
have to leave, I'd like to submit some questions for the 
record, I want to thank you so much for looking at this, and I 
just urge all of us to remember that there are a lot of people 
out there that depend on us to do the right thing, so that they 
can be, to the fullest extent of themselves, an American who 
gives something back.
    I know that's what my Dad would have wanted, and I really 
appreciate it.
    [The prepared statement of Senator Murray follows:]

                  Prepared Statement of Senator Murray

    Thank you, Mr. Chairman, for calling this hearing to 
highlight the importance of restoring Congress' intent to 
protect individuals with disabilities from discrimination.
    Far too often, people with disabilities have been faced 
with unfair obstacles in their workplaces and communities--
obstacles that Congress hoped would be overcome by the 
enactment of the Americans with Disabilities Act 17 years ago.
    Unfortunately, recent court decisions have watered-down the 
protections that Congress intended to provide to these 
individuals.
    My father was disabled for much of his adult life. He had 
Multiple Sclerosis and was confined to a wheelchair. If my dad 
was here today--and faced discrimination in the workplace for 
his disability--he might not be protected under the very law 
meant to guard his rights because of the recent changes passed 
down by the courts. That's just not right.
    I continue to hear from people in my home State of 
Washington who are concerned that the rights and protections 
for people with disabilities are being diminished. They also 
tell me that too many citizens in our State are suffering 
because the system meant to empower them to live independent 
lives is not receiving adequate support.
    They have a right to be concerned. As thousands of wounded 
warriors return home from Iraq and Afghanistan in need of 
services, the President vetoed the spending bill that would 
have funded many of these critical support programs.
    For many years, my home State of Washington has provided 
protection from discrimination to people with disabilities by 
defining ``disability'' more broadly than the ADA. Last year, 
the Supreme Court of Washington threatened this broad 
protection by adopting the narrow definition of ``disability'' 
set forth in the ADA. Fortunately, the Washington State 
legislature understood that by importing the ADA definition, 
our State would inherit all of the problems that the ADA's 
definition has caused. The legislature rejected the ADA 
language and amended Washington's statutory definition of 
disability to make it clear that our State protects all people 
who are discriminated against based on disability.
    Washington is a success story, but it is the exception, not 
the rule. Many more States have adopted the language of the ADA 
and therefore, provide little or no protection to those who 
face disability discrimination. The time has come for the ADA 
to lead and not follow--to make good on its promise of equality 
to people with disabilities.
    Mr. Chairman, today's hearing is about restoring the voice 
and dignity of those who are discriminated against because of a 
disability. I look forward to working with my colleagues in 
this committee and across the isle to restore these 
protections.
    Senator Harkin. Senator Murray, thank you very much, and 
thanks for being here, and thanks for being such a great member 
of this committee, and I look forward to your help as we try to 
move this legislation through.
    Thank you very much.
    Now we turn to Professor Chai Feldblum, Professor at 
Georgetown University Law Center, here. Graduated from Harvard 
Law School, served with Justice Harry Blackman on the U.S. 
Supreme Court. I first met Professor Feldblum when she was one 
of the lead lawyers working with the American Civil Liberties 
Union on the ADA back in 1989 and 1990. She has written many, 
many, many articles. I can't say I've read every one, but I've 
read a lot of them, trying to keep up on the evolving law in 
this area.
    Again, welcome back to the committee.
    I didn't say this at the beginning, and I want to make sure 
it's clear on the record that all of your written statements 
will be made a part of the record in their entirety.
    Please, proceed.

    STATEMENT OF PROFESSOR CHAI FELDBLUM, DIRECTOR, FEDERAL 
LEGISLATION CLINIC AND PROFESSOR OF LAW, GEORGETOWN LAW CENTER, 
                        WASHINGTON, DC.

    Ms. Feldblum. Thank you, and I don't want to have you to 
read all of those articles, so I'm also hoping to keep this in 
my 5 minutes here.
    Thank you, and I hope to demonstrate in my remarks how the 
promise of the ADA has, in fact, not been kept, because the 
courts have not followed congressional intent.
    Let me also say, in case someone doesn't care about what 
your intent was 17 years ago, because as you noted, Senator 
Harkin, a lot of your colleagues weren't here. I hope to also 
demonstrate in my remarks that the status quo is simply 
unacceptable as a matter of sound public policy. Even 
regardless of intent, one needs to restore the ADA.
    First about intent. How has congressional intent been 
undermined? First, in the case of Sutton v. United Airlines, 
which you've heard about, the U.S. Supreme Court decided that a 
court should take into account mitigating measures in deciding 
whether someone has an impairment that, ``substantially limits 
a major life activity,'' even though--as you've heard--every 
committee report said, do not take mitigating measures into 
effect.
    Now, you've heard a lot about this case, but I want to draw 
your attention to two sentences in the case. Justice O'Connor, 
writing for the majority, was responding to the dissent's 
concern that people with prosthetic limbs, or people who take 
medicine for epilepsy or high blood pressure, might be excluded 
based on the rule that the Court was announcing in that case 
dealing with people wearing eyeglasses.
    Here's how Justice O'Connor responded,

          ``Individuals who use prosthetic limbs may be mobile 
        and capable of functioning in society, but still be 
        disabled because of a substantial limitation on their 
        ability to walk or run. The same may be true of 
        individuals who take medicine to lessen the symptoms of 
        an impairment, but nevertheless remain substantially 
        limited.''

    You know what? Justice O'Connor was exactly right.
    If you come back from Iraq with an amputated leg, and 
you're fitted with a prosthetic limb, like some of the people 
Senator Murray and you mentioned, but you don't adapt very well 
to that limb, and you are still substantially limited which, by 
the way, under current case law means you were severely limited 
in your ability to walk or run, you'll be covered under the 
ADA.
    If, God forbid, you are lucky enough to adapt well to your 
prosthetic limb which, thankfully, hundreds of veterans are 
being able to do, based on developments in technology, and you 
walk and run just fine, but you are not hired because an 
employer doesn't want someone with a prosthetic limb in the 
workplace, you're not covered under the ADA.
    Same goes for an impairment that can be treated with 
medication. If you're unlucky enough to be the person that Ms. 
Olson quotes in her written testimony, here's the quote, 
``Despite his medication, Mr. Naras still suffered from 
unpredictable hypoglycemic episodes,'' that is, if your 
medication does not work particularly well, so you're still 
substantially limited, you will probably pass the first hurdle 
of the ADA and be considered disabled. And whether, of course, 
you can then prove that you're qualified for the job is another 
story, hence one of the Catch-22s.
    If the medication for your epilepsy or diabetes or Post-
Traumatic Stress Disorder is working well, and you are not 
substantially limited in any way, but you were fired from a job 
because of that condition, or more likely, you were not 
provided an accommodation for that condition, you're out of 
luck.
    Is this a logical way to protect those with disabilities 
from employment discrimination? I think not.
    Here's the second way in which congressional intent was 
undermined. Under the Rehabilitation Act, a person was covered 
under the ``regarded as'' prong of the definition of 
handicapped, the third prong, if the person could prove that he 
or she was not hired, or was fired from a particular job 
because of that impairment. It didn't matter how minor or 
temporary the impairment was, as long as the person could prove 
it was the basis for discrimination.
    All of the committee reports of the ADA noted that the same 
coverage would apply under the ADA. In Sutton, the U.S. Supreme 
Court blew a hole in the third prong. It announced a new rule, 
that to establish coverage under the ``regarded as'' prong, an 
individual had to prove, not only that the employer regarded 
the person as limited in that one job the employer was 
offering, but also thought that lots of other employers in a 
broad range of jobs wouldn't hire that person, either. This 
makes no sense as a matter of sound public policy.
    S. 1881 remedies the misinterpretations of the ADA in the 
Sutton case, and the stringent standard for coverage set forth 
by the Court in a later case by deleting the requirement 
``substantially limiting major life activity,'' and extending 
coverage to those with physical or mental impairments, who 
experience discrimination based on that impairment.
    In conclusion, let me address the concerns raised by Ms. 
Olson, both in her written testimony and here, that the 
approach of S. 1881 will undermine the cause of people of 
disabilities, because the law will no longer cover the ``truly 
disabled'' only. Oh my God, all of us might be included.
    You know what? This room is filled with people with 
disabilities who want Congress to pass S. 1881. They don't 
believe the bill sets back their cause. Why not? Because they 
understand there is no set of the truly disabled, and then the 
rest of us. We all exist along a spectrum of abilities. It is 
true that many of us may never experience discrimination 
because of our physical or mental impairments, but others of us 
might.
    This is not because some of us are truly disabled and 
others of us are not. It is because of the types of 
discrimination that some of us will suffer, and others of us 
will not. There is no ``us'' and ``them.'' There is simply a 
vision of equality and justice.
    It's time for Congress to restore the ADA and have it 
fulfill its true promise.
    Thank you.
    [The prepared statement of Ms. Feldblum follows:]
                 Prepared Statement of Chai R. Feldblum
    Mr. Chairman and members of the committee, I am pleased to testify 
before you today. My name is Chai Feldblum, and I am a Professor of Law 
and Director of the Federal Legislation Clinic at Georgetown University 
Law Center. The lawyers and students at the Federal Legislation Clinic 
provide pro bono legislative lawyering services to the Epilepsy 
Foundation in support of its efforts to advance the ADA Restoration 
Act.
    Today, however, I am testifying on my own behalf as an expert on 
the Americans with Disabilities Act of 1990 (ADA). During passage of 
the ADA, I served as one of the lead legal advisors to the disability 
and civil rights communities in the drafting and negotiating of that 
legislation.
    In this testimony, I provide a brief overview of the bipartisan 
support that propelled passage of the ADA in 1990 and describe how 
Congress intended the ADA's definition of disability to be consistent 
with the definition of ``handicap'' that had been applied by the courts 
for 15 years under Sections 501, 503 and 504 of the Rehabilitation Act 
of 1973. I then explain how the courts have narrowed the definition of 
disability under the ADA in a manner that is inconsistent with 
Congressional intent and I offer some observations on why the courts 
may have acted in such a manner. Finally, I explain how the current 
status quo should be considered unacceptable to any Congress that cares 
about providing substantive and real protection for people with 
disabilities and how the only way to fix this problem is to fix the 
language of the ADA itself.
                i. the bi-partisan enactment of the ada
    A first version of the ADA was introduced in April 1988 by Senators 
Lowell Weicker and Tom Harkin and 12 other cosponsors in the Senate, 
and by Congressman Tony Coelho and 45 cosponsors in the House of 
Representatives.\1\ This version of the ADA was based on a draft from 
the National Council on Disability (NCD), an independent Federal agency 
composed of 15 members appointed by President George H.W. Bush which 
was established by Congress to advise the President and Congress on 
issues concerning people with disabilities.\2\
---------------------------------------------------------------------------
    \1\ H.R. 4498, 100th Cong., 2d Sess., 134 Cong. Rec. H2757 (daily 
ed. Apr. 29, 1988) (introduction of H.R. 4498); S. 2345, 100th Cong., 
2d Sess., 134 Cong. Rec. S5089 (daily ed. Apr. 28, 1988) (introduction 
of S. 2345).
    \2\ National Council on Disabilities, on the Threshold of 
Independence (1988), available at http://www.ncd.gov/newsroom/
publications/1988/threshold.htm. Lowell Weicker, at that time, the 
Republican Senator from Connecticut and the ranking minority member of 
the Subcommittee on the Handicapped, was approached by the National 
Council on Disability to take the lead on the ADA because of his 
longstanding interest in the area of disability rights. Senator Tom 
Harkin, a Democratic Senator from Iowa and Chairman of the Subcommittee 
on the Handicapped, worked closely with Senator Weicker in this 
endeavor. In the House of Representatives, Congressman Tony Coelho, a 
Democrat from California and third-ranking member in the House 
Democratic Leadership, was the key leader in the development of the 
ADA.
---------------------------------------------------------------------------
    In May 1989, a second version of the ADA was introduced by Senators 
Tom Harkin, Edward Kennedy, Robert Dole, Orrin Hatch and 30 cosponsors 
in the Senate, and by Congressman Steny Hoyer and 45 cosponsors in the 
House of Representatives.\3\ This version of the bill was the result of 
extensive discussions with a wide range of interested parties, 
including members of the disability community, the business community, 
and the first Bush administration.\4\
---------------------------------------------------------------------------
    \3\ H.R. 2273, 101st Cong., 1st Sess., 135 Cong. Rec. H1791 (daily 
ed. May 9, 1989); S. 933, 101st Cong., 1st Sess., 135 Cong. Rec. S4984-
98 (daily ed. May 9, 1989).
    \4\ See Chai R. Feldblum, Medical Examinations and Inquiries Under 
the Americans with Disabilities Act: A View from the Inside, 64 Temple 
Law Review 521, 521-532 (1991) (providing a brief overview of passage 
of the ADA, including a brief description of the various stages of 
negotiation on the bill).
---------------------------------------------------------------------------
    Negotiations on the ADA continued within each committee that 
reviewed the bill and, in each case, the negotiations resulted in 
broad, bipartisan support of the legislation. The Senate Committee on 
Labor and Human Resources favorably reported the bill by a vote of 16-
0;\5\ the House Committee on Education and Labor favorably reported the 
bill by a vote of 35-0;\6\ the House Committee on Energy and Commerce 
favorably reported the bill by a vote of 40-3;\7\ the House Committee 
on Public Works and Transportation favorably reported the bill by a 
vote of 45-5;\8\ and the House Committee on the Judiciary favorably 
reported the bill by a vote of 32-3.\9\
---------------------------------------------------------------------------
    \5\ S. Rep. No. 101-116 at 1 (1989).
    \6\ H.R. Rep. No. 101-485, pt. 2, at 50 (1990).
    \7\ H.R. Rep. No. 101-485, pt. 4, at 29 (1990).
    \8\ H.R. Rep. No. 101-485, pt. 1, at 52 (1990).
    \9\ H.R. Rep. No. 101-485, pt. 3, at 25 (1990).
---------------------------------------------------------------------------
    After being reported out of the various committees, the ADA passed 
the Senate by a vote of 76-8 in September 1989 and the House of 
Representatives by a vote of 403-20 in May 1990.\10\ Both Houses of 
Congress subsequently passed the conference report by large margins as 
well: 91-6 in the Senate and 377-28 in the House of 
Representatives.\11\
---------------------------------------------------------------------------
    \10\ 135 Cong. Rec. S10803 (daily ed. Sept. 7, 1989); 136 Cong. 
Rec. H2638 (daily ed. May 22, 1990).
    \11\ 136 Cong. Rec. S9695 (daily ed. July 13, 1990); 136 Cong. Rec. 
H4629 (daily ed. July 12, 1990).
---------------------------------------------------------------------------
    On July 26, 1990, President George H.W. Bush signed the ADA into 
law, stating:

          [N]ow I sign legislation which takes a sledgehammer to [a] . 
        . . wall, one which has for too many generations separated 
        Americans with disabilities from the freedom they could 
        glimpse, but could not grasp. Once again, we rejoice as this 
        barrier falls for claiming together we will not accept, we will 
        not excuse, we will not tolerate discrimination in America.'' 
        \12\
---------------------------------------------------------------------------
    \12\ Remarks of President George H.W. Bush at the Signing of the 
Americans with Disabilities Act of 1990 (July 26, 1990), available at 
http://www.eeoc.gov/ada/bushspeech.html.

Standing together, leaders from both parties described the ADA as 
``historic,'' ``landmark,'' and an ``emancipation proclamation for 
people with disabilities.'' \13\
---------------------------------------------------------------------------
    \13\ According to President George H.W. Bush, the ADA was a 
``landmark'' law, an ``historic new civil rights Act . . . the world's 
first comprehensive declaration of equality for people with 
disabilities.'' See id. Senator Orrin G. Hatch declared that the ADA 
was ``historic legislation'' 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.'' 
Senator Edward M. Kennedy called the ADA a ``bill of rights'' and 
``emancipation proclamation'' for people with disabilities. See 
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.
---------------------------------------------------------------------------
    The purpose of the original legislation 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.\14\ It was Congress' hope and intention that people 
with disabilities would be protected from discrimination in the same 
manner as those who had experienced discrimination on the basis of 
race, color, sex, national origin, religion, or age.\15\
---------------------------------------------------------------------------
    \14\ See Americans with Disabilities Act Sec. 2(b), 42 U.S.C. 
Sec. 12101(b) (2007).
    \15\ 42 U.S.C. Sec. 12101 (a), (b).
---------------------------------------------------------------------------
    But that did not happen. In recent years, the Supreme Court has 
restricted the reach of the ADA's protections by narrowly construing 
the definition of disability contrary to congressional intent. As a 
result, people with a wide range of impairments whom Congress intended 
to protect, including people with cancer, epilepsy, diabetes, hearing 
loss, multiple sclerosis, HIV infection, intellectual disabilities, 
post-traumatic stress disorder (PTSD), and many other impairments, are 
routinely found not to be ``disabled'' and therefore not covered by the 
ADA.
    The difficulty with this scope of coverage under the ADA is 
significant--studies show that plaintiffs lose 97 percent of ADA 
employment discrimination claims, frequently on the grounds that they 
do not meet the definition of ``disability.'' \16\ The National Council 
on Disability has stated that Supreme Court decisions narrowing the 
definition of disability ``ha[ve] significantly diminished the civil 
rights of people with disabilities,'' ``blunt[ing] the Act's impact in 
significant ways,'' and ``dramatic[ally] narrowing and weakening . . . 
the protection provided by the ADA.'' \17\
---------------------------------------------------------------------------
    \16\ Amy L. Allbright, 2006 Employment Decisions Under the ADA 
Title I--Survey Update, 31 Mental & Physical Disability L. Rep. 328, 
328 (July/August 2007) (stating that in 2006, ``[o]f the 218 
[employment discrimination] decisions that resolved the claim (and have 
not yet changed on appeal), 97.2 percent resulted in employer wins and 
2.8 percent in employee wins''); see also Amy L. Allbright, 2003 
Employment Decisions Under the ADA Title I--Survey Update, 28 Mental & 
Physical Disability L. Rep. 319, 319-20 (May/June 2003) (``One such 
obstacle [for plaintiffs to overcome] is satisfying the requirements 
that the plaintiff meet the ADA's restrictive definition of 
disability--a physical or mental impairment that substantially limits a 
major life activity, a record of such an impairment, or being regarded 
as having such an impairment--and still be qualified to perform 
essential job functions with or without reasonable accommodation. A 
clear majority of the employer wins in this survey were due to 
employees' failure to show that they had a protected disability.'' ) 
(emphasis added); see also Ruth Colker, Winning and Losing Under the 
ADA, 62 Ohio St. L.J. 239, 246 (2001) (``[A]ppellate litigation 
outcomes under the ADA are more pro-defendant than under other civil 
rights statutes.'' ); Ruth Colker, The Americans with Disabilities Act: 
A Windfall for Defendants, 34 Harv. C.R.-C.L. L. Rev. 99, 100-01 
(``[C]ontrary to popular media accounts, defendants prevail in more 
than 93 percent of reported ADA employment discrimination cases decided 
on the merits at the trial court level. Of those cases that are 
appealed, defendants prevail in 84 percent of reported cases. These 
results are worse than results found in comparable areas of the law; 
only prisoner rights cases fare as poorly.'' ).
    \17\ National Council on Disabilities, Righting the ADA, pt. I 
(2004), available at http://www.ncd.gov/newsroom/publications/2004/
righting_ada.htm.
---------------------------------------------------------------------------
    As demonstrated by the legislative history of the ADA, Congress 
never intended the law's definition to be interpreted in such a 
restrictive fashion.
   ii. congressional intent behind the ada's definition of disability
    When writing the ADA that was introduced in 1989, Congress borrowed 
the definition of ``disability'' from Sections 501, 503 and 504 of the 
Rehabilitation Act of 1973, a predecessor civil rights statute for 
people with disabilities that covered the Federal Government, Federal 
contractors, and recipients of Federal financial assistance. For 
purposes of Title V of the Rehabilitation Act, ``handicap'' was defined 
as: (1) a physical or mental impairment that substantially limits one 
or more of the major life activities of such individual; (2) a record 
of such an impairment; or (3) being regarded as having such an 
impairment.\18\
---------------------------------------------------------------------------
    \18\ 29 U.S.C. Sec. 705(20)(B) (2007); see Americans with 
Disabilities Act, 42 U.S.C. Sec. 12101(2) (2007). At the time the ADA 
was being drafted, section 504 used the term ``handicap'' rather than 
``disability.'' Section 504 has since been amended to use the term 
``disability.'' The definition of ``handicap'' under section 504 and of 
``disability'' under the ADA is identical.
---------------------------------------------------------------------------
    For 15 years, the courts had interpreted this definition to cover a 
wide range of physical and mental impairments, including epilepsy, 
diabetes, intellectual and developmental disabilities, multiple 
sclerosis, PTSD, and HIV infection.\19\ Indeed, in School Board of 
Nassau County v. Arline, the Supreme Court explicitly acknowledged that 
section 504's ``definition of handicap is broad,'' and that by 
extending the definition to cover those ``regarded as'' handicapped, 
Congress intended to cover those who are not limited by an actual 
impairment but are instead limited by ``society's accumulated myths and 
fears about disability and disease.'' \20\
---------------------------------------------------------------------------
    \19\ See, e.g., Local 1812, Am. Fed'n. of Gov't Employees v. U.S., 
662 F. Supp. 50, 54 (D.D.C. 1987) (person with HIV disabled); Reynolds 
v. Brock, 815 F.2d 571, 573 (9th Cir. 1987) (person with epilepsy 
disabled); Flowers v. Webb, 575 F. Supp. 1450, 1456 (E.D.N.Y. 1983) 
(person with intellectual and developmental disabilities disabled); 
Schmidt v. Bell, No. 82-1758, 1983 WL 631, at *10 (E.D. Pa. Sept. 9, 
1983) (person with PTSD disabled); Bentivegna v. U.S. Dep't of Labor, 
694 F.2d 619, 621 (9th Cir. 1982) (person with diabetes disabled); 
Pushkin v. Regents of Univ. of Colo., 658 F.2d 1372, 1376 (10th Cir. 
1981) (person with multiple sclerosis disabled). See generally Chai R. 
Feldblum, Definition of Disability Under Federal Anti-Discrimination 
Law: What Happened? Why? And What Can We Do About It?, 21 Berkeley J. 
Emp. & Lab. L. 91, 128 (2000) (hereinafter ``Definition of 
Disability'') (``[A]lthough there had been . . . a few adverse judicial 
opinions under section 504 that had rejected coverage for plaintiffs 
with some impairments, those opinions were the exception, rather than 
the rule, in litigation under the Rehabilitation Act.'' )
    \20\ See School Bd. of Nassau County v. Arline, 480 U.S. 273, 284 
(1987).
---------------------------------------------------------------------------
    When the ADA was enacted, Congress consistently referred to court 
interpretations of ``handicap'' under section 504 as its model for the 
scope of ``disability'' under the ADA. For example, the Senate 
Committee on Labor and Human Resources noted that:

          ``the analysis of the term `individual with handicaps' by the 
        Department of Health, Education and Welfare in the regulations 
        implementing section 504 . . . apply to the definition of the 
        term `disability' included in this legislation.'' \21\
---------------------------------------------------------------------------
    \21\ S. Rep. No. 101-116 at 21 (1989).

---------------------------------------------------------------------------
    Similarly, the House Committee on the Judiciary observed that:

          ``The ADA uses the same basic definition of `disability' 
        first used in the Rehabilitation Act of 1973 and in the Fair 
        Housing Amendments Act of 1988. . . . [I]t has worked well 
        since it was adopted in 1973.'' \22\
---------------------------------------------------------------------------
    \22\ H.R. Rep. No. 101-485, pt. 3, at 27 (1990).

    Second, the committee reports explicitly stated that mitigating 
measures should not be taken into account in determining whether a 
person has a ``disability'' for purposes of the ADA. As the Senate 
---------------------------------------------------------------------------
Committee on Labor and Human Resources put it:

          A person is considered an individual with a disability for 
        purposes of the first prong of the definition when the 
        individual's important life activities are restricted as to the 
        conditions, manner, or duration under which they can be 
        performed in comparison to most people. . . . [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.\23\
---------------------------------------------------------------------------
    \23\ S. Rep. No. 101-116 at 121 (1989).

    Finally, the committee reports specifically referenced the breadth 
of the interpretation offered by the Supreme Court in the Arline 
decision with regard to the third prong of the definition of 
disability, the ``regarded as'' prong. During oral argument in the 
Arline case, the Solicitor General had sought to reject an 
interpretation of the ``regarded as'' prong that would have established 
coverage for any individual with an impairment, as long as the 
impairment was proven by the individual to have been the basis of an 
adverse decision. As the Solicitor General argued, such an approach 
would allow plaintiffs to make ``a totally circular argument which 
lifts itself by its bootstraps.'' \24\
---------------------------------------------------------------------------
    \24\ Arline, 480 U.S. at 283 n.10 (1987).
---------------------------------------------------------------------------
    But the Supreme Court had responded that ``[t]he argument is not 
circular, however, but direct.'' \25\ As the Court explained:
---------------------------------------------------------------------------
    \25\ Id.

          ``Congress plainly intended the Act to cover persons with a 
        physical or mental impairment (whether actual, past, or 
        perceived) that substantially limited one's ability to work.'' 
        \26\
---------------------------------------------------------------------------
    \26\ Id.

---------------------------------------------------------------------------
    And, as the Court went on to explain:

          ``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.'' \27\
---------------------------------------------------------------------------
    \27\ Id. at 283; see Feldblum, Definition of Disability, supra note 
19, 116-118 for a full analysis of the Arline opinion.

    That was the situation in the Arline case, where a school board 
regarded an individual with tuberculosis that was no longer limiting 
any of her major life activities as nonetheless limited in her one job 
of being a schoolteacher.
    The committee reports to the ADA endorsed this view of the third 
prong of the definition. As the Senate Committee on Labor and Human 
Resources Report summarized the coverage under the third prong:

          ``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 toward 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.'' \28\
---------------------------------------------------------------------------
    \28\ S. Rep. No. 101-116 at 24 (1989); see also H.R. Rep. No. 101-
485, pt. 2, at 53 (1990) (discussing Arline)

    Because coverage under the third prong relies on a discriminatory 
action by one entity (e.g., an employer or a business), the fact that 
other entities may not hold the same adverse perception of the 
individual with the actual or perceived impairment is irrelevant. As 
---------------------------------------------------------------------------
the House Committee on the Judiciary Report put it:

          ``[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.'' \29\
---------------------------------------------------------------------------
    \29\ H.R. Rep. No. 101-485, pt. 3, at 30 (1990).

    As evident from the ADA's legislative history, Congress' decision 
to adopt section 504's definition of disability was a deliberate 
decision to cover the same wide group of individuals who had been 
covered under that law. Congress expected that the definition of 
``disability'' would be interpreted as broadly under the ADA as it had 
been interpreted under the existing disability rights law for over 15 
years.
    Disability rights advocates like myself--blissfully unaware of what 
the future would hold for the definition of disability--fully supported 
Congress' incorporation of the section 504 definition into the ADA. We 
agreed with Congress' legal judgment that the 15-year-old definition 
would cover people with a wide range of physical and mental 
impairments, based on the record in the case law under section 504. In 
addition, we were particularly reassured by the reasoning of the 
Supreme Court just 2 years earlier in the Arline case--the case so 
consistently referred to in the various committee reports. Under the 
Court's interpretation, the third prong of the definition was 
sufficiently broad to capture any individual who had been explicitly 
discriminated against because of an actual or perceived impairment, 
regardless of how minor that impairment was if it existed (e.g., a 
cosmetic disfigurement or a burn) or even if no impairment existed at 
all.
    We were soon to be rudely surprised by new interpretations of the 
definition of disability by various courts, including the Supreme 
Court.
           iii. judicial narrowing of coverage under the ada
    Over the past several years, the Supreme Court and lower courts 
have narrowed coverage under the ADA by interpreting each and every 
component of the ADA's definition of disability in a strict and 
constrained fashion. This has resulted in the exclusion of many persons 
that Congress intended to protect.\30\
---------------------------------------------------------------------------
    \30\ See Appendix A for coverage of people under section 504 as 
compared to the ADA; see Appendix B for case stories of people denied 
coverage under the ADA.
---------------------------------------------------------------------------
    The Supreme Court has narrowed coverage under the ADA in three 
primary ways:

    (A) In 1999, by requiring that courts take into account mitigating 
measures when determining whether a person is ``substantially limited 
in a major life activity'';
    (B) Also in 1999, by requiring people who allege that they are 
regarded as being substantially limited in the major life activity of 
working (because an employer has refused to hire them for a job based 
on an actual or perceived impairment) show that the discriminating 
employer believed them incapable of performing not just the one job 
they had been denied, but also a broad range of jobs; and
    (C) In 2002, by requiring that the term ``substantially limited'' 
be applied in a very strict manner and that the term ``major life 
activity'' be understood as covering only activities that are of 
``central importance'' to most people's lives.
A. Mitigating Measures
    The Supreme Court, in a trio of cases decided in June 1999, ruled 
that mitigating measures--medication, prosthetics, hearing aids, other 
auxiliary devices, diet and exercise, or any other treatment--must be 
considered in determining whether an individual's impairment 
substantially limits a major life activity.\31\
---------------------------------------------------------------------------
    \31\ Sutton v. United Airlines, Inc., 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).
---------------------------------------------------------------------------
                       Sutton v. United Airlines
    In Sutton v. United Airlines, twin sisters, Karen Sutton and 
Kimberly Hinton, applied to United Airlines for jobs as commercial 
airline pilots. While they met United's age, education, and experience 
requirements, and had obtained all the appropriate pilot 
certifications, they did not meet United's minimum vision requirement 
of uncorrected vision of 20/100 or better. Ms. Sutton and Ms. Hinton 
were severely nearsighted (myopia), with uncorrected vision of 20/200 
in the right eye and 20/400 in the left eye. But with glasses or 
contact lenses, they could see as well as people without myopia. When 
United terminated their job interviews and refused to offer them pilot 
positions, Ms. Sutton and Ms. Hinton filed a claim under the ADA, 
alleging that United had discriminated against them on the basis of 
disability in violation of the ADA.\32\
---------------------------------------------------------------------------
    \32\ Sutton, 527 U.S. at 475-76.
---------------------------------------------------------------------------
    The Sutton case raised the question whether individuals who 
mitigate their impairments should be considered persons with 
disabilities under the ADA. The eight Federal Courts of Appeals that 
had addressed this issue prior to the Sutton case had agreed with 
guidance issued by the Equal Employment Opportunity Commission (EEOC) 
and the Department of Justice (DOJ), which explicitly stated that the 
mitigating effects of medication or devices on an impairment should not 
be taken into account in determining whether an individual's impairment 
substantially limits the individual in a major life activity.\33\ In 
Sutton, however, the Tenth Circuit (affirming the district court) 
concluded to the contrary, creating a split in the circuits. The 
Supreme Court resolved this split by affirming the Tenth Circuit's 
determination that mitigating measures should be taken into account in 
determining disability under the ADA.\34\
---------------------------------------------------------------------------
    \33\ Id. at 496-97 (Stevens, J., dissenting) (listing cases).
    \34\ Id. at 477, 495-96.
---------------------------------------------------------------------------
    Relying exclusively on a plain reading of the statute, the Supreme 
Court reasoned that three provisions of the ADA required it to conclude 
that plaintiffs should be viewed in their ``corrected state'' in 
determining whether their impairments substantially limited their major 
life activities. First, because ``the phrase `substantially limits' 
appears in the Act in the present indicative verb form,'' it was proper 
to read that language as ``requiring that a person be presently--not 
potentially or hypothetically--substantially limited in order to 
demonstrate a disability.'' \35\ Second, because the act defines 
disability ``with respect to an individual'' and requires that an 
impairment substantially limit ``the major life activities of such 
individual,'' the Court concluded that the law necessarily requires an 
``individualized inquiry.'' \36\ Indeed, the Court explained, the EEOC 
had emphasized the need for such an individualized assessment, and yet 
its ``directive that persons be judged in their uncorrected or 
unmitigated state runs directly counter to the individualized inquiry 
mandated by the ADA.'' \37\ Finally, since Congress had stated in its 
findings that there were 43 million people with disabilities, it was 
logically inconsistent to presume that Congress intended to cover the 
100 million people estimated to have vision impairments. Thus, the 
finding regarding the number of people covered under the law ``is 
evidence that the ADA's coverage is restricted to only those whose 
impairments are not mitigated by corrective measures.'' \38\
---------------------------------------------------------------------------
    \35\ Id. at 482.
    \36\ Id. at 483.
    \37\ Id.
    \38\ Id. at 487.
---------------------------------------------------------------------------
    The Court concluded that the ``[EEOC's and DOJ's] guidelines--that 
persons are to be evaluated in their hypothetical uncorrected state--is 
an impermissible interpretation of the ADA.'' \39\ The fact that the 
Senate Labor and Human Resources Committee Report, the House Judiciary 
Committee Report, and the House Education and Labor Committee Report 
had all offered the same interpretation as the agencies was irrelevant 
to the Court based on the following reasoning: [b]ecause we decide 
that, by its terms, the ADA cannot be read in this manner, we have no 
reason to consider the ADA's legislative history.\40\
---------------------------------------------------------------------------
    \39\ Id. at 482 (emphasis added).
    \40\ Id.
---------------------------------------------------------------------------
    Having concluded that three congressional committees, eight circuit 
courts, and two agencies had impermissibly interpreted the ADA by not 
considering mitigating measures, the Supreme Court held that Karen 
Sutton and Kimberly Hinton were not substantially limited in any major 
life activity and therefore were not covered by the ADA. Because Ms. 
Sutton and Ms. Hinton were found not to be ``disabled,'' the Court 
never reached the question whether they were qualified to perform the 
job or whether United's vision requirement was discriminatory.\41\
---------------------------------------------------------------------------
    \41\ Id. at 493-94.
---------------------------------------------------------------------------
                    Murphy v. United Parcel Service
    In Murphy v. United Parcel Service, the United Parcel Service (UPS) 
hired Vaughn L. Murphy as a mechanic. The job required Mr. Murphy to 
drive commercial motor vehicles. According to Department of 
Transportation (DOT) health requirements, drivers of commercial motor 
vehicles in interstate commerce must have ``no current clinical 
diagnosis of high blood pressure likely to interfere with his/her 
ability to operate a commercial vehicle safely.'' Mr. Murphy has had 
hypertension (high blood pressure) since he was 10 years old. With 
medication, however, ``he can function normally and can engage in 
activities that other persons normally do.'' \42\
---------------------------------------------------------------------------
    \42\ Murphy, 527 U.S. at 519-20.
---------------------------------------------------------------------------
    At the time UPS hired him, Mr. Murphy's blood pressure was too high 
for Mr. Murphy to qualify for a DOT health certification. However, due 
to an error, he was erroneously granted certification and he started 
working for UPS. About a month later, a UPS medical supervisor 
discovered the error while reviewing Mr. Murphy's medical files and 
requested that he have his blood pressure retested. Upon retesting, Mr. 
Murphy's blood pressure, at 160/102 and 164/104, was not low enough to 
qualify him for the 1-year certification that he had incorrectly been 
issued, but it was sufficient to qualify him for an optional temporary 
DOT health certification. UPS fired Mr. Murphy on the grounds that his 
blood pressure exceeded DOT's requirement and refused to allow him to 
attempt to obtain the optional temporary certification.\43\
---------------------------------------------------------------------------
    \43\ Id.
---------------------------------------------------------------------------
    Believing UPS had discriminated against him based on disability, 
Mr. Murphy brought a claim under the ADA. Both the district court and 
the Tenth Circuit Court of Appeals determined that since Mr. Murphy 
functioned normally with medication, his high blood pressure did not 
substantially limit him in any major life activity and thus was not 
covered by the ADA. The Supreme Court agreed, citing its holding in 
Sutton that the determination of disability should be made with 
reference to mitigating measures. Because Mr. Murphy was found not to 
be ``disabled'' for purposes of the ADA, the Court never reached the 
question whether Mr. Murphy was qualified to perform the job or whether 
UPS had discriminated against him by refusing to allow him to obtain a 
temporary DOT health certification.\44\
---------------------------------------------------------------------------
    \44\ Id. at 520-22, 525.
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                    Albertson's, Inc. v. Kirkingburg
    In August 1990, Albertson's, Inc., a grocery-store chain, hired 
Hallie Kirkingburg as a truck driver. Mr. Kirkingburg had more than 10 
years' driving experience and performed well on his road test for the 
job. Mr. Kirkingburg has an uncorrectable vision condition that 
involves weakened vision in one eye, so that he has in effect 
``monocular'' vision, or vision in only one eye. Over time, Mr. 
Kirkinburg had learned to compensate for the weakened vision in his 
left eye by making subconscious adjustments to the manner in which he 
senses depth and perceived peripheral objects in his right eye.\45\
---------------------------------------------------------------------------
    \45\ Albertson's, 527 U.S. at 558-59, 565.
---------------------------------------------------------------------------
    Before he started working, Albertson's required Kirkingburg to be 
examined by a doctor to see if he met Federal DOT vision standards for 
commercial truck drivers. Despite Kirkingburg's weakened vision in his 
left eye, the examining doctor erroneously certified that Kirkingburg 
met the DOT's basic vision standards. In December 1991, Mr. Kirkingburg 
took a leave of absence after injuring himself when he fell from the 
cab of his truck. Albertson's required returning employees to undergo a 
physical examination, which Mr. Kirkingburg did in November 1992. This 
time, the examining physician correctly assessed Kirkingburg's vision 
and found that his eyesight did not meet the basic DOT standards. Mr. 
Kirkingburg was told that he would have to obtain a waiver of the DOT's 
basic vision standards in order to be qualified to drive. DOT had a 
process for giving certification to applicants with deficient vision 
who had 3 years of recent experience driving a commercial vehicle with 
a clean driving record.\46\
---------------------------------------------------------------------------
    \46\ Id. at 559-60.
---------------------------------------------------------------------------
    Mr. Kirkingburg applied for a waiver, but while his application was 
pending, Albertson's fired him because he could not meet the basic DOT 
vision standard. Although Mr. Kirkingburg ultimately received a DOT 
waiver, Albertson's still refused to rehire him.\47\
---------------------------------------------------------------------------
    \47\ Id. at 560.
---------------------------------------------------------------------------
    Mr. Kirkingburg brought suit alleging that Albertson's violated the 
ADA by firing him. The district court ruled that Mr. Kirkingburg was 
not qualified for the job, and that Albertson's was not required, as a 
reasonable accommodation, to give him time to get a DOT waiver. The 
Ninth Circuit Court of Appeals reversed the district court's decision, 
holding that Albertson's could not use the DOT vision standard as the 
justification for its vision requirement and yet disregard the waiver 
program that was a legitimate part of the DOT program. Albertson also 
argued for the first time before the Ninth Circuit that Mr. Kirkingburg 
did not have a disability within the meaning of ADA. The Ninth Circuit 
rejected this argument, concluding that Mr. Kirkingburg had presented 
evidence that his vision was effectively monocular, and thus ``the 
manner in which he sees differs significantly from the manner in which 
most people see.'' \48\
---------------------------------------------------------------------------
    \48\ Id. at 561.
---------------------------------------------------------------------------
    The Supreme Court reversed the Ninth Circuit, concluding that it 
had been ``too quick to find a disability.'' \49\ According to the 
Court, the Ninth Circuit's determination that Mr. Kirkingburg's manner 
of seeing was ``different'' from others was insufficient to show 
disability. Instead, Mr. Kirkingburg's sight must be ``significantly 
restricted.'' Second, the Court determined that Sutton's mandate that 
courts consider mitigating measures includes ``measures undertaken, 
whether consciously or not, with the body's own systems.'' \50\ Thus, 
the Ninth Circuit should have considered the ability of Mr. 
Kirkingburg's brain to compensate for his monocular vision in 
determining whether he had a disability.\51\ Third, contrary to the 
individualized assessment required under the ADA, the Ninth Circuit 
failed to identify the extent of Mr. Kirkingburg's visual 
restrictions.\52\
---------------------------------------------------------------------------
    \49\ Id. at 564.
    \50\ Id. at 565-66.
    \51\ Id.
    \52\ As for Albertson's primary contention--that Mr. Kirkingburg 
was not qualified--the Court declared that Albertson's had both a 
``right'' and an ``unconditional obligation'' to follow the DOT 
commercial truck driver regulations. Id. at 570. The Supreme Court 
ruled that ``[t]he waiver program was simply an experiment with 
safety'' and ``did not modify the general visual acuity standards.'' 
Id. at 574. Since the DOT regulation did not require employers of 
commercial drivers to participate in the experimental waiver program, 
Albertson's was free to decline to do so. Id. at 577.
---------------------------------------------------------------------------
    The Supreme Court's requirement that courts consider mitigating 
measures creates an unintended paradox: people with serious health 
conditions like epilepsy and diabetes, who are fortunate enough to find 
treatment that makes them more capable and independent, and thus more 
able to work, find they are not protected by the ADA because the 
limitations arising from their impairments are not considered 
substantial enough. Ironically, the better a person manages his or her 
medical condition, the less likely that person will be protected from 
discrimination, even if an employer admits that he or she dismissed the 
person because of that person's (mitigated) condition.\53\
---------------------------------------------------------------------------
    \53\ See examples below in section IV.
---------------------------------------------------------------------------
B. Broad Range of Jobs Under ``Regarded as'' Prong
    In Sutton, the sisters had also argued that United ``regarded'' 
them as substantially limited in the major life activity of working 
and, therefore, that they should be covered under the third prong of 
the definition of disability. They contended that United's vision 
requirement ``substantially limited their ability to engage in the 
major life activity of working by precluding them from obtaining the 
job of global airline pilot.'' \54\
---------------------------------------------------------------------------
    \54\ Sutton, 527 at 490.
---------------------------------------------------------------------------
    The Supreme Court rejected that analysis by applying the EEOC's 
regulations concerning the major life activity of ``working'' to the 
third prong of the definition--despite EEOC's explicit guidance to the 
contrary.
    The Court ruled that:

          ``[w]hen the major life activity under consideration is that 
        of working, the statutory phrase `substantially limits' 
        requires, at a minimum, that plaintiffs allege they are unable 
        to work in a broad class of jobs.'' \55\

    \55\ Id. at 491.
---------------------------------------------------------------------------
    As support for this ruling, the Court quoted a sentence from the 
regulation interpreting the phrase ``substantially limits'': ``[t]he 
inability to perform a single, particular job does not constitute a 
substantial limitation in the major life activity of working.'' \56\ 
The Court thus concluded that because the sisters had failed to show 
that United regarded them as incapable of performing a broad range of 
jobs--beyond the single job of ``global airline pilot''--they were not 
regarded as being substantially limited in the major life activity of 
working.\57\
---------------------------------------------------------------------------
    \56\ Id. (quoting 29 CFR Sec. 1630.2(j)(3)(i)). The regulation 
states: (3) With respect to the major life activity of working--; (i) 
The term substantially limits means significantly restricted in the 
ability to perform either a class of jobs or a broad range of jobs in 
various classes as compared to the average person having comparable 
training, skills and abilities. The inability to perform a single, 
particular job does not constitute a substantial limitation in the 
major life activity of working.
    \57\ Id. at 493.
---------------------------------------------------------------------------
    In reaching its conclusion, the Court ignored the EEOC's guidance 
on how the major life activity of working was to be understood 
differently for purposes of the first and third prongs of the 
definition of disability. The EEOC had noted in its guidance that the 
major life activity of working should be considered under the first 
prong of the definition only in the rare situation in which an 
individual was not limited in any other major life activity.\58\ As 
noted above, in most cases decided under the Rehabilitation Act, 
individuals with a range of impairments had been held by the courts 
(without significant analysis) to be substantially limited in such 
major life activities as standing, lifting, breathing, walking, 
bending, seeing or hearing. Thus, according to the EEOC, the only time 
an individual should argue that he or she was limited in the major life 
activity of working under the first prong of the definition was when 
the person was not experiencing a limitation in any other life 
activity. In such circumstances, the EEOC regulations provided, the 
individual would have to prove that he or she was limited in a broad 
class of jobs, and not just in one job.\59\
---------------------------------------------------------------------------
    \58\ See 29 CFR pt. 1630, App. Sec. 1630.2(j) (``If an individual 
is not substantially limited with respect to any other major life 
activity, the individual's ability to perform the major life activity 
of working should be considered. If an individual is substantially 
limited in any other major life activity, no determination should be 
made as to whether the individual is substantially limited in 
working.'' ) (emphasis added.)
    \59\ Id.
---------------------------------------------------------------------------
    By contrast, the EEOC's guidance for ``Regarded as Substantially 
Limited in a Major Life Activity'' was quite different.\60\ In that 
section of the guidance, the EEOC explained as follows:
---------------------------------------------------------------------------
    \60\ See 29 CFR pt. 1630, App. Sec. 1630.2(l) (emphasis added).

          The rationale for the ``regarded as'' part of the definition 
        of disability was articulated by the Supreme Court in the 
        context of the Rehabilitation Act of 1973 in School Board of 
        Nassau County v. Arline, 480 U.S. 273 (1987). The Court noted 
        that, although an individual may have an impairment that does 
        not in fact substantially limit a major life activity, the 
        reaction of others may prove just as disabling. ``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.'' 480 U.S. at 283. . . .
          An individual rejected from a job because of the ``myths, 
        fears and stereotypes'' associated with disabilities would be 
        covered under this part of the definition of disability, 
        whether or not the employer's or other covered entity's 
        perception were shared by others in the field and whether or 
        not the individual's actual physical or mental condition would 
        be considered a disability under the first or second part of 
        this definition. . . .
          Therefore, if an individual can show that an employer or 
        other covered entity made an employment decision because of a 
        perception of disability based on ``myth, fear or stereotype,'' 
        the individual will satisfy the ``regarded as'' part of the 
        definition of disability. If the employer cannot articulate a 
        non-discriminatory reason for the employment action, an 
        inference that the employer is acting on the basis of ``myth, 
        fear or stereotype'' can be drawn.\61\
---------------------------------------------------------------------------
    \61\ Id. (emphasis added)

    Unfortunately, the Supreme Court ignored the logic of the EEOC's 
guidance and imported to the third prong of the definition a 
restriction that had made sense under the first prong of the 
definition, but made no sense at all under the third prong. The 
formulation enunciated by the Supreme Court now erects an almost 
impossible threshold for any individual seeking coverage under the 
third prong. The Court's approach requires that an individual 
essentially both divine and prove an employer's subjective state of 
mind. Not only must an individual demonstrate that the employer 
believed the individual had an impairment that prevented him or her 
from working for that employer in that job, the individual must also 
show that the employer thought that the impairment would prevent the 
individual from performing a broad class of jobs for other employers. 
As it is safe to assume that employers do not regularly consider the 
panoply of other jobs that prospective or current employees could or 
could not perform--and certainly do not often create direct evidence of 
such considerations--the individual's burden becomes essentially 
insurmountable.
    While the ``one-two punch'' of the Sutton trilogy--requiring 
consideration of mitigating measures under the first prong of the 
definition and requiring proof of being regarded as substantially 
limited in a range of jobs under the third prong of the definition--
began the slide toward non-coverage under the ADA for people with a 
range of physical and mental impairments, the Court made the situation 
worse 3 years later in another decision regarding the definition of 
disability.
C. Demanding Standard: Substantially Limits a Major Life Activity
    In 2002, the Supreme Court considered the case of Toyota Motor 
Manufacturing, Kentucky, Inc. v. Williams.\62\ In that case, Toyota 
Motor Manufacturing, Kentucky, Inc., hired Ella Williams to work on an 
engine assembly line at its car manufacturing plant in Georgetown, 
Kentucky. Soon after she began to work with pneumatic tools (tools 
using pressurized air), Ms. Williams developed carpal tunnel syndrome 
and tendonitis that caused pain in both of her hands, wrists, and arms. 
Williams' personal physician placed her on permanent work restrictions 
that precluded her from lifting more than 20 pounds, from frequent 
lifting of even lighter objects, from constant repetitive motions of 
her wrists or elbows, from performing overhead work, and from using 
vibratory or pneumatic tools.\63\
---------------------------------------------------------------------------
    \62\ 534 U.S. 184 (2002).
    \63\ Id. at 187-88.
---------------------------------------------------------------------------
    As a result, Toyota assigned Ms. Williams to various modified duty 
jobs. Eventually she was assigned to work as part of a Quality Control 
Inspection Operations team, where she routinely performed two of the 
four tasks of the team, both of which involved solely visual 
inspections. Ms. Williams satisfactorily performed these tasks for a 
period of 2 years.
    Toyota then decided that all members of the teams should rotate 
through all four of the Quality Control Inspection tasks. Ms. Williams 
was therefore ordered to apply highlight oil to several parts of cars 
as they passed on the assembly line, requiring her to hold her hands 
and arms up around her shoulder level for several hours at a time. As a 
result, she began experiencing pain in her neck and shoulders, and was 
diagnosed as having several medical conditions that cause inflammation 
and pain in the arms and shoulders.\64\ Toyota refused to make an 
exception to its policy and permit Williams to continue performing only 
the visual inspection tasks.
---------------------------------------------------------------------------
    \64\ Id. at 188-90.
---------------------------------------------------------------------------
    Ms. Williams filed an ADA claim, alleging that Toyota had failed to 
accommodate her disability. The district court ruled that Ms. Williams 
was not ``disabled'' under the ADA because her impairments did not 
substantially limit her in a major life activity. The Sixth Circuit 
Court of Appeals reversed, holding that Ms. Williams' impairments did 
substantially limit her in the major life activity of performing manual 
tasks. The Supreme Court reversed, holding that the Sixth Circuit had 
failed to apply the proper standard in determining whether Ms. Williams 
was disabled ``because it analyzed only a limited class of manual tasks 
and failed to ask whether [Ms. Williams'] impairments prevented or 
restricted her from performing tasks that are of central importance to 
most people's daily lives.'' \65\
---------------------------------------------------------------------------
    \65\ Id. at 187.
---------------------------------------------------------------------------
    The full adverse import of the Supreme Court's ruling, however, lay 
in its broad pronouncements regarding the proper interpretation of the 
words ``substantially limits'' and ``major life activities.'' The Court 
stated that, given the finding in the ADA that 43 million people have 
disabilities, these terms ``need to be interpreted strictly to create a 
demanding standard for qualifying as disabled.'' \66\ Indeed, ``[i]f 
Congress intended everyone with a physical impairment that precluded 
the performance of some isolated, unimportant, or particularly 
difficult manual task to qualify as disabled, the number would surely 
have been much higher.'' \67\
---------------------------------------------------------------------------
    \66\ Id. at 197.
    \67\ Id.
---------------------------------------------------------------------------
    According to the Court, `` `[s]ubstantially' in the phrase 
`substantially limits' suggests `considerable' or `to a large degree.' 
'' \68\ Therefore, the Court reasoned, ``the word `substantial' clearly 
precludes impairments that interfere in only a minor way with the 
performance of manual tasks from constituting disabilities'' under the 
ADA.\69\ The Court also stated that ``[m]ajor in the phrase `major life 
activities' means important,'' and so ``major life activities'' refers 
to ``those activities that are of central importance to daily life,'' 
including ``household chores, bathing, and brushing one's teeth.'' \70\
---------------------------------------------------------------------------
    \68\ Id. at 196.
    \69\ Id. at 197.
    \70\ Id. at 197, 201-02. Because Ms. Williams was able to brush her 
teeth and do laundry, she was therefore not substantially limited in 
the activities of central importance to the daily lives of most people. 
Id. at 202.
---------------------------------------------------------------------------
    As a result of this ruling, people alleging discrimination under 
the ADA must now show that their impairments prevent or severely 
restrict them from doing activities that are of central importance to 
most people's daily lives.\71\
---------------------------------------------------------------------------
    \71\ Id. at 197.
---------------------------------------------------------------------------
    Through these three aspects of interpretation, the Supreme Court 
and the lower courts have dramatically changed the meaning of 
``disability'' under the ADA over the past number of years so as to 
make it almost unrecognizable. Many of the people whom Congress 
intended to protect find that they are no longer ``disabled'' under the 
ADA; they are never even given the opportunity to show they can do the 
job and were treated unfairly because of their medical condition.
    The Supreme Court's narrow reading is in marked contrast to the 
cases that had been decided under the Rehabilitation Act, which 
Congress had before it as precedent when it enacted the ADA. In these 
cases, the courts had tended to decide questions of coverage easily and 
without extensive analysis.\72\ This narrow reading is likewise 
inconsistent with other civil rights statutes, such as the Civil Rights 
Act of 1964, upon which the ADA was modeled\73\ and which courts have 
also interpreted broadly.\74\ Indeed, under the Rehabilitation Act and 
Title VII of the Civil Rights Act, courts rarely tarried long on the 
question of whether the plaintiff in a case was ``really a handicapped 
individual,'' or ``really a woman,'' or ``really black.'' Instead, 
these cases tended to focus on the essential causation requirement: 
i.e., had the individual proven that the alleged discriminatory action 
had been taken because of his or her handicap, race, or gender?\75\
---------------------------------------------------------------------------
    \72\ Feldblum, Definition of Disability, supra note 19, at 128; see 
also Appendix A, for coverage of people under section 504 as compared 
to the ADA.
    \73\ 42 U.S.C. Sec. 12101 (2007) (``[U]nlike individuals who have 
experienced discrimination on the basis of race, color, sex, national 
origin, religion, or age, individuals who have experienced 
discrimination on the basis of disability have often had no legal 
recourse to redress such discrimination.'' ).
    \74\ See, e.g., Int'l Bhd. of Teamsters v. United States, 431 U.S. 
324, 381 (1977) (Marshall and Brennan, JJ., concurring in part and 
dissenting in part) (``Title VII is a remedial statute designed to 
eradicate certain invidious employment practices . . . [and], under 
longstanding principles of statutory construction, the Act should be 
given a liberal interpretation.'' (internal quotation marks and 
citation omitted)).
    \75\ Feldblum, Definition of Disability, supra note 19, at 106.
---------------------------------------------------------------------------
    But how did this happen? How did a statutory definition that 
Members of Congress and disability rights advocates felt would ensure 
protection for a broad range of individuals end up becoming the 
principal means of restricting coverage under the ADA?
    There is a range of academic literature on this question, including 
some to which I have contributed. But let me point out here simply one 
observation. From my reading of the cases, it seems to me that the 
instinctive understanding by many courts of the term ``disability'' is 
that it is synonymous with an ``inability to work or function,'' and 
concomitantly, that people with disabilities are thus necessarily 
viewed as significantly different from ``the rest of us.''
    This view of disability may have been influenced by the fact that 
most disability cases heard by courts prior to the ADA regarded claims 
for disability payments under Social Security. In those cases, an 
individual was required to demonstrate that he or she had a ``medically 
determinable physical or mental impairment'' that made him or her 
unable ``to engage in any substantial gainful activity''--i.e., that he 
or she was unable to work.\76\ Hence, it may have been difficult for 
courts to grasp that the congressional intent under the ADA was to 
capture a much broader range of individuals with physical and mental 
impairments than those intended to be covered under Social Security 
disability law.\77\
---------------------------------------------------------------------------
    \76\ 42 U.S.C. Sec. 423(d)(1)(A) (2007) (SSDI); 42 U.S.C. 
Sec. 1382c(a)(3)(A) (2007) (SSI).
    \77\ See Feldblum, Definition of Disability, supra n. 19, at 97, 
140.
---------------------------------------------------------------------------
    But a civil rights law is not a disability payment law. The goal of 
the ADA is to prohibit discrimination against a person because of his 
or her disability. A person does not have to be unable to work in order 
to face discrimination based on his or her impairment. On the contrary, 
people who are perfectly able to perform their jobs--sometimes thanks 
to the very medications or devices they use--are precisely the ones who 
may face discrimination because of myths, fears, ignorance, or 
stereotypes about their medical conditions.
    Similarly, in a civil rights context, requiring a person to meet an 
extremely high standard for qualifying as ``disabled'' is counter-
intuitive if an employer has taken an adverse action based on an 
individual's physical or mental impairment. Requiring the person to 
reveal private, highly personal, and potentially embarrassing facts to 
employers and judges about the various ways the individual's impairment 
impacts daily living, simply and only to demonstrate the severity of 
the impairment, is completely unnecessary to deciding whether unjust 
discrimination has occurred.\78\
---------------------------------------------------------------------------
    \78\ As I also note in my academic article, there are other 
elements that are in play here. For example, ``EEOC regulations that 
emphasize individualized assessments of the impact of impairments on 
particular individuals, a sophisticated management bar trained in 
seminars to carefully parse the statutory text of the definition, and 
finally, the terms of the definition itself, have all resulted in a 
reading of the ADA that has radically reduced the number of people who 
can claim coverage under the law.'' Feldblum, Definition of Disability, 
supra n. 19, at 140; see also id. at 152 (``[W]hile individualized 
assessments are . . . critical in determining whether an individual 
with a disability is qualified for a job (including whether a 
reasonable accommodation is due to an individual in a particular case), 
the idea that an individualized assessment would be used to determine 
whether one person with epilepsy would be covered under the law, while 
another person with epilepsy would not, was completely foreign both to 
section 504 jurisprudence and to the spirit of the ADA as envisioned by 
its advocates. The words of the ADA, however, can lend themselves to 
such an interpretation, and the fact that the EEOC's guidance expressly 
endorsed such an interpretation has cemented that approach in the 
courts.'' ).
---------------------------------------------------------------------------
    Finally, it is inconsistent with a civil rights law to excuse an 
employer's behavior simply because other employers may not also act in 
a similar discriminatory fashion. As the court made clear in Arline, if 
an employer fires an individual expressly because of an impairment, 
that is sufficient to establish coverage for the individual under the 
``regarded as'' prong of the definition of disability. Of course, an 
action of this nature would not suffice to qualify an individual for 
disability payments. But it certainly is sufficient to raise a viable 
claim of discrimination based on that impairment, regardless of whether 
other employers would have discriminated against the individual as 
well.
      iv. the real life impact of shrinking coverage under the ada
    Regardless of what one believes about the original intent of 
Congress in passing the ADA, the relevant question for Congress today 
is whether people with a range of physical and mental impairments are 
being treated fairly--today. Consider the following real-life impacts 
of the Supreme Court's ruling with regard to mitigating measures:

     Stephen Orr, a pharmacist in Nebraska, was fired from his 
job at Wal-Mart because he needed to take a half-hour uninterrupted 
lunch break to manage his diabetes. When Mr. Orr challenged his firing 
under the ADA, Wal-Mart argued that since Mr. Orr did so well managing 
his diabetes with insulin and diet, he was not ``disabled'' under the 
ADA. The courts agreed. Although Wal-Mart considered Mr. Orr ``too 
disabled'' to work for Wal-Mart, he was not disabled ``enough'' to 
challenge his firing under the ADA.\79\
---------------------------------------------------------------------------
    \79\ Orr v. Wal-Mart Stores, Inc., 297 F.3d 720 (8th Cir. 2002).
---------------------------------------------------------------------------
     James Todd, a shelf-stocking clerk at a sporting goods 
store in Texas, was fired from his job a few months after experiencing 
a seizure at work. Mr. Todd challenged his firing under the ADA, but 
the district court never reached the question of whether Mr. Todd had 
been fired because of his epilepsy. Instead, the court concluded that 
since Mr. Todd's epilepsy was otherwise well-managed with anti-seizure 
medication, he was not disabled ``enough'' to challenge his firing 
under the ADA.\80\
---------------------------------------------------------------------------
    \80\ Todd v. Academy Corp., 57 F. Supp. 2d 448 (S.D. Tex. 1999).
---------------------------------------------------------------------------
     Allen Epstein, the CEO of an insurance brokerage firm, was 
demoted from his job after being hospitalized because of heart disease. 
He was later fired shortly after telling his employer he had diabetes. 
Mr. Epstein brought a claim under the ADA, alleging that his employer 
had discriminated against him because of disability. The court held 
that because his heart disease and diabetes were well-managed with 
medication, he was not disabled ``enough'' to challenge his firing 
under the ADA.\81\
---------------------------------------------------------------------------
    \81\ Epstein v. Kalvin-Miller International, Inc., 100 F. Supp. 2d 
222 (S.D.N.Y. 2000).
---------------------------------------------------------------------------
     Ruth Eckhaus, a railroad employee who uses a hearing aid, 
was fired by her employer who told her that he ``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.'' Ms. Eckhaus brought 
a claim under the ADA, alleging that she was discriminated against 
based on her hearing impairment. The court concluded that since her 
hearing aid helped correct her hearing impairment, Ms. Eckhaus was not 
disabled ``enough'' to challenge discrimination based on that 
impairment.\82\
---------------------------------------------------------------------------
    \82\ Eckhaus v. Consolidated Rail Corp., No. Civ. 00-5748(WGB), 
2003 WL 23205042 (D.N.J. Dec. 24, 2003)
---------------------------------------------------------------------------
     Michael Schriner, a salesperson who developed major 
depression and PTSD after discovering that his minor children had been 
abused, was fired from his job for failing to attend a training 
session. Believing he was fired because of his depression and PTSD, Mr. 
Schriner brought a claim under the ADA. But the court never addressed 
whether his disability was the reason he was fired. Instead, that court 
concluded that because Mr. Schriner did so well managing his condition 
with medication, he was not disabled ``enough'' to be protected by the 
ADA.\83\
---------------------------------------------------------------------------
    \83\ Schriner v. Sysco Food Serv., No. Civ. 1CV032122, 2005 WL 
1498497 (M.D. Pa. June 23, 2005).
---------------------------------------------------------------------------
     Michael McMullin, a career law enforcement officer from 
Wyoming, was fired from his job as a court security officer because an 
examining physician determined that his clinical depression and use of 
medication disqualified him from his job. When Mr. McMullin challenged 
his firing under the ADA, his employer argued that Mr. McMullin was not 
``disabled'' under the ADA because he had successfully managed his 
condition with medication for over 15 years. The court agreed. Even 
though Mr. McMullin's employer had fired him because of his use of 
medication, the court ruled that he was not disabled ``enough'' to 
challenge the discrimination under the ADA. According to the court, 
``[t]his is one of the rare, but not unheard of, cases in which many of 
the plaintiff's claims are favored by equity, but foreclosed by the 
law.'' \84\
---------------------------------------------------------------------------
    \84\ McMullin v. Ashcroft, 337 F. Supp. 2d 1281 (D. Wyo. 2004).

    Is this what Congress believes the law should be today?
    Or consider the impact of the Supreme Court's ruling, that to be 
covered under the third prong of the definition, an individual must 
prove that his or her employer thought that he or she was incapable of 
performing a broad range of jobs:

     Rhua Dale Williams, an offshore crane operator with 20 
years' experience, was refused a crane operator job because of his two 
prior back surgeries. Believing the company had regarded him as 
disabled, Mr. Williams filed a claim under the ADA. The court held that 
because Mr. Williams had shown that the company believed him incapable 
of performing only the job of offshore crane operator--and not the job 
of crane operator more generally--he was not regarded as incapable of 
performing a broad range of jobs. As a result, Mr. Williams was not 
covered by the ADA.\85\
---------------------------------------------------------------------------
    \85\ E.E.O.C. v. HBH Inc., No. Civ.A. 98-2632, 1999 WL 1138533 
(E.D.La. Dec. 9, 1999).
---------------------------------------------------------------------------
     Hundreds of applicants for truck-driving positions were 
refused jobs at a motor carrier company solely because of a blanket 
exclusionary policy that prohibited the hiring of people who used 
certain prescription medications. The applicants alleged that the 
company had regarded them as disabled. The courts disagreed, holding 
that since the applicants had shown only that the company believed them 
incapable of working as truck drivers for the company--and not as truck 
drivers in general--they were not regarded as incapable of performing a 
broad range of jobs. As a result, the applicants were not covered by 
the ADA.\86\
---------------------------------------------------------------------------
    \86\ E.E.O.C. v. J.B. Hunt Transport, Inc., 321 F.3d 69 (2d Cir. 
2003).

    Is this what Congress believes the law should be today?
    Finally, consider the following real-life impacts of the Supreme 
Court's ruling that the terms ``substantially limits'' and ``major life 
activity'' must be interpreted strictly:

     Carey McClure, an electrician with 20 years of experience, 
was offered a job at a General Motors' (GM) assembly plant pending 
completion of a pre-employment physical exam. When the examining 
physician saw that Mr. McClure could only lift his arms to shoulder 
level, Mr. McClure explained that he had muscular dystrophy, and that 
he could do overhead work by using a ladder, as electricians often do. 
The physician revoked the job offer, and Mr. McClure brought a claim 
under the ADA. Even though GM revoked Mr. McClure's job offer because 
of limitations resulting from his muscular dystrophy, GM argued in 
court that Mr. McClure did not have a ``disability'' and was not 
protected by the ADA. The courts agreed. According to the Fifth Circuit 
Court of Appeals:

          [Mr. McClure] has adapted how he bathes, combs his hair, 
        brushes his teeth, dresses, eats, and performs manual tasks by 
        supporting one arm with the other, repositioning his body, or 
        using a step-stool or ladder. . . . [Mr. McClure's] ability to 
        overcome the obstacles that life has placed in his path is 
        admirable. In light of this ability, however, we cannot say 
        that the record supports the conclusion that his impairment 
        substantially limits his ability to engage in one or more major 
        life activities.\87\
---------------------------------------------------------------------------
    \87\ McClure v. General Motors Corp., 75 Fed. Appx. 983, 2003 WL 
21766539 (5th Cir. 2003).

     Vanessa Turpin, an auto packaging machine operator with 
epilepsy, resigned after her employer required her to take a work-shift 
that would have worsened her seizures. Ms. Turpin challenged her 
employer's actions by filing a claim under the ADA, but the court never 
decided whether these actions were discriminatory. The court held that 
even though Vanessa Turpin experienced nighttime seizures characterized 
by ``shaking, kicking, salivating and, on at least one occasion, 
bedwetting,'' which caused her to ``wake up with bruises on her arms 
and legs,'' Vanessa was not ``disabled'' because ``[m]any individuals 
fail to receive a full night sleep.'' The court further held that 
Vanessa's daytime seizures, which ``normally lasted a couple of 
minutes'' and which caused her to ``bec[o]me unaware of and 
unresponsive to her surroundings'' and ``to suffer memory loss,'' did 
not render her ``disabled'' because ``many other adults in the general 
population suffer from a few incidents of forgetfulness a week.'' \88\
---------------------------------------------------------------------------
    \88\ Equal Employment Opportunity Comm'n v. Sara Lee Corp., 237 
F.3d 349 (4th Cir. 2001).
---------------------------------------------------------------------------
     Zelma Williams is a right-hand dominant person whose right 
arm was amputated below the elbow. Despite an exemplary work record, 
Ms. Williams was not among those rehired after the company for which 
she worked was sold. Ms. Williams brought a claim under the ADA, but 
the court never decided whether her employer discriminated against her 
because of disability. Instead, the court held that Ms. Williams was 
not ``disabled'' because she was not ``prevented or severely restricted 
from doing activities that are of central importance to most people's 
daily's lives . . . [like] household chores, bathing oneself, and 
brushing one's teeth.'' According to the court, Ms. Williams' amputated 
arm was only a ``physical impairment, nothing more.'' \89\
---------------------------------------------------------------------------
    \89\ Williams v. Cars Collision Center, LLC, No. 06 C 2105 (N.D. 
Ill. July 9, 2007).
---------------------------------------------------------------------------
     Christopher Phillips, a store maintenance worker with a 
traumatic brain injury, brought a claim under the ADA after he was 
fired from his job. Although Mr. Phillips' brain injury caused a 4-
month coma, weeks of rehabilitation, an inability to work for 14 years, 
blurred vision, dizziness, spasms in his arms and hands, slowed 
learning, headaches, poor coordination, and slowed speech, the court 
held that ``this evidence does not establish that [Mr. Phillips] is 
substantially limited in the major life activities of learning, 
speaking, seeing, performing manual tasks, eating or drinking.'' 
Therefore, Mr. Phillips was not ``disabled'' under the ADA.\90\
---------------------------------------------------------------------------
    \90\ Phillips v. Wal-Mart Stores, Inc., 78 F. Supp. 2d 1274 (S.D. 
Ala. 1999).
---------------------------------------------------------------------------
     Robert Tockes, a truck driver who had limited use of one 
hand as a result of an injury he sustained in the Army, was fired from 
his job and was told by his employer that ``he was being fired because 
of his disability, he was crippled, and the company was at fault for 
having hired a handicapped person.'' Mr. Tockes brought a claim under 
the ADA, but the court never addressed whether he had been 
discriminated against. Instead, the court concluded that he was not 
protected by the ADA because he was not ``disabled.'' While, 
``[o]bviously [the employer] knew [Mr. Tockes] had a disability,'' the 
court stated, that ``does not mean that it thought him so far disabled 
as to fall within the restrictive meaning the ADA assigns to the 
term''.\91\
---------------------------------------------------------------------------
    \91\ Tockes v. Air-Land Transport Services, Inc., 343 F.3d 895 (7th 
Cir. 2003).
---------------------------------------------------------------------------
     Mary Ann Pimental, a registered nurse with stage III 
breast cancer, took time from work to undergo a mastectomy, 
chemotherapy, and radiation therapy. While Mary Ann was hospitalized 
and receiving treatment for cancer, the hospital reorganized its 
management team and eliminated Mary Ann's position. When the hospital 
refused to rehire her into an equivalent position, Ms. Pimental brought 
a claim under the ADA. But the court never decided whether Ms. 
Pimental's breast cancer played a role in the hospital's hiring 
decision. Instead, the court agreed with the hospital that ``the most 
substantial side effects [of Ms. Pimental's breast cancer and 
treatment] were (relatively speaking) short-lived'' and therefore 
``they did not have a substantial and lasting effect on the major 
activities of her daily life.'' Because Ms. Pimental failed to show she 
was limited by the breast cancer on a ``permanent or long-term basis,'' 
she was held to be not ``disabled'' and therefore not protected by the 
ADA. Sadly, Ms. Pimental died of breast cancer 4 months after the court 
issued its decision.\92\
---------------------------------------------------------------------------
    \92\ Pimental v. Dartmouth-Hitchcock Clinic, 236 F. Supp. 2d 177 
(D.N.H. 2002).
---------------------------------------------------------------------------
     Daniel Didier, a frozen food delivery manager with a 
permanently injured arm, was fired from his job because of limitations 
resulting from his injury. Believing he had been discriminated against 
based on disability, Mr. Didier challenged his firing under the ADA. 
Despite firing Mr. Didier because of his physical limitations, his 
employer argued in court that his limitations did not rise to the level 
of ``disability'' under the ADA. The court agreed. Even though Mr. 
Didier ``does have some medically imposed restrictions,'' the court 
stated, ``he has not met his burden of showing that the extent of his 
limitations due to his impairment are `substantial.' '' According to 
the court, since Mr. Didier was able to perform activities of daily 
living, ``such as shaving and brushing his teeth, with his left hand . 
. . he does not have a disability as defined under the first prong of 
the ADA.'' \93\
---------------------------------------------------------------------------
    \93\ Didier v. Schwan Food Co., 387 F. Supp. 2d 987 (W.D. Ark. 
2005).
---------------------------------------------------------------------------
     Charles Littleton, a 29-year-old man who was diagnosed 
with ``mental retardation'' as a young child, applied for a cart-pusher 
position at Wal-Mart. When he got to the interview, Wal-Mart refused to 
allow his job coach into the interview as previously agreed upon. The 
interview did not go well for Mr. Littleton and he did not get the job. 
Believing he had been discriminated against because of his disability, 
Mr. Littleton brought a claim under the ADA. But the courts never 
determined whether Wal-Mart discriminated against him because of his 
disability. Instead, the courts simply ruled that Mr. Littleton was not 
``disabled'' under the ADA. While acknowledging that Mr. Littleton ``is 
somewhat limited in his ability to learn because of his mental 
retardation,'' the Eleventh Circuit Court of Appeals concluded that he 
was not substantially limited in his ability to learn because he could 
read. In addition, the court concluded that while ``[i]t is unclear 
whether thinking, communicating, and social interaction are `major life 
activities' under the ADA,'' Mr. Littleton was not substantially 
limited in these activities because he was able to drive a car and 
communicate with words.\94\
---------------------------------------------------------------------------
    \94\ Littleton v. Wal-Mart Stores, Inc., 231 Fed. Appx. 874 (11th 
Cir. 2007).

    Is this what Congress thinks the law should be today?
    Many of us believe the ADA today is not doing the job it was 
intended to do. We believe the technical words of the ADA have been 
misused and misapplied by the courts to exclude people who deserve 
coverage under the law.\95\
---------------------------------------------------------------------------
    \95\ See Feldblum, Definition of Disability, supra note 19, at 93 
(``That decision [Sutton] threw into question coverage for thousands of 
individuals with impairments whom I, and other advocates who worked on 
the ADA, presumed Congress had intended to cover when it passed the 
ADA.'' ); see also Claudia Center and Andrew J. Imparato, Development 
in Disability Rights: Redefining ``Disability'' Discrimination: A 
Proposal to Restore Civil Rights Protections for All Workers, 14 Stan. 
L. & Pol'y Rev 321, 323 (2003) (``In light of the unwillingness of the 
U.S. Supreme Court and the lower Federal courts to interpret the ADA's 
definition of disability in an inclusive manner, consistent with the 
intent of the law's drafters in Congress, it is time to rewrite the 
ADA's definition of disability and restore civil rights protections to 
the millions of Americans who experience disability-based 
discrimination.'' ); Robert Burgdorf, ``Substantially Limited'' 
Protection from Disability Discrimination: The Special Treatment Model 
and Misconstructions of the Definition of Disability, 42 Vill. L. Rev. 
409, 561 (1997) (``The restrictive interpretations of statutory 
protection under the ADA and Rehabilitation Act, however, have 
engendered a situation in which many cases are decided solely by 
looking at the characteristics of the plaintiff.'' ).
---------------------------------------------------------------------------
    The National Council on Disability, relying upon the expertise of a 
range of lawyers provided over a period of time, has suggested that the 
best way to fix the problems encountered in the courts is to change the 
language of the ADA so that it forces the court to focus on the reason 
an adverse action has been taken, rather than on the specifics of a 
person's physical or mental condition.\96\ In this way, litigation 
under the ADA would mirror litigation under Title VII of the Civil 
Rights Act--in which a plaintiff must prove that discrimination 
occurred because of race, sex, religion, or national origin, but is not 
required to get into the specifics of his or her race, sex, religion, 
or national origin.
---------------------------------------------------------------------------
    \96\ National Council on Disabilities, Righting the ADA, Executive 
Summary, 13 (2004), available at http://www.ncd.gov/newsroom/
publications/2004/righting_ada.htm.
---------------------------------------------------------------------------
    One can achieve this result with two basic changes to the language 
of the ADA. First, the definition of ``disability'' should be a 
``physical or mental impairment,'' with those terms defined as they 
have been for years by the regulatory agencies. While this obviously 
changes the words of the original ADA, it does not change the intent of 
Congress in terms of coverage under the law. As I explain above, it was 
understood and expected during passage of the ADA that a person with 
any type of impairment, even a minor one, would be covered under the 
third prong of the definition if the person could prove that he or she 
had been subjected to adverse action because of that physical or mental 
impairment. Indeed, it was based on this assumption of broad coverage 
that Congress chose to go with the long-standing definition of Section 
504 of the Rehabilitation Act, rather than with the new definition 
offered by the National Council of Disability that had been 
incorporated into the first version of the ADA.\97\ The rejection of 
that new definition was not because Congress thought the definition was 
too broad. Rather, it was because Congress agreed that such breadth was 
necessary--and believed it was already encompassed under the third 
prong of the definition.\98\
---------------------------------------------------------------------------
    \97\ S. 2345, 100th Cong., 2d Sess., 134 Cong. Rec. S5089 (daily 
ed. Apr. 28, 1988).
    \98\ See Feldblum, Definition of Disability, supra note 19, at 126-
129.
---------------------------------------------------------------------------
    Changing the ADA in this manner would bring it into conformity with 
Title VII of the Civil Rights Act of 1964. Under that law, every person 
in this country is covered, since every person has a race, a sex, a 
religion (or lack of a religion), and a national origin. And any 
individual may believe that he or she has been discriminated against 
because of his or her race, sex, religion, or national origin. But 
under our system of law, an individual claiming discrimination on any 
of these grounds must prove that the discrimination occurred because of 
the prohibited characteristic and could not be explained based on a 
legitimate non-discriminatory reason. This same body of law would apply 
to individuals arguing discrimination on the basis of disability.
    Second, the ADA should be modified so that the employment section 
prohibits discrimination ``on the basis of disability,'' rather than 
the existing formulation that prohibits discrimination ``against a 
qualified individual with a disability.'' This change would again bring 
the ADA into conformity with Title VII of the Civil Rights Act of 1964, 
which similarly prohibits discrimination ``on the basis of '' race, 
sex, religion, and national origin. This formulation ensures that 
courts will begin their analysis by focusing on whether a person has 
proven that a challenged discriminatory action was taken because of a 
personal characteristic--in this case, disability--and not on whether 
the person has proven the existence of various complicated elements of 
the characteristic.\99\
---------------------------------------------------------------------------
    \99\ Such a change would not change the right of an employer to 
defend a claimed discriminatory action on the grounds that a particular 
applicant or employee does not have the requisite qualifications for 
the job. The four-part test set forth by the Supreme Court in McDonnell 
Douglas Corp. v. Green, 411 U.S. 792 (1973) for a plaintiff 's prima 
facie case of discrimination under title VII would continue to apply to 
individuals bringing cases under the ADA. Under this test, a plaintiff 
must present evidence that he or she is a member of a class protected 
by the law; that he or she was subjected to an adverse employment 
action; that the employer treated similarly situated employees who were 
not members of the protected class more favorably; and that the 
plaintiff was qualified to perform the required functions of the job. 
Id. at 802. Thus, a basic level of qualification is already necessary 
to meet the threshold of establishing a prima facie case under title 
VII and would apply as well under the ADA. To the extent that an 
employer wishes to impose affirmatively a qualification standard that 
will screen out, or will tend to screen out, persons with disabilities, 
the ADA permits an employer to do so if such standards are job-related 
and consistent with business necessity. See 42 U.S.C. Sec. 12112(b)(6) 
and Sec. 12113(a) (2007). This defense on the part of the employer 
would not be changed by the suggested changes to the general employment 
section.
---------------------------------------------------------------------------
    S. 1881, the Americans with Disabilities Act Restoration Act, would 
make these changes in the law. I believe this bill is an appropriate 
and justified response by Congress to the judicial narrowing of 
coverage under the ADA and would provide the essential protection 
needed by those who experience discrimination in our country today.
    Thank you.
                                 ______
                                 
APPENDIX A.--People Covered Under Section 504 of the Rehabilitation Act 
                  vs. People Not Covered Under the ADA
    When writing the Americans with Disabilities Act (ADA), Congress 
borrowed the definition of ``disability'' from the Rehabilitation Act 
of 1973. (Originally noted as ``handicap.'' \1\) For 15 years, the 
courts had generously interpreted this definition to cover a wide range 
of physical and mental impairments. Below is a sampling of people that 
courts held were ``disabled'' under the Rehabilitation Act based on 
their impairments. The courts tended to decide questions of coverage 
quickly and easily, without extensive analysis.

    \1\ What the court terms ``mental retardation.''
---------------------------------------------------------------------------
    Epilepsy.--Person with epilepsy ``disabled'': Reynolds v. Brock, 
9th Cir. 1987.
    Diabetes.--Person with diabetes ``disabled'': Bentivegna v. U.S. 
Dep't of Labor, 9th Cir. 1982.
    Intellectual & Developmental Disabilities*.--Person with 
intellectual and developmental disabilities ``disabled'': Flowers v. 
Webb, E.D.N.Y. 1983.
    Bipolar Disorder.--Person with bipolar disorder ``disabled'': 
Gardner v. Morris, 8th Cir. 1985.
    Multiple Sclerosis.--Person with multiple sclerosis ``disabled'': 
Pushkin v. Regents of Univ. of Colorado, 10th Cir. 1981.
    Hard of Hearing.--Person who used hearing aid ``disabled'': 
Strathie v. Dep't of Transp., 3rd Cir. 1983.
    Vision in Only One Eye.--Person with vision in only one eye 
``disabled'': Kampmeier v. Nyquist, 2d Cir. 1977.
    Post-Traumatic Stress Disorder.--Person with PTSD ``disabled'': 
Schmidt v. Bell, E.D. Pa. 1983.
    Heart Disease.--Person with heart disease ``disabled'': Bey v. 
Bolger, E.D. Pa. 1982.
    Depression.--Person with depression ``disabled'': Pridemore v. 
Rural Legal Aid Soc'y, S.D. Ohio 1985.
    HIV Infection.--Person with HIV infection ``disabled'': Local 1812, 
Am. Fed'n of Gov't Employees v. U.S., D.D.C. 1987.
    Asthma.--Person with asthma ``disabled'': Carter v. Tisch, 4th Cir. 
1987.
    Asbestosis.--Person with asbestosis ``disabled'': Fynes v. 
Weinberger, E.D. Pa. 1985.
    Back Injury.--Person with back injury ``disabled'': Schuett Inv. 
Co. v. Anderson, Minn. Ct. App. 1986.
                    People Not Covered Under the ADA
    Congress expected the definition of ``disability'' would be 
interpreted the same way under the ADA as it had been interpreted under 
the Rehabilitation Act. But instead of following Congress' 
expectations, the courts have read the definition in a strict and 
constrained way. Below is a sampling of people that courts have 
considered to be not ``disabled'' under the ADA. In contrast to cases 
decided under the Rehabilitation Act, these courts have often devoted 
pages of contorted analysis to arrive at their conclusions.

    Epilepsy.--Person with epilepsy not ``disabled'': Todd v. Academy 
Corp., S.D. Tex. 1999.
    Diabetes.--Person with diabetes not ``disabled'': Orr v. Wal-Mart 
Stores, Inc., 8th Cir. 2002.
    Intellectual & Developmental Disabilities*.--Person with 
intellectual and developmental disabilities not ``disabled'': Littleton 
v. Wal-Mart Stores, Inc., 11th Cir. 2007.
---------------------------------------------------------------------------
    * What the court terms ``mental retardation.''
---------------------------------------------------------------------------
    Bipolar Disorder.--Person with bipolar disorder not ``disabled'': 
Johnson v. North Carolina Dep't of Health and Human Servs., M.D.N.C. 
2006.
    Multiple Sclerosis.--Person with multiple sclerosis not 
``disabled'': Sorensen v. University of Utah Hosp., 10th Cir. 1999.
    Hard of Hearing.--Person who used hearing aid not ``disabled'': 
Eckhaus v. Consolidated Rail Corp., D.N.J. 2003.
    Vision in Only One Eye.--Person with vision in one eye not 
``disabled'': Albertson's, Inc. v. Kirkingburg, U.S. 1999.
    Post-Traumatic Stress Disorder.--Person with PTSD not ``disabled'': 
Rohan v. Networks Presentations LLC, 4th Cir. 2004.
    Heart Disease.--Person with heart disease not ``disabled'': Epstein 
v. Kalvin-
Miller Intern., Inc., S.D.N.Y. 2000.
    Depression.--Person with depression not ``disabled'': McMullin v. 
Ashcroft, D. Wyo. 2004.
    HIV Infection.--Person with HIV infection not ``disabled'': Cruz 
Carrillo v. AMR Eagle, Inc., D.P.R. 2001.
    Asthma.--Person with asthma not ``disabled'': Tangires v. Johns 
Hopkins Hosp., D. Md. 2000.
    Asbestosis.--Person with asbestosis not ``disabled'': Robinson v. 
Global Marine Drilling Co., 5th Cir. 1996.
    Back Injury.--Person with back injury not ``disabled'': Wood v. 
Crown Redi-Mix, Inc., 8th Cir. 2003.
       Background Info for People Covered Under Rehab Act and ADA
    The Rehabilitation Act originally referred to people covered under 
the act as ``handicapped'' individuals. This changed in 1992, when the 
act was amended to cover individuals with ``disabilities.'' Pub. L. No. 
102-569.
    A statement of Congress' expectations with regard to the definition 
of ``disability'' under the ADA is nicely captured in: Steny H. Hoyer, 
Not Exactly What We Intended Justice O'Connor, Wash. Post, Jan. 20, 
2002, at B01.
       people covered under section 504 of the rehabilitation act
    Epilepsy: Reynolds v. Brock, 815 F.2d 571, 574 (9th Cir. 1987).
    Diabetes: Bentivegna v. U.S. Dep't of Labor, 694 F.2d 619, 621 (9th 
Cir. 1982).
    Intellectual & Developmental Disabilities (``mental retardation''): 
Flowers v. Webb, 575 F. Supp. 1450, 1456 (E. D. N.Y. 1983).
    Bipolar Disorder: Gardner v. Morris, 752 F.2d 1271, 1280 (8th Cir. 
1985).
    Multiple Sclerosis: Pushkin v. Regents of Univ. of Colorado, 658 
F.2d 1372, 1377, 1387 (10th Cir. 1981).
    Hard of Hearing: Strathie v. Dep't of Transp., 716 F.2d 227, 230 
(3rd Cir. 1983).
    Vision in Only One Eye: Kampmeier v. Nyquist, 553 F.2d 296, 299 n.7 
(2d Cir. 1977).
    Post-Traumatic Stress Disorder: Schmidt v. Bell, No. 82-1758, 1983 
WL 631, at *10 (E.D. Pa. 1983).
    Heart Disease: Bey v. Bolger, 540 F. Supp. 910, 927 (E.D. Pa. 
1982).
    Depression: Pridemore v. Rural Legal Aid Soc'y, 625 F. Supp. 1180, 
1185-86 (S.D. Ohio 1985).
    HIV Infection: Local 1812, Am. Fed'n of Gov't Employees v. U.S., 
662 F. Supp. 50, 54 (D.D.C. 1987).
    Asthma: Carter v. Tisch, 822 F.2d 465, 466 (4th Cir. 1987).
    Asbestosis: Fynes v. Weinberger, 677 F. Supp. 315, 321 (E.D. Pa. 
1985).
    Back Injury: Schuett Inv. Co. v. Anderson, 386 N.W. 2d 249, 253 
(Minn. Ct. App. 1986).
                    people not covered under the ada
    Epilepsy: Todd v. Academy Corp., 57 F. Supp. 2d 448, 452-54 (S.D. 
Tex. 1999).
    Diabetes: Orr v. Wal-Mart Stores, Inc., 297 F.3d 720, 724-25 (8th 
Cir. 2002).
    Intellectual & Developmental Disabilities (``mental retardation''): 
Littleton v. Wal-Mart Stores, Inc., No. 05-12770, 2007 WL 1379986, at 
*2-4 (11th Cir. 2007).
    Bipolar Disorder: Johnson v. North Carolina Dep't of Health and 
Human Servs., 454 F. Supp. 2d 467, 473-74 (M.D.N.C. 2006).
    Multiple Sclerosis: Sorensen v. University of Utah Hosp., 194 F.3d 
1084, 1087-89 (10th Cir. 1999).
    Hard of Hearing: Eckhaus v. Consolidated Rail Corp., No. Civ. 00-
5748 (WGB), 2003 WL 23205042, at *8-10 (D.N.J. 2003).
    Vision in Only One Eye: Albertson's, Inc. v. Kirkingburg, 527 U.S. 
555, 562-67 (1999).
    Post-Traumatic Stress Disorder: Rohan v. Networks Presentations 
LLC, 375 F.3d 266, 273-78 (4th Cir. 2004).
    Heart Disease: Epstein v. Kalvin-Miller Intern., Inc., 100 F. Supp. 
2d 222, 224-29 (S.D.N.Y. 2000).
    Depression: McMullin v. Ashcroft, 337 F. Supp. 2d 1281, 1294-99 (D. 
Wyo. 2004).
    HIV Infection: Cruz Carrillo v. AMR Eagle, Inc., 148 F. Supp. 2d 
142, 144-46 (D.P.R. 2001).
    Asthma: Tangires v. Johns Hopkins Hosp., 79 F. Supp. 2d 587, 594-96 
(D. Md. 2000).
    Asbestosis: Robinson v. Global Marine Drilling Co., 101 F.3d 35, 
36-37 (5th Cir. 1996).
    Back Injury: Wood v. Crown Redi-Mix, Inc., 339 F.3d 682, 685-86 
(8th Cir. 2003).
                                 ______
                                 
 APPENDIX B.--The Effect of the Supreme Court's Decisions on Americans 
                           With Disabilities
    The following stories illustrate many of the problems that the 
Supreme Court has created for people with disabilities who seek 
protection from disability discrimination in employment. Through a 
series of decisions interpreting the Americans with Disabilities Act of 
1990 (``ADA''), the Supreme Court has narrowed the law in ways that 
Congress never intended. First, in a trio of decisions decided in June 
1999, the Supreme Court ruled that mitigating measures--medication, 
prosthetics, hearing aids, other auxiliary devices, diet and exercise, 
or any other treatment--must be considered in determining whether an 
individual has a disability under the ADA.\1\ This means people with 
serious health conditions who are fortunate enough to find a treatment 
that makes them more capable and independent--and more able to work--
often find that they are not protected by the ADA at all. Next, in a 
2002 decision, the Supreme Court emphasized that courts should 
interpret the definition of ``disability'' strictly in order to create 
a demanding standard for qualifying as disabled.\2\
    In the wake of these restrictive rulings, individuals who Congress 
intended to protect--people with epilepsy, diabetes, cancer, HIV, 
mental illness--have been denied protection from disability 
discrimination. Either, the courts say, the person is impaired but not 
impaired enough to substantially limit a major life activity (like 
walking or working), or the impairment substantially limits something--
like liver function--that does not qualify as a ``major life 
activity.'' Courts even deny ADA protection when the employer freely 
admits it terminated someone's employment because of their disability. 
This has resulted in an absurd Catch-22 where an employer may say a 
person is ``too disabled'' to do the job but not ``disabled enough'' to 
be protected by the law. This is not what Congress intended.
    Congress never intended to exclude people like Charles Irvin 
Littleton, Jr., Mary Ann Pimental, Carey McClure, Stephen Orr, or James 
Todd. Their stories are among those collected below, which demonstrate 
the problem created by the courts' misinterpretation of the definition 
of disability. These stories make it clear this problem is not limited 
to a single judge, employer, or geographic area. This is a nationwide 
problem that requires an appropriate congressional fix.

                                 ______
                                 
State: Alabama

Disability:  Intellectual & Developmental Disabilities

Courts: 11th Circuit 2007 (AL, FL, GA)
                      charles irvin littleton, jr.
    Charles Littleton is a 29-year-old man who was diagnosed with 
intellectual and developmental disabilities* as a young child.
---------------------------------------------------------------------------
    * ``Intellectual and developmental disabilities'' are preferred 
terms in the disability community. The term ``mental retardation'' is 
used in this description only in direct quotes from the court's 
opinion.
---------------------------------------------------------------------------
    A high school graduate with a certificate in special education, 
Charles lives at home with his mother and receives social security 
benefits.\3\ In an effort to work, Charles has been a client of several 
State agencies and public service organizations, including the Alabama 
Independent Living Center, that provide vocational assistance to people 
with disabilities.\4\
    In 2003, Charles' job counselor at the Independent Living Center 
helped Charles get an interview for a position as a cart-pusher at a 
local Wal-Mart store in Leeds, Alabama.\5\ The job counselor asked Wal-
Mart if she could accompany Charles in his interview, and Wal-Mart's 
personnel manager agreed. When they got to the store, however, the job 
counselor was not allowed into the interview. The interview did not go 
well for Charles and Wal-Mart refused to hire him. According to Wal-
Mart, he was not hired because he displayed ``poor interpersonal 
skills'' and a lack of ``enthusias[m] about working at Wal-Mart.'' \6\
    Charles felt that he had been discriminated against based on Wal-
Mart's refusal to allow his job counselor to accompany him in the 
interview as previously agreed, and decided to file a claim under the 
ADA. But no court ever reached the question of whether Charles was 
qualified for the job, whether Wal-Mart discriminated against Charles 
because of his disability, or whether Wal-Mart violated the law by not 
modifying its policies to allow a job counselor to accompany Charles. 
Instead, the courts simply ruled that Charles Littleton was not 
``disabled'' under the ADA:

          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\

    Noting the Supreme Court's ``demanding standard for qualifying as 
disabled,'' \8\ the courts found that ``there is no evidence to support 
Littleton's necessary contention that his retardation substantially 
limits him in one or more major life activities.'' \9\
    Charles first tried to show that he was substantially limited in 
the major life activities of thinking, learning, communicating, and 
social interaction. Charles explained that:

     his cognitive ability is (according to his job counselor) 
comparable to that of an 8-year-old\10\;
     he needed a job counselor during the interview process and 
on the job with him after hiring, until he became familiar with the 
routine \11\;
     his own testimony demonstrated ``difficulty thinking and 
communicating'' as the courts, themselves, acknowledged \12\;
     the reason Wal-Mart's personnel manager originally agreed 
to allow Charles' job counselor to accompany him to his interview was 
precisely because of his difficulty communicating and interacting with 
others \13\; and
     according to the Supreme Court: ``[c]linical definitions 
of mental retardation require not only subaverage intellectual 
functioning, but also significant limitations in adaptive skills such 
as communication, self-care, and self-direction . . . [People with 
mental retardation] by definition . . . have diminished capacities to 
understand and process information, to communicate, to abstract from 
mistakes and learn from experience, to engage in logical reasoning, to 
control impulses, and to understand the reactions of others.'' \14\

    The courts were not persuaded.
    ``It is unclear whether thinking, communicating and social 
interaction are `major life activities' under the ADA,'' the Court of 
Appeals for the 11th Circuit stated.\15\ Even assuming that they are, 
the court relied on Charles' ability to drive a car as evidence that 
Charles was not substantially limited in his ability to think. In 
addition, the appellate court found that ``[a]ny difficulty Littleton 
has with communicating does not appear to be a substantial limitation'' 
since Charles' mother and job counselor testified that, among other 
things, Charles is ``very verbal.'' \16\
    The court acknowledged that Charles ``is somewhat limited in his 
ability to learn because of his mental retardation,'' but concluded 
that this did not substantially limit his ability to learn. According 
to the appellate court, ``Littleton is able to read and comprehend and 
perform various types of jobs.'' \17\
    Charles also tried to show that he was substantially limited in the 
major life activity of working. He explained that he receives social 
security disability benefits, which are granted only to those who are 
unable to work by reason of a medically determinable physical or mental 
impairment. He also explained that the only jobs that he ever held 
involved stocking shelves at supermarkets, custodial work, and a summer 
job as a recreational aide. He required application assistance and a 
job coach for all of them.\18\ The appellate court concluded that while 
Charles was not hired for the cart-pusher job, there were other jobs he 
could do and, therefore, he was not substantially limited in his 
ability to work.\19\

State: Texas

Disability: Epilepsy

Court: Southern District Texas 1999
                               james todd
    James Todd has lived with epilepsy since he was 5 years old. While 
medication helps to minimize the duration and intensity of his 
seizures, it does not cure his epilepsy--he still has seizures about 
once a week. His seizures follow a familiar pattern, beginning with a 
tingling sensation that signals the onset of a seizure. During a 
seizure, which can last anywhere from 5 to 15 seconds, James is unable 
to speak, the left side of his body shakes involuntarily, and his 
thinking becomes clouded. James removes himself from the company of 
others as soon as he feels a seizure coming on, and lies down until the 
seizure is over.\20\
    In September of 1996, sporting goods giant Academy Corporation 
hired James as a stocking clerk, whose job it was to inventory and 
stock merchandise. James made approximately $5.00/hour on the job. 
Several weeks into the job, James had his first seizure at work, told 
his supervisors he had epilepsy, and explained how to respond if he had 
a seizure at work.\21\
    Five months later, after James had been out sick with a stomach flu 
for 5 consecutive days, Academy fired him. Although James had notified 
his supervisor of his illness and absence each day, as required by the 
company's written work policy, Academy told him that he had violated an 
``unwritten policy'' that prohibits taking more than 3 consecutive days 
off without sick leave or vacation leave, when the FMLA does not cover 
the situation. James decided to challenge Academy's decision to fire 
him, and filed a complaint under the ADA.\22\
    The district court never reached the question of whether James had 
been fired because of his epilepsy. Instead, the court concluded that 
since James was able to manage his seizures with medication, he was not 
disabled enough to claim protection under the ADA in the first 
place.\23\
    Had James Todd's case been decided just 2 months earlier, before 
the Supreme Court's decision in Sutton v. United Airlines, James would 
have received protection under the ADA. As the district court noted, 
before Sutton,

        epilepsy would, without question, be considered a substantial 
        limitation on several major life activities, and a person 
        suffering from epilepsy would receive nearly automatic ADA 
        protection.\24\

    However, after Sutton, the court explained that it needed to 
consider whether James was substantially limited in a major life 
activity after taking into account how well James' epilepsy medication 
worked for him. Under that analysis, James was not disabled: ``[e]xcept 
for a time period of 15 seconds per week, [James] is able to work, 
walk, talk, think and learn'' and thus ``cannot be considered 
`disabled' under the ADA.'' \25\ The fact that James lay shaking on the 
floor and unable to talk for 15 seconds per week amounts to ``only'' a 
``momentary physical limitation[] which could not be classified as 
substantial.'' \26\

State: New Hampshire

Disability: Breast Cancer

Court: New Hampshire District Court 2002
                           mary ann pimental
    Mary Ann Pimental was a registered nurse who lived in Hudson, New 
Hampshire with her husband and two children and worked in a hospital. 
Five years into her job as a staff nurse, the hospital promoted Mary 
Ann to its nurse management team. A little more than a year later, Mary 
Ann was diagnosed with stage III breast cancer.\27\
    Mary Ann initially took time from work to undergo surgery 
(mastectomy) and follow-up treatment (chemotherapy and radiation 
therapy). While Mary Ann was hospitalized and receiving treatment for 
cancer, the hospital reorganized its management team and eliminated 
Mary Ann's position. When Mary Ann was able to return to work, she 
applied for several different positions but was not hired. The hospital 
finally rehired her into a staff nurse position that provided only 20 
hours of work each week. As a result, Mary Ann was not eligible for 
higher benefits offered to employees working 30 or more hours each 
week.\28\
    Given her strong work history, and because she was asked about her 
ongoing cancer treatments and ability to handle work with the stress of 
battling cancer, Mary Ann believed that the hospital failed to rehire 
her into a better position because of her breast cancer. She decided to 
challenge these decisions, and filed a claim under the ADA.\29\
    The hospital argued that she wasn't protected by the ADA because 
she didn't have a ``disability.'' \30\
    So Mary Ann provided highly personal, sometimes embarrassing, 
evidence to her employer and the courts of how her impairment--breast 
cancer--impacted her life in a severe and substantial way. That impact 
included:

     hospitalization for a mastectomy, chemotherapy, and 
radiation therapy;
     problems concentrating, memory loss, extreme fatigue, and 
shortness of breath;
     premature menopause brought on by chemotherapy, and burns 
from radiation therapy;
     problems in her shoulder resulting in an inability to lift 
her left arm over her head;
     sleep-deprivation caused by nightmares about dying from 
the cancer;
     difficulty in intimate relations with her husband because 
of premature menopause and Mary Ann's discomfort and self-consciousness 
following the mastectomy; and
     the need for assistance from her husband and mother in 
order to care for herself and for the couple's two children because of 
extreme fatigue, and difficulties performing basic tasks like climbing 
stairs or carrying household items.\31\

    When Mary Ann returned to work she still was undergoing radiation 
therapy and experiencing fatigue. She still could not lift her arm 
above her head, still experienced concentration and memory problems, 
and still received help at home from her husband and mother.\32\
    The district court never reached the question of whether Mary Ann's 
breast cancer played a role in her failure to be rehired into a better 
management position. Instead, the court agreed with the hospital that 
``the most substantial side effects [of Mary Ann's breast cancer and 
treatment] were (relatively speaking) short-lived'' and therefore 
``they did not have a substantial and lasting effect on the major 
activities of her daily life.'' \33\ Because MaryAnn failed to show she 
was limited by the breast cancer on a ``permanent or long-term basis,'' 
she was held not to have a ``disability'' under the ADA.\34\
    The district court also relied on Mary Ann's assertions that her 
cancer ``did not substantially impair her ability to perform various 
tasks associated with her employment.'' This assertion, according to 
the court, undermined Mary Ann's claim that the cancer had 
substantially affected her ability to care for herself on a long-term 
basis.\35\
    Mary Ann Pimental died of breast cancer 4 months after the court 
issued this decision.

State: Nebraska

Disability: Diabetes

Court: 8th Circuit 2002 (AR, IA, MN, MO, NE, ND, SD)
                              stephen orr
    Stephen Orr was a pharmacist at Wal-Mart in Chandron, Nebraska, a 
town of 6,000 nestled in the rural northwestern part of the State. 
Stephen was hired in early 1998. During his interview, he told his 
soon-to-be boss that he had diabetes and needed to take regular, 
uninterrupted lunch breaks. Stephen was authorized to take a 30-minute 
lunch break during his 10-hour work shift.\36\
    Doctors diagnosed Stephen with diabetes in 1986. He requires 
multiple injections of insulin daily and uses a device called a 
glucometer to monitor his blood sugar levels. In order to keep his 
blood sugar stable, Stephen follows a regimented diet, monitoring what 
and when he eats in coordination with his medication regimen. If he 
does not, he experiences episodes of either hypoglycemia (low blood 
sugar) or hyperglycemia (high blood sugar).\37\
    When his blood sugar levels are not in his target range, Stephen 
experiences:

     seizures;
     deteriorated vision;
     trouble talking;
     the need to urinate frequently;
     loss of consciousness;
     lack of physical strength and energy;
     coordination problems;
     difficulty reading or typing; and
     impaired concentration and memory.\38\

    Complications caused by fluctuating blood sugar levels can, and 
have, resulted in hospitalization.\39\
    After he started working, Stephen took lunch breaks as agreed, 
closing the pharmacy to eat without being interrupted.\40\ During this 
time, Stephen did not experience severe hypoglycemia and performed his 
job well.\41\ No one complained about the pharmacy being closed for the 
half hour that Stephen was taking lunch.
    When a new district manager took over, he told Stephen to stop 
closing the pharmacy, and to eat lunch whenever possible during down 
times in the pharmacy.\42\
    Stephen obeyed this order, but started having problems with low 
blood sugar because he was no longer able to control the times that he 
ate. Stephen told his new boss that, because of the no-lunch-break 
order, he had experienced several hypoglycemic incidents and that he 
needed to resume his noon lunch breaks to control his blood sugar. 
Stephen's boss continued to deny the request for a lunch break and 
ultimately fired him.\43\
    Stephen decided to challenge his firing and filed a claim against 
Wal-Mart under the ADA.
    Wal-Mart responded that Stephen did not have a ``disability'' 
because Stephen was able to manage his diabetes with insulin and 
diet.\44\
    The courts agreed. Because the Supreme Court directed courts to 
consider ``mitigating measures'' in deciding whether an individual has 
a disability, the Court of Appeals for the 8th Circuit found that 
Stephen did so well managing his condition that he was not disabled 
enough to be protected by the ADA.\45\
    Wal-Mart's refusal to allow Stephen to take a lunch break was never 
questioned.
    Although Wal-Mart vigorously defended its refusal to allow Stephen 
a lunch break, Wal-Mart voluntarily changed company policy in 2000 to 
allow one-pharmacist pharmacies to close for 30 minutes at lunch 
because of ``retention'' problems.\46\

State: Texas

Disability: Muscular Dystrophy

Court: 5th Circuit 2003 (LA, MS, TX)
                             carey mcclure
    Since age 15, Carey McClure has had a form of muscular dystrophy 
that affects the muscles in his upper arms and shoulders. Carey has 
difficulty raising his arms above shoulder level and has constant pain 
in his shoulders. In his work as a professional electrician, Carey 
performs most of his job functions without modification, and has 
adapted how he performs overhead tasks like changing light fixtures or 
working on ceiling wiring. Carey performs these job functions by (a) 
throwing his arms over his head to perform the work, (b) repositioning 
his body so that he can raise his arms, (c) supporting his arms on an 
adjacent ladder, or (d) using a ladder, step-stool, or hydraulic lift 
so that it is not necessary for him to raise his arms above shoulder 
level.\47\
    Carey was living in Georgia and had 20 years of experience working 
as an electrician when he applied for a better opportunity at a General 
Motors' assembly plant in Arlington, Texas. GM offered Carey the job 
pending completion of a pre-employment physical examination. During 
that exam, GM's physician asked Carey to raise his arms above his head. 
When he saw that Carey could only get his arms to shoulder level, the 
physician asked how Carey would perform overhead work. Carey, who had 
performed such work in the past, responded that he would use a ladder. 
Despite the fact that other electricians in the plant often used 
ladders or hydraulic lifts to do overhead work, the physician revoked 
GM's offer of employment.\48\
    Carey challenged GM's decision. Eventhough GM revoked its job offer 
because of limitations resulting from Carey's muscular dystrophy,\49\ 
GM argued that Carey did not have a ``disability'' and was not 
protected by the ADA.\50\
    Carey responded with highly personal information regarding the many 
ways that his muscular dystrophy limits his daily life activities. 
Carey explained that:

     he is able to wash his hair, brush his teeth, and comb his 
hair only by supporting one arm with the other;
     he wears button down shirts because it is too difficult 
for him to pull a t-shirt over his head;
     he must rest his elbows on the table in order to eat, and 
lowers his head down over the plate so that he can get the food to his 
mouth;
     he cannot exercise or play sports, and cannot care for his 
grandchildren by himself; and
     his ability to engage in sexual activities is limited by 
his muscular dystrophy.\51\

    GM argued that--because Carey had adapted so well--he was not 
substantially limited in any major life activity.\52\
    The courts agreed. According to the Court of Appeals for the 5th 
Circuit,

        [Carey] has adapted how he bathes, combs his hair, brushes his 
        teeth, dresses, eats, and performs manual tasks by supporting 
        one arm with the other, repositioning his body, or using a 
        step-stool or ladder. . . . [Carey's] ability to overcome the 
        obstacles that life has placed in his path is admirable. In 
        light of this ability, however, we cannot say that the record 
        supports the conclusion that his impairment substantially 
        limits his ability to engage in one or more major life 
        activities.\53\

    Because the courts found that Carey did not have a ``disability,'' 
GM's decision to revoke his offer because of limits resulting from his 
muscular dystrophy was never questioned.

State: Utah

Disability: Multiple Sclerosis

Court: 10th Circuit 1999 (CO, KS, NM, OK, UT, WY)
                             laura sorensen
    Laura Sorensen started working as a clinical nurse for the 
University of Utah Hospital in 1990. A year later, the Hospital hired 
her to work as a flight nurse for its helicopter ambulance service.\54\
    Two years into her dream job, Laura was diagnosed with multiple 
sclerosis and hospitalized for 5 days.
    Laura's physician cleared her to return to work within 2 weeks, but 
Laura's supervisors initially refused to allow her to return as a 
flight nurse. Laura agreed to return as a regular nurse for an 
evaluation period, during which time she worked successfully in the 
burn unit, the surgical intensive care unit, and emergency room. After 
a 2-month evaluation period, a neurologist examined Laura and cleared 
her to return to work as a flight nurse.\55\
    Laura's AirMed supervisor still refused to allow Laura to return in 
the flight nurse position because the neurologist could not guarantee 
that Laura would never experience symptoms related to her multiple 
sclerosis while on duty. Laura's AirMed supervisor felt that this 
justified his decision to keep Laura grounded indefinitely.\56\
    Laura continued working for the Hospital for a few more months, 
resigning after it became clear that she would never be allowed to work 
as a flight nurse.\57\
    Laura believed, consistent with her evaluating neurologist, that 
she could perform the flight nurse job safely. Because she felt that 
she was demoted because of unjustified fears about her disability, 
Laura decided to challenge the Hospital's decision.\58\
    The Hospital responded that Laura's multiple sclerosis did not 
qualify as a ``disability'' under the ADA, eventhough it was the sole 
reason that Laura was barred from working as a flight nurse.
    The courts agreed.\59\
    According to the Court of Appeals for the 10th Circuit, eventhough 
Laura ``could not perform any life activities during her 
hospitalization,'' her hospital stay had not been permanent or long-
term enough to qualify Laura as disabled under the ADA.\60\ And 
eventhough the Hospital based its decision on Laura's multiple 
sclerosis, its refusal to hire her in the ``single job'' of flight 
nurse was not enough to show that it regarded her as disabled.\61\
    In an interview with the Salt Lake Tribune following the court's 
dismissal of her case, Laura explained that ``[t]he university took a 
red paintbrush and put a scarlet `MS' on my forehead. I was a disease 
from that point on. I can do that job--that's the bottom line.'' \62\
    Laura proved this point by leaving Utah briefly to work as a flight 
nurse in Arizona. Upon her return to Utah, Laura won the Utah Emergency 
Room Nurse of the Year Award,\63\ but still has not been allowed to 
work as a flight nurse in her home State.

State: Florida

Disability: Epilepsy

Courts: 11th Circuit 2001 (AL, FL, GA)
                          charlotte chenoweth
    Charlotte Chenoweth is a registered nurse from rural Florida with 
over 15 years of nursing experience. In 1995, Charlotte started working 
for the county health department, where she reviews the files of 
hospital patients for whom the County is financially responsible.\64\
    Two years into her job with the county, Charlotte had a seizure and 
was diagnosed with epilepsy. Her doctor put Charlotte on an anti-
seizure medication and advised her not to use a stove or bathe alone, 
and not to drive until she had gone 6 months without another 
seizure.\65\ Charlotte's anti-seizure medication also increases the 
risks of having a child with birth defects, and Charlotte decided not 
to have children as a result.\66\
    During the 6-month period after starting anti-seizure medication, 
Charlotte asked the health department if she could do document review 
work from home for 2 days per week as she and others had done in the 
past or, alternatively, if her hours could be varied slightly to allow 
friends and family to drive her to work.\67\ The health department 
refused. Believing that her requests were reasonable, Charlotte decided 
to challenge the county's decisions.\68\
    The county initially agreed that epilepsy is a disability under the 
ADA. But, while Charlotte's case was still pending, the Supreme Court 
issued its 1999 ``mitigating measures'' decisions, and the county 
retracted this admission. Following those decisions, the county started 
arguing that Charlotte's epilepsy did not qualify as a ``disability'' 
and that she was not protected by the ADA at all.\69\
    The courts agreed. Eventhough Charlotte had been unable to cook, 
bathe by herself, or drive until she had gone 6 months without a 
seizure, the Court of Appeals for the 11th Circuit found that Charlotte 
was not ``disabled'' because none of these activities are ``major life 
activities'' under the ADA. Though it recognized that having children 
is a major life activity, the court refused to consider whether 
Charlotte had a ``disability'' because of limitations on her ability to 
have children due to the increased risk of birth defects from her anti-
seizure medication. The court dismissed this evidence that Charlotte 
meets the ADA's definition of ``disability'' as irrelevant to her work 
for the county.\70\

State: Wyoming

Disability: Depression

Court: D. Wyoming 2004
                            michael mcmullin
    Michael McMullin has lived and worked as a law enforcement officer 
in Wyoming his entire adult life. In 1973, he started his career as an 
officer with the Casper, Wyoming Police Department. Thirteen years into 
that job, Michael started experiencing symptoms of depression, 
including insomnia and severe sleep deprivation. After struggling with 
these symptoms for a few years--during which he periodically got only 
2-3 hours of sleep a night--Michael became suicidal and sought medical 
leave and assistance. His physician referred him to a psychiatrist, who 
diagnosed Michael with clinical depression and prescribed medication to 
treat his depression, insomnia, and sleep deprivation. This treatment 
controlled Michael's symptoms and he was able to return to work after 5 
months of medical leave.\71\
    Michael stayed with the Casper Police Department for another 8 
years, receiving numerous awards and commendations. In 1996, Michael 
left Casper and moved to Cheyenne, Wyoming where he was hired by the 
Capitol Police Department to provide security and protection to the 
Wyoming Governor and First Family. At the time of his hiring, Michael 
told the Capitol Police Department about his clinical depression, and 
asked that he not be assigned regularly to the graveyard shift. Michael 
successfully served as a security officer for the Governor for 5 years, 
until 2001, when he decided to apply for a job as a court security 
officer at the Federal building in Cheyenne.\72\
    Michael again disclosed his clinical depression when he applied for 
employment and was assured that--as long as his depression was under 
control and treated with medication--it would not pose an obstacle to 
employment as a court security officer. Michael took the required pre-
employment medical examination and answered questions about his medical 
history and use of medication. The examining physician found that 
Michael could perform the job without limitation, and Michael started 
working as a court security officer.\73\
    Michael performed the job without any complaints from supervisors 
until another doctor reviewed his medical files and decided that he was 
``not medically qualified'' because of his depression and use of 
medication.\74\ Michael was suspended without pay, and was then 
medically disqualified from working as a court security officer. 
Michael filed an internal appeal, providing his previous employment 
evaluations--including those from the State of Wyoming--and letters 
from doctors stating that he was fully capable of performing law 
enforcement duties. After his internal appeal was denied, Michael 
decided to challenge his medical disqualification and filed claims of 
disability discrimination under the ADA and the Rehabilitation Act of 
1973.\75\
    After firing him because of his clinical depression, his employers 
argued that Michael's depression did not qualify as a ``disability'' 
under Federal law, eventhough it was the admitted basis for its 
termination decision.\76\
    The court agreed.
    Because Michael's medication successfully managed his symptoms, his 
depression was not disabling enough. With regard to his history of 
sleep deprivation and insomnia, the court decided that:

          Sleep deprivation which results in a plaintiff getting only 
        2-3 hours of sleep per night is not ``severe'' enough to 
        constitute a substantial limitation on the major life activity 
        of sleeping.\77\

    As for limitations on his ability to work, the court found that--
while he had been excluded from working as a court security officer--
Michael was still able to perform other jobs and, therefore, was not 
substantially limited in his ability to work.\78\ Eventhough his 
depression had prevented him from working in the past, the ``5-month 
period in which [Michael] actually missed work in 1988 was of limited 
duration; this weighs against a finding of substantial limitation.'' 
\79\ Finally, his employers had not ``regarded'' Michael as disabled 
because they had only barred him from ``a single job rather than a 
class of jobs.'' \80\
    Because ``[t]he definition of disability is the same for claims 
under either the ADA or Rehabilitation Act,'' the court dismissed 
Michael's disability discrimination claims under both laws.\81\ As a 
result, his employers' decision to rescind their initial medical 
clearance and to ignore Michael's 30 years of law enforcement 
experience went unchallenged.
    The court recognized the unfairness of this result, but said that 
its hands were tied by current interpretations of the law, noting that: 
[t]his is one of the rare, but not unheard of, cases in which many of 
the plaintiff 's claims are favored by equity, but foreclosed by the 
law.\82\
                            References Cited
1. Sutton v. United Airlines, Inc., 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).
2. Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 
    184, 197 (2002).
3. Littleton v. Wal-Mart Stores, Inc., No. 05-12770, 2007 WL 1379986, 
    at *1 (11th Cir. May 11, 2007).
4. Brief for Appellant, 2005 WL 4720205, at *3 (No. 05-12770FF).
5. Littleton, 2007 WL 1379986, at *1; Brief for Appellant at *4.
6. Brief for Appellant at *29.
7. Littleton, 2007 WL 1379986, at *4.
8. Id. at *2 (quoting Toyota Motor Mfg. v. Williams, 534 U.S. 184, 197 
    (2002)).
9. Id.
10. Brief for Appellant at *8, *34.
11. Id. at *21.
12. Littleton, 2007 WL 1379986, at *3.
13. Brief for Appellant at *29.
14. Id. at *27 (quoting Atkins v. Virginia, 536 U.S. 304, 318 (2002)) 
    (emphasis added).
15. Littleton, 2007 WL 1379986, at *3.
16. Id. at *4.
17. Id.
18. Brief for Appellant at *34-35.
19. Littleton, 2007 WL 1379986, at *3.
20. Todd v. Academy Corp., 57 F. Supp. 2d 448, 449-50 (S.D. Tex. 1999).
21. Id. at 450.
22. Id. at 450-51.
23. Id. at 454.
24. Id. at 452.
25. Id at 454.
26. Id. at 453-54.
27. Pimental v. Dartmouth-Hitchcock Clinic, 236 F. Supp. 2d 177, 179-80 
    (D.N.H. 2002).
28. Id. at 180.
29. Id. at 179-80, 186-87.
30. Brief for Defendant, 2002 WL 33016261 (No. CV-01-292-M).
31. Pimental, 236 F. Supp. 2d at 183-85; Brief for Defendant at 
    para.para. 14-16.
32. Brief for Defendant at para.para. 14-16.
33. Pimental, 236 F. Supp. 2d at 183.
34. Id. at 184.
35. Id. at 183.
36. On v. Wal-Mart Stores, Inc., 297 F.3d 720, 722 (8th Cir. 2002).
37. Id.
38. Id.; Orr, 297 F.3d at 726 (Lay, J. dissenting); Brief for Appellee, 
    2001 WL 34156010, at *15-16 (No. 01-2959).
39. Orr, 297 F.3d at 727 (Lay, J., dissenting).
40. Id. at 722.
41. Brief for Appellee at *11-12.
42. Orr, 297 F.3d at 722.
43. Id. at 723.
44. Brief for Appellee at *17.
45. Orr, 297 F.3d at 724.
46. Id. at 727 n.9 (Lay, J., dissenting); Brief for Appellee at *16, 
    44-45.
47. McClure v. General Motors Corp., 75 Fed. Appx. 983, 2003 WL 
    21766539, at *1-2 (5th Cir. 2003); Brief for Appellant, 2003 WL 
    22452651, at *4-5 (No. 03-10126).
48. McClure, 2003 WL 21766539, at *3; Brief for Appellant at *5-8.
49. Brief for Appellant at *7.
50. Brief for Appellee, 2003 WL 22452652, at *5 (No. 03-10126).
51. McClure, 2003 WL 21766539, at *1-2; Brief for Appellant at *2-5, 
    18-23.
52. Brief for Appellee at *6.
53. McClure, 2003 WL 21766539, at *2.
54. Sorensen v. University of Utah Hosp., 194 F.3d 1084, 1085 (10th 
    Cir. 1999).
55. Id.
56. Id. at 1085-86.
57. Id. at 1086.
58. Id.
59. Id. at 1088-89.
60. Id. at 1087-88.
61. Id. at 1089.
62. Sheila R. McCann, Former Flight Nurse With MS Frustrated by 
    Disability Ruling, Salt Lake Trib., Apr. 6, 1998, at D1.
63. Id.
64. Chenoweth v. Hillsborough County, 250 F.3d 1328, 1329 (11th Cir. 
    2001).
65. Id.
66. Id.; Brief for Appellant, 2000 WL 33988759, at *4 (No. 00-10691-
    EE).
67. Chenoweth, 250 F.3d at 1329; Brief for Appellant at *5.
68. Chenoweth, 250 F.3d at 1329.
69. Brief for Appellant at *9 n. 1.
70. Chenoweth, 250 F.3d at 1329-30.
71. McMullin v. Ashcroft, 337 F. Supp. 2d 1281, 1287, 1297 (D. Wyo. 
    2004).
72. Id. at 1287-88.
73. Id. at 1288.
74. Id. at 1289.
75. Id. at 1289-90.
76. Id. at 1294.
77. Id. at 1297.
78. Id. at 1296.
79. Id. at 1297.
80. Id. at 1298.
81. Id. at 1294.
82. Id. at 1286.

    Senator Harkin. Thank you very much, Ms. Feldblum.
    Thank you all very much for your testimonies. I think 
therein you have, sort of, the spectrum of arguments on it that 
I've heard thus far. Although, since we haven't really had too 
many hearings on it, we haven't been really able to flesh out, 
this being the first hearing, I'm sure we'll have more as we 
move ahead on this, either later this year or after the first 
of the year.
    I'm going to ask Mr. Thornburgh, if I might. You've heard 
these arguments. Now, it seems to me and I'll go down the line, 
I wanted to read, again, the exact language, I paraphrased it 
earlier in the day. You know, we pass laws here, I've been 
doing this for 37 years, we pass a lot of laws in Congress, we 
don't put into every law every little jot and tiddle of 
everything it's supposed to cover. I mean, the U.S. Code is big 
enough as it is. If we did that, it will fill every library in 
this country.
    So what we do is we pass laws that are fairly broad, but in 
order to give instructions to the Court, we give report 
language, that's why we have report language. We put in there 
to guide courts as to what we meant by that.
    We said in the report language that, ``whether a person has 
a disability should be assessed without regard to the 
availability of mitigating measures, such as reasonable 
accommodations or auxiliary aids.'' Again, with that kind of 
language, I'm so baffled after all these years--and reading 
these court decisions, and the reasoning of the court--as to 
why they wouldn't take that into account. And I just wonder, 
Dick, if you could share any light on that, I'm wrestling with 
this.
    We put it in there, the House put in similar language, I'm 
sorry, I don't have the House language, but it's basically 
pretty similar. That we just said that mitigating 
circumstances--I can't remember specifically. But I can sure 
remember all of the hearings and investigations and testimony 
that we had in those days, back in 1986, 1987, 1988, 1989, that 
there were cases of--there were times when people would, 
obviously, with the assistance of an aid--whether it was a 
wheelchair or a prosthetics or whatever it might be, could get 
a job. But we were still aware that they were being 
discriminated against on a daily basis. I think that, my memory 
serves me right, that's why we put that in there.
    That's also why we put the language in, definition of 
disability, ``As used in the ADA, the term disability means, 
with respect to an individual, a physical or mental impairment 
that substantially limits one or more of the major life 
activities of such an individual,'' that's 504, ``a record of 
such an impairment,'' or C, ``Be regarded as having such an 
impairment.'' I remember, we wrestled for days, weeks, on that 
language. And, it was different than that from where we 
started, and we finally agreed on that language as being 
regarded as having such an impairment. And we put that in for a 
reason. Because, we knew that at times, people may not appear 
to be disabled. To the eye, to the ear, to casual observation 
and stuff, may not appear to be disabled in one or more 
activities, but are, nonetheless, regarded as being disabled.
    As I read these cases, I start to wrestle with this, I'm 
wondering how, with all of this, could we have strayed so far 
to the point now where we have these Catch-22 situations. And 
later, I'm going to ask Ms. Olson to address some of those, as 
to how they might approach them.
    I guess what I'm asking, it may be an impossible question, 
may be an impossible answer, is to help me think about, how did 
we get so far off of this rule, what could the Court have been 
thinking, and I guess from your testimony, you think that S. 
1881 would be a proper response, is that what we have to do to 
get it back on track again?
    Kind of a convoluted question, I guess.
    Mr. Thornburgh. Don't ask me to explain how the U.S. 
Supreme Court operates, in this or any other situation, 
Senator, I'm not privy--as you aren't--to their deliberations, 
in detail. It does seem to me as a lawyer, however, that 
reliance on legislative history is hardly a bizarre undertaking 
in the normal case. But you and I are both aware that there has 
been a back and forth on the U.S. Supreme Court for some time 
between those justices who put more or less emphasis on the use 
of legislative history.
    I think you're right, I mean, you go to the well again, and 
lay it out in no uncertain terms, again, and I think that's 
about all that you can do. And I think that that's what this 
bill does.
    I certainly don't think that the types of situations that 
have resulted in exclusion of persons from the coverage of the 
act--as I said in my testimony--were ever contemplated by those 
of us who were engaged in the storm and throng of debate that 
led up to the passage of the bill. You have to look at it this 
way, I think, why do we care if someone is covered by the ADA? 
Why do we care if they have a disability that is entitled to 
protection under the ADA?
    It seems to me for two reasons. One is to protect them 
against discrimination. That if they're defined as having a 
particular disability and are discriminated against in the 
workplace, we're talking about, today, they're entitled to some 
relief.
    Second, is that they're also entitled to have a reasonable 
accommodation made to that disability, an accommodation that 
doesn't place an undue burden on the employer, so that they can 
assume their place in the workforce, notwithstanding the fact 
that they have a disability. Those are two very crucial 
determinations that turn upon what the proper definition of a 
person with a disability is.
    As I say, I think that by importing the definition from the 
long-utilized and well-recognized provisions of the 
Rehabilitation Act, that intention--to my view--could not have 
been made more clear. Obviously, for reasons unknown to you and 
me, the Court didn't agree, and that's why I think that you're 
embarked on a proper course to make these fine-tuning 
adjustments that restore the original intent that we all had.
    Senator Harkin. It almost seems to me that the Court is 
just kind of taking a standard that disabled means that you're 
not able to do anything. That's sort of the standard. You're 
disabled and you're not really able to do something, you're not 
really able to work. It concerns me that there's a theme in 
these cases that run through that, well, gee, you're able to 
work and do something else, I mean if you've got a job, that 
means you're not disabled but in some of these cases, it's the 
difference between a job that a person can get that provides 
them with some income, but it's not the job for which they are 
really, fully capable of doing and trained to do. They can't 
reach their full, maximum potential. It seems like the U.S. 
Supreme Court said, ``Well, gee, if you can get a job bagging 
groceries, then you're not disabled.'' But with a reasonable 
accommodation, you can be a pharmacist.
    It seems to me that's sort of what they're looking at, and 
I'm trying to wrestle with that. And I don't know, that's just 
sort of my reading of it, I don't know if that strikes a chord 
with you about that we seem to be thinking about it that way, 
that disabled just means, you're unable to do it. And that's 
not what we intended when we wrote the ADA. Our intent was, 
basically as you said, was to provide for the freedom for 
people with disabilities to reach their full maximum potential.
    As we will get into the questions in a little bit, here 
it's not just proving a concern that you're disabled, you also 
have to be qualified.
    Sometimes we forget that. There's nothing in the law that 
says you've got to hire someone just because they're disabled. 
You still have to be qualified for that position. A lot of 
times, we forget that.
    Anyway, John Kemp, let me ask you. Ms. Olson said something 
about, and I've heard this before, that if we pass this bill, a 
person with headaches, things like that, will now be regarded 
as disabled, and they can file for protections under the ADA. 
How does that strike you?
    Mr. Kemp. It strikes me as extreme, unfair, and I think the 
definition is pretty clear, if we use the one in the 
legislation that talks about a person with an impairment that 
substantially limits a major life activity. These don't rise to 
that level whatsoever.
    Senator Harkin. I assume that you would respond and say, 
``Well, that would be okay, but not under S. 1881,'' is that 
right Ms. Olson?
    Ms. Olson. The definition that was just described is the 
definition of the ADA. The definition in S. 1881 is just the 
showing that there is a mental or physical impairment, without 
regard whether that mental or physical impairment impacts an 
individual in such a way that any major life activity is 
substantially limited, for any particular duration.
    Again, I think it's particularly important to focus on 
this, because where does the limitation exist, is S. 1881, in 
connection with who wouldn't be covered as somebody who is 
disabled.
    Under S. 1881, having an impairment equates the person to 
be disabled. Exactly what you were saying, Senator Harkin, in 
terms of what you think that the courts are doing, with respect 
to interpretations of the ADA, that's exactly what S. 1881 
does. It says, I don't want to know the functionality of the 
person. If I know that they have a condition, I'm labeling them 
disabled, without regard as to whether or not they are. And 
again, you have to look at it in the context where the ADA was 
passed without a question, with significant compromise and 
discussion between the business community, disability rights 
groups and others in this country. Part of the reason is 
because there are always limited resources in a workplace, and 
employers do have obligations to provide affirmative steps to 
assist disabled individuals in the workplace.
    For example----
    Senator Harkin. Ms. Olson, C, ``being regarded as having 
such an impairment.'' Being regarded.
    Ms. Olson. Yes.
    Senator Harkin. Mr. Orr was regarded. I mean, how do you--
it's not that we say everybody's disabled or impaired, we say 
it, that we are regarded as such, whether or not they were or 
not, that is covered.
    Ms. Olson. I would love to address for just a moment, Mr. 
Orr's situation, if I may.
    Senator Harkin. Sure.
    Ms. Olson. With respect to Mr. Orr, unfortunately, his 
attorney and his complaint in the case did not bring to the 
court any allegation that the impairment that he had adversely 
affected any major life function.
    To make it very clear for this committee, his complaint 
didn't include the allegation that he was substantially limited 
in the major life activity of eating. It was a procedural 
decision. It doesn't describe a defect of the Americans with 
Disabilities Act, it describes a defect with the pleading and 
the litigation that occurred in the case.
    I'll give you another example, Senator Harkin. Had Mr. 
Orr's attorney not filed the lawsuit until 95 days after 
receiving a notice of Right to Sue, 5 days later in the 
procedural time limit, in terms of filing that complaint, he 
also would not have had a successful complaint. Yet, no one 
could argue that that's a problem with the Americans with 
Disabilities Act. It was a procedural issue that was missed.
    In that particular case, even the dissent, notwithstanding 
that particular issue being raised, it was a 2 to 1 decision, 
that perhaps we ought to look beyond it, and look at the facts 
that are being raised at the 8th Circuit.
    Mr. Orr lost that case, not because he was regarded as 
disabled. In that case, initially, the employer assumed that, 
or made the determination that, in fact, in terms of his day-
to-day work, he was going to be entitled to a reasonable 
accommodation, implemented it, and then at some point made the 
determination--which we may disagree with or agree with. But, 
in fact, it was an undue hardship for the employer to continue 
to close the pharmacy, because there was only one pharmacist on 
duty during that lunch hour, when most people were coming in to 
fill prescriptions.
    We may all disagree and we may be frustrated with that 
decision, but it is not a cause to change the Americans with 
Disabilities Act to the broad definition that is being proposed 
in the Senate bill.
    Senator Harkin. I understand that Wal-Mart changed its 
policy later on. Wal-Mart changed its policy later on to 
exactly cover what Mr. Orr's situation was, Ms. Olson. Why did 
they do that? I guess they're free to do that if they want? Or 
are they free not to do that if they want?
    Ms. Olson. I don't know the answer to that question.
    Senator Harkin. Well, I'm just telling you, they did.
    Ms. Olson. I understand that they did, but I don't know why 
they did, which is what you asked.
    Senator Harkin. Do you have a response to that Ms. 
Feldblum?
    Ms. Feldblum. Yes, I think that Ms. Olson has just made the 
strongest case I have heard for why you've done the right thing 
in S. 1881, for getting rid of the term ``substantially 
limits'' a major life activity. Here's why, it's all about the 
pleadings. It's all about whether you are now smart enough to 
say, ``Well, actually, when I have diabetes, even though with a 
medication that's now mitigating it, I'm still substantially 
limited in eating.'' And here's why, because I have to remember 
to take my food--and there are some cases where people have 
argued that, although of course now you have to show that 
you're severely restricted in eating, and so if you have to 
think about whether you have to eat, then is that severe--she 
has exactly described the state of ADA case law today. 
Absolutely.
    Whether Mr. Orr wins or not, is going to be about whether 
his lawyer was smart enough to argue substantially limited in 
eating.
    I mean, if we hadn't had the Sutton case, and mitigating 
measures weren't taken into account, the lawyer wouldn't have 
had to argue about eating, because once you take mitigating 
measures--when you don't take it into account, you're 
substantially limited in lots of things.
    OK, but here's a way you can get around it--sure, you can 
write a law that says that. And you know what? To quote what I 
often hear from the Chamber, that would be a nice employment 
bill for lawyers. I don't think you want to write an employment 
bill for lawyers. I think you want to write a simple, clear 
bill that protects people who are discriminated against, 
because of a physical or mental impairment.
    Let's take the colds, let's take the flu. How many people 
do you know, recently, who've been fired because they have a 
cold or the flu? I don't know a lot that have been fired. I can 
tell you that if you were fired and under the ADA, under the 
``regarded as'' you could demonstrate that you were fired 
because of that, you could have been protected. Pretty high 
burden, but you could have done it.
    Let's be clear--we are not worried about people being fired 
for the cold. We are worried about people being fired because 
they have epilepsy or diabetes or a mental illness that might 
be mitigated with medication. But even if, God forbid, you want 
to think about the cold, that was covered under the ``regarded 
as'' prong. If you could show you were fired because of that.
    That's why I said, the difference is the type of 
discrimination that some of us face, and others don't. That's 
what this Congress needs to care about.
    Senator Harkin. Well, we could get into a nice debate here.
    [Laughter.]
    Ms. Olson, I'd just love to have a response on that, I mean 
these are----
    Ms. Olson. I do have a response.
    Senator Harkin [continuing]. Logical arguments, go ahead.
    Ms. Olson. I do have a response. Ms. Feldblum said that 
Congress is not worried. And, in fact, nothing could be more 
true then that statement. Individuals with minor, temporary 
impairments were never intended to be covered by the Americans 
with Disabilities Act in 1990, and they should not be covered 
today.
    It is not just an issue of being terminated, because you 
have a cold or a sprained ankle, because you were in a 
basketball game on Saturday afternoon and you sprained your 
ankle and you're requesting the closest parking space to the 
door because of that.
    It's a question also of reasonable accommodation, which 
also includes the issue of sick leave. It includes the issue of 
limited resources in the workplace. And the question is, who 
under the Americans with Disabilities Act was intended to 
benefit, to have those benefits. And the answer, under the 
Rehabilitation Act, as well as the Americans with Disabilities 
Act, are individuals who have a mental or physical impairment 
that substantially limits a major life activity. That's 
language that came right out of the Rehabilitation Act and if 
you look at the cases, for every case that's--for every 
condition that is listed on the chart behind you, Senator 
Harkin, there is another case which I can cite to you, and many 
of them are included in my written materials already that have 
been submitted to this committee that show that under the 
Rehabilitation Act, those conditions were determined to not be 
disabilities, because although it was an impairment, the 
impairment did not substantially limit the individual's major 
life activities.
    It's a functional approach, not an approach that's based on 
labeling someone as having a particular condition. And that's 
what the Americans with Disabilities Act has always been about. 
Not labeling people, but looking at their abilities.
    Senator Harkin. Ms. Olson, in 2007, you walked into someone 
on the street and you saw that they was missing an arm, would 
you say they were disabled?
    Ms. Olson. There's no----
    Senator Harkin. If you saw someone without an arm, would 
you say they were disabled?
    Ms. Olson [continuing]. There's no question that that 
person has a physical impairment that in--I would imagine--
substantially limits major life activities, but I would have to 
have more facts than just the facts you gave me to make a 
determination.
    Senator Harkin. Well, like what kind facts?
    Ms. Olson. The facts would be, how are their major life 
activities being affected by that loss?
    Senator Harkin. Then really, it's kind of up to the courts, 
then, to determine how much that person's life activity is 
affected by the loss of that arm, is that right?
    Ms. Olson. It is----
    Senator Harkin. Courts have to determine that?
    Ms. Olson. Under the Rehabilitation Act and under the 
Americans with Disabilities Act, having a condition itself does 
not define someone as disabled. That has always been the case, 
even prior to the passage of the ADA.
    Senator Harkin. So that, it almost seems that the better, 
then, that a person has adapted to a disability, the less 
likely they are to be determined to be disabled.
    Ms. Olson. The more functional a person with a mental or 
physical is----
    Senator Harkin. Then the less they are likely to be 
determined as disabled under, what, the ADA?
    Ms. Olson. Under both statutes on the basis that they are 
not a person that has functionally been limited in their 
abilities to work, and they aren't the individuals who are 
intended to be benefiting from affirmative obligations 
employers are engaging in to assist them into the workplace, 
because they are able, already functionally, to be there.
    Senator Harkin. But it seems to me, then, we're in a 
situation where--and I remember we went through this in the 
1980's, Dick, we went through it where people said, ``you've 
got to list every single disability.'' And we were coming up 
with lists that were longer than this. And finally we said, 
``We can't do that, we can't possibly list every single 
disability and the extent to which it may impair a person's 
abilities.'' And so that's why we came up with the definitions 
that we did. And it almost seems what I'm hearing you saying is 
that this person I ask you to describe, they don't have any 
arms, do you consider them disabled, it's almost--to 
paraphrase--it's almost saying, ``Well, I don't know, I'd have 
to know how they function.''
    Well, does that mean that someone who, then has adapted 
better to medicine or something like that, or maybe diabetes, 
well then they're less covered than someone else? The fact that 
they both have diabetes? They both have an amputation? Or 
missing a limb? It seems to me that that, by itself, de facto, 
says that you are disabled.
    Now, now you've got, you see if you've got that, then you 
still then have to prove a couple of other things, you know. 
That you're qualified for the job----
    Ms. Olson. Not under S. 1881.
    Senator Harkin. What?
    Ms. Olson. Not under S. 1881, the burden shifts to the 
employer to prove that you're qualified under the current 
draft.
    Senator Harkin. I don't believe that's so.
    Ms. Feldblum.
    Ms. Feldblum. Yes, let me address the qualified issue, and 
then also, what I think is just some factual mistakes, and 
since this is a hearing and I want to make sure the record is 
clear.
    First on the ``qualified.'' One of the things that S. 1881 
does is simply make the language of ADA be comparable to the 
language of Title VII of the Civil Rights Act of 1964, 
something you were trying to do mostly in the ADA, but in a few 
places we diverged, and under title VII, it says you can't 
discriminate on the basis of race, sex or religion. And, in the 
ADA, it said, you can't discriminate against a qualified 
individual with a disability.
    In S. 1881, the language now reads exactly like title VII, 
``you may not discriminate on the basis of a disability.'' This 
entire analysis of the burden shifting is coming from the fact 
that the word qualified no longer appears in that first 
section. It's not that you can't discriminate against a 
qualified person with a disability, instead it's just like 
title VII. That you may not discriminate on the basis of 
disability.
    So then you have to, so now it's going to be exactly like 
title VII, the burden of proof will be exactly like title VII, 
okay? What's the law under title VII? Right there in the 
beginning of the plaintiff 's case, what's called the prima 
facie case, under title VII, the fourth element that a 
plaintiff has to prove is that they're qualified for the job, 
because they're trying to raise an inference that they were 
discriminated against based on race or sex. This will now be 
the exact same rule for people with disabilities. They will 
have the same burden of proof that exists under title VII. Why 
should there be a different one for disability than for title 
VII?
    It is the same burden of proof that exists for anyone who 
argues discrimination based on sex or religion or national 
origin, which includes in the prima facie case a requirement 
that you were qualified, that you could demonstrate some 
evidence that you're qualified. It's not said in title VII, 
it's the case law in title VII.
    This entire brew ha-ha about the change of burden of proof, 
is because the language is now going to look just like title 
VII. I'm really curious as to whether now under title VII no 
one has to prove that they're qualified as part of their prima 
facie case.
    I think employers will be very unhappy to hear that 
plaintiffs don't have that requirement. Very unhappy.
    I understand--I feel like this is--someone reads the text 
and says, ``Oh my God, the word qualified has come out of this 
sentence. I guess the whole burden of proof has shifted.'' I 
would suggest that while that might be your first reading of 
the text, it's not the correct legal ruling. And, if you want--
as you pass this bill, in your committee report, to make it 
clear that the burden of proof on qualified remains exactly the 
same, I don't think you will get any resistance from any of us 
who care about disability rights.
    Senator Harkin. That's why I was surprised at your 
response, because I thought we'd put that in there. And so I 
was asking Mr. Percy to get that for me, and it's in section 7 
of the bill. That's why I'm wondering if you had an earlier 
draft of the bill or something like that, because the qualified 
individual is still in section 7.
    Ms. Feldblum. Yes, the section 7, this is where they pick 
up their defense issues, section 7 is also a set of defenses. 
Basically, what we have done in the ADA, and what you continue 
with S. 1881, even though the comment that you'd be qualified 
doesn't appear in the text of title VII, it's just read in by 
the courts, because often someone with a disability is, in 
fact, not qualified--we all recognized, you basically say it 
twice. So, you've moved it in section 7 to make it very clear, 
we are not removing your defense. That you always had, you 
still have it.
    Senator Harkin. That you're not qualified.
    Ms. Feldblum. That you're unqualified. You still have that 
defense.
    Ms. Olson. The current law is different. Under the 
Americans with Disabilities Act it is absolutely clear that the 
burden of proof today is not as an affirmative defense as an 
employer to prove qualified, it is with the plaintiffs in the 
case. That is a complete shift of the burden on that issue to 
the defense as an affirmative defense.
    There's a reason why title VII is different. There's a 
reason why it's different. It's different because title VII 
does not provide affirmative obligations on employers to 
provide affirmative relief to individuals in a protected class. 
Under title VII, you are protected no matter what your sex is, 
because there are reverse discrimination claims. You are 
protected no matter what your race is, what your national 
origin or what your religion. It's different under the 
Americans with Disabilities Act.
    In addition, there's a policy reason as to why the burden 
of proof on the issue of qualified is appropriately on the 
plaintiff. And the reason is, employers are very limited by the 
existing law as to what inquiries they can make in terms of 
qualifications and abilities of existing employees. The facts 
and terms of qualifications are held by the plaintiff, the 
plaintiff in all of the cases--under the Rehab Act, and under 
the Americans with Disabilities Act, have always found, that, 
in fact the plaintiff has the burden of proving that it is not 
a defense.
    Ms. Feldblum. Well, I will be happy to submit to the 
committee, by the way, a legal memo on this issue, which I 
think should definitely set at rest any fears that this is 
different from what the current requirements are. So, let us 
leave it.
    Senator Harkin. I have to find out more about that, because 
I thought we basically had kept it more or less the same. You 
still had to have another hurdle of showing qualified.
    Of course there's always been the defense there that you 
were not qualified, you always have that, the defense always 
had that. How did I get off on that? That's an interesting 
point of law, and it's something I think we have to look at.
    I guess my point was that, and why I put that chart up 
there, because these were all of the disabilities that were 
covered in the Rehab Act, on the left, these were all covered 
in the Rehab Act. Under the ADA today, those same ones are not 
considered a disability.
    Ms. Olson. I disagree with that statement, Senator.
    Senator Harkin. OK.
    Ms. Olson. There are cases that hold, under the Rehab Act, 
that some of those conditions are not covered, because a 
condition, per se, is not covered. It depends on what the 
condition's impact is on the individual. No conditions are per 
se covered, under the Rehabilitation Act as a disability. Under 
both statutes, all of these conditions are generally referred 
to as a mental or physical impairment. The question under both 
statutes really is, are they a disability, because do they 
functionally impact the individual in a major life function?
    I disagree with your chart.
    Senator Harkin. Well, these are the court cases, that's why 
I put it up there.
    Ms. Olson. I've included in my written testimony, the 
examples that are different.
    Senator Harkin. Chai Feldblum.
    Ms. Feldblum. We have read all of the Rehabilitation Act 
cases. Including the ones cited by Ms. Olson in her testimony.
    In 99 percent of these cases, people were just held to be 
people with handicaps. They just were. There was none of this 
long analysis--are you really functioning well or not?
    There were a few outlier cases--which she's managed to find 
and cite all 12--where sometimes a court got connected up with, 
I don't know, and are you really limited in working? They were 
doing exactly what you were saying, Senator Harkin, that these 
courts are focused on whether you can't work, when in fact the 
whole point was that this was supposed to be a law that was 
going to protect people who wanted to work. As I say, there 
were a few of those outlier cases. These cases were discussed 
in 1989 and 1990, because we said, ``Do we have to do something 
to deal with these outlier cases? '' And the consensus decision 
was, we don't, because what the U.S. Supreme Court just said in 
the Arline case, all of those ones that were wrongly decided, 
in our view, under the Rehabilitation Act, would now be taken 
care of under the ``regarded as'' prong, and I have to correct 
a misstatement of fact, here. That term that you said in 
reports that ``temporary minor impairments are not covered,'' 
because they must substantially limit a major life activity--
you absolutely did say that in your reports, you said that 
under prong 1 of the definition, as an explanation.
    Under prong 3, you had clearly said, if someone is fired 
because of an impairment, regardless of how minor, then they're 
covered. There were a few of those cases, they were outlier 
cases then, you thought you took care of them under the third 
prong.
    The U.S. Supreme Court has done two things to your words. 
They've added this requirement of mitigating measures, that now 
makes 99 percent of the cases not be covered, so you are not 
wrong that if you looked at the number of cases of people with 
epilepsy covered under the Rehab Act--tons. The number of cases 
with people with epilepsy not covered? Not covered under the 
ADA? Tons.
    The mitigating measures point shifted so many people out of 
coverage. And then what you thought was the failsafe, which was 
the third prong, got messed up because of this requirement, 
that the employers regard you as limited in a broad range of 
jobs. That's it.
    Oh, one last thing, on the per se--this idea that, Oh my 
goodness, if you just assume that someone who doesn't have an 
arm is a person with a disability, right away, that that's 
somehow a group-based, per se, and counter to the 
individualized assessment that you want for people, this is 
what you said in your Senate Labor report, under the first 
prong, ``substantially limits.''
    For example, a person who is paraplegic will have a 
substantial difficulty in the major life activity of walking. A 
dead person will have a substantial difficulty in hearing oral 
communications, and a person with lung disease will have a 
substantial limitation in the major life activity of breathing. 
Will have.
    It doesn't matter if with the lung disease, now you took 
your medication, and so now you're functioning well--no. You 
thought groups of people would be considered disabled under 
that first prong. We're worried about a group-based analysis. 
You wanted the individualized assessment to see whether the 
person with the paraplegia could do the job--that's the 
individualized assessment, not as to whether they're covered.
    Senator Harkin. No, that's good, one of the reasons why we 
have these hearings is to make the record, and this is making 
the record.
    Let me ask every one of you, just this simply--I'm a 
lawyer, but not a very good one.
    [Laughter.]
    Straightforward, nonlawyer type of question. Just in your 
opinion, because of your background, is there a problem with 
the Americans with Disabilities Act we have now, is there a 
problem with the way that it's being interpreted. Is the way 
the ADA now is impacting people's lives, does it need to be 
changed, rectified, changed, does something need to be done? Or 
is it fine just to go on the way we are?
    Mr. Kemp.
    Mr. Kemp. It needs to be changed. There are great 
weaknesses in the definition. We have changed the way in which 
we approach this, it's a discrimination on the basis of 
disability is what is prohibited. There isn't a day that goes 
by that I am not assigned or ascribed either super-ordinate 
attributes, which is unreal and unfair, and not true. And most 
of the time, there are perceptions of me that are quite 
limiting and quite negative. And whether my prostheses help me 
function independently, which they do, the third prong of the 
definition is critical, because people still perceive me as 
being less than a qualified individual, almost on a daily 
basis.
    We have got to get the definition back to where we thought 
we had it, and where the record showed us in 1990.
    Senator Harkin. OK.
    Mr. Thornburgh.
    Mr. Thornburgh. No question but what the act, as it's been 
interpreted by the U.S. Supreme Court and other subordinate 
courts has had a negative impact on persons with disabilities 
who were involved in those cases. You're not going to address 
them case by case, you're looking for a systemic solution, and 
I think you have come up with a reasonable approach to making 
sure that the original intent of those of us who were involved 
in drafting this act is fulfilled.
    I commend you for that, and I suggest it's good guidance 
for your colleagues in both Houses, in passing this into law.
    Senator Harkin. Thank you very much.
    Mr. Orr, from your personal experience--I hope you're not a 
lawyer, too.
    Mr. Orr. No. That would be a real disability.
    [Laughter.]
    Senator Harkin. Just from your own personal experience. The 
ADA as it is impacting people's lives now, does it need to be 
changed?
    Mr. Orr. Most definitely we need some clarification on the 
ADA. I should not have been told by my employer that I could 
not be able to have a lunch and be able to treat my diabetes. 
And I was told in court responses that I was not disabled, and 
I don't know of any of us here that does not need three squares 
a day.
    Senator Harkin. Do you have sufficient accommodation in 
your job now?
    Mr. Orr. Yes, I do. And----
    Senator Harkin. Let me ask you this--and I thought I was 
right, I thought I had read this, that after all of the dust 
settled on your case, that Wal-Mart did change its policy, is 
that the case?
    Mr. Orr. Yes, they have. In the store that I was a 
pharmacist, they now have a sign posted that the pharmacy will 
be closed for a half an hour while the pharmacist takes a lunch 
break when there's only one pharmacist on duty.
    Senator Harkin. To me, that just says reams. Now, Ms. Olson 
says it's because you had a bad lawyer. You know, that your 
pleading wasn't right. You know, and I guess what we're trying 
to do here, is to make it so that it doesn't just depend upon 
the pleadings itself.
    Mr. Orr. Well, I feel like if I would have had the language 
in the ADA's intent, I should have had protection to be able to 
have continued in the job that I had taken, and had hoped to 
continue with.
    Senator Harkin. Ms. Olson, the way the ADA impacts people's 
lives today, does it need to be changed?
    Ms. Olson. Thank you, Senator Harkin.
    I'd like to be begin by saying, I recognize the frustration 
that you've expressed today in this committee and that others 
have expressed and have testified today, regarding the results 
that have been reached in individual cases. The solution is not 
the change that's been proposed in connection with S. 1881. S. 
1881 is not consistent with legislative history, with the 
language of the statute, that the language of the statute that 
the Americans with Disabilities Act was based upon, the 
Rehabilitation Act. It's not consistent with the balancing of 
rights, and with the focus on the individuals who were intended 
to be impacted by the Americans with Disabilities Act.
    Senator Harkin. What is the solution? I can't change the 
U.S. Supreme Court.
    Ms. Olson I understand, and I understand you're having 
hearings and that you're considering, and reviewing those 
decisions to understand whether there may be some other 
accommodations and I mean that word in a different way--some 
other ways to look at some of the issues that have been raised 
in these cases.
    I am addressing----
    Senator Harkin. Excuse me for interrupting--but getting 
back to my initial question. Is the way the ADA is impacting 
lives today, of people with disabilities, does it need to be 
changed?
    Ms. Olson. It is impacting the lives of individuals with 
disabilities in a very positive way, as I've described at the 
beginning of my testimony, and as I, and many human resource 
professionals and employers who work on issues daily with 
individuals in their workplaces that have disabilities.
    Senator Harkin. But, I'm still trying to get to this, I 
can't get an answer yes or no. I mean, if it does need to be 
changed, I want to know how you think it ought to be changed, 
if it doesn't need to be changed, say so. And then that's quite 
clear cut--it gets down to the point--does Mr. Orr have a 
disability or not? In your opinion, does he have a disability?
    Ms. Olson. There's no question that there was a split in 
the Court as to whether or not he has a disability, and----
    Senator Harkin. I'm asking you--I'm not asking the Court. 
You're here----
    Ms. Olson [continuing]. I understand, but I think that's 
important, as well, not just my opinion, Senator Harkin. My 
opinion as a labor practitioner in this area is that----
    Senator Harkin. You have a lot of knowledge in this area.
    Ms. Olson [continuing]. My opinion is that based on the 
facts as I read them before the 8th Circuit, that I would 
conclude that he does have a disability, as described under the 
Americans with Disabilities Act. But those weren't the facts 
that were presented and that were before the 8th Circuit on the 
lower court's decision. We can't make legislation based on an 
inaccurate or inappropriate presentation of facts in a court 
proceeding.
    In connection with that particular case, I will tell you 
that there's no question that in many, many cases involving the 
exact same conditions that's presented by Mr. Orr, the courts 
have concluded that the individual has a disability. The 
particular information was not presented to the court, and, in 
fact that wasn't the conclusion that was ultimately determined.
    Senator Harkin. But it's not--not to get into a back and 
forth here--but it's not one case. We have several cases. And 
because those cases were at the U.S. Supreme Court level, 
they've filtered down now through the appellants and down into 
the lower courts. And so it's not just one case, it's hundreds 
of cases, now it's thousands of cases to the point where the 
latest statistic I saw was that 97 percent of the cases brought 
are now judged not covered by ADA. Ninety-seven percent.
    Ms. Olson. Senator Harkin----
    Senator Harkin. Something's wrong there when it's 97 
percent, something's wrong.
    Ms. Olson [continuing]. Senator Harkin, the U.S. Supreme 
Court isn't the body that imported the functional approach to 
determining whether somebody has a disability into the law. The 
legislative history, the act itself and the predecessor act, or 
the related act, the Rehabilitation Act, all contain language 
that support that approach. That approach is working in the 
workplaces that I work with every day.
    Senator Harkin. But it sure didn't work for Mr. Orr, nor is 
it working for thousands of Americans out there today that are 
facing this Catch-22 situation, Ms. Olson. Where if they take 
any medicine to mitigate their diabetes or whatever it might 
be, their epilepsy, let's take that, then they're qualified for 
a job, then they become qualified, they can do that job. Once 
they have that job, and the employer finds out they have 
epilepsy, they can be fired, because they're no longer covered 
by ADA.
    That happens a lot in a real life today--and I see these 
cases all the time--what happens is that a person with a 
disability is caught--do I use a prosthetic, do I use a device, 
do I take my medicine? I can get my job now, and I can not just 
get a job bagging groceries, but I can get a job for which I'm 
qualified. But then I lose all of my protections under the ADA.
    Or, do I not take my medicine, and I'm covered by ADA but I 
can't get the job. That is the real-life situation that 
thousands--not just Mr. Orr, not just one or two cases--but 
thousands and thousands of people with disabilities are 
confronting every day in our country. When we talk about 
passing legislation, I don't want to pass the bill just for Mr. 
Orr. That's not what I'm here about, that's what none of us who 
are here--to try to aleve a discrimination that's happening in 
our society, that's what ADA was about, discrimination.
    Now we're having the same kind of discrimination in a very 
adverse way, in a way that Dick Thornburgh and John Kemp and I 
and others worked so hard to get back in 1990.
    Now, if people have suggestions on S. 1881 that it might 
change, it might do something, I'm well open to that. But, 
again, I think that the body of opinion--with all due respect, 
Ms. Olson, is that something needs to be changed. And so, in 
good faith we contacted you, to try to get as much information 
on S. 1881, obviously, we have a long process to go through, if 
people have suggestions and things like that on how it should 
be shaped, or molded or changed--we're open to that. I don't 
have a blind eye, here.
    I was with Lowell Wicker when we started this whole 
process, and what we started with is not exactly what we wound 
up with. We were willing to work with people to make these 
changes.
    The situation, Ms. Olson, I will say to you, cries out for 
something to be done, so that people aren't going in and aren't 
faced with this dilemma that they're faced with now.
    It happens, it's a real-life situation out there, it 
happens every day. And that's why I'm so intent on trying to 
get some legislation that will get back, as Mr. Kemp said, the 
original intent. I can tell you, this was my bill, I spent a 
lot of years of my life on this. And the intent was not to have 
the courts say, ``Well, maybe you, and not you, maybe you and 
not you, depending on how good you are at this and how bad you 
are at that.'' If John Kemp uses his prosthesis better than you 
then he's not disabled, but you are.
    We went through all of this. We decided, no, we don't want 
to get into that, we want this broadly covered, and that's why 
we did that third prong, ``regarded as.'' If all else failed, 
we had the catch, gotcha, on the ``regarded as'' if all else 
failed.
    It seems right now, what's happening is, that has been done 
away with. I don't mean to get so passionate about that. Now if 
you have suggestions and advice, I could look at that.
    I'm sorry to take so long, Ms. Feldblum. My question I was 
going to ask you was, Is the way the ADA is impacting lives 
today, does it need to be changed?
    Ms. Feldblum. Yes.
    [Laughter.]
    Senator Harkin. I guess you've expounded on it more than 
that.
    Ms. Feldblum. But, I mean, honestly, it does, for all of 
the reasons you just said. And let's get to work, and let's try 
to make that happen.
    Senator Harkin. Like I said, I'm willing to take advice and 
suggestions, but if someone says to me, ``No, it's perfectly 
fine the way it is,'' that just doesn't seem right to me, it 
doesn't seem like that's what I'm seeing out there. It's not 
what I'm seeing and getting in from all kinds of things that 
come into my office. I have a full-time person I've had ever 
since I came into Congress, I've got a full-time staff just 
working on disability issues, that's how much I care about this 
issue. I've always had a full-time component of my staff, just 
working on disability issues, good people, smart. This is why 
I'm here, this is what's coming in. I didn't just dream this 
up.
    A lot of people--every disability group in this country is 
coming to me saying, ``We've got to do something.'' Being a 
public servant being a representative, I feel that we must 
respond.
    As I've looked at it, I have also come to the conclusion, 
something must be done. I don't know if S. 1881 is the right 
approach or not, I'm willing to debate that, I mean that's 
open. But to say that things are fine and we can just sit 
there, I don't accept that. I don't accept that.
    Well, I've gone on too long, I sound like a witness myself.
    [Laughter.]
    Is there anything else that anybody would like to add? I've 
kept you here, you've been wonderful to be here this long, is 
there anything anybody else would like to add at all? John, 
anything else you'd like to add to this?
    Mr. Kemp. I have the privilege of serving as the Executive 
Director of the United States Business Leadership Network, 
which is a group of 5,000 companies through 32 affiliates 
around the country. And the Board of Directors strongly 
believes that we should get back to the principles, and support 
the principles of the rights of people with disabilities as 
were defined in the 1990 ADA. Businesses that are interested in 
hiring people with disabilities, doing customer service for 
people with disabilities, and even vendoring to companies owned 
by people with disabilities are interested in getting back to, 
restoring the rights of people with disabilities.
    Senator Harkin. Thank you very much.
    Anybody else have anything they want to add?
    Mr. Thornburgh. Let me just reiterate a point that I made 
in passing during my testimony, Senator, and that is there's a 
deplorable record of employment of persons with disabilities in 
this country, in our society and economy today. And while this 
discussion is useful and the changes that are suggested would 
be helpful, I just wanted to make the point that we can't lose 
sight of the fact that much more has to be done in terms of 
preparing people with disabilities to assume their place in the 
workplace. They want to work, and appropriate education and job 
training on top of the removal of any barriers of 
discrimination and honoring of the principle of accommodation 
could move that process forward by light years.
    I know you share these views, and this isn't necessarily 
the forum to raise those needs as well as ones being discussed 
today, but I think we can't let that pass without notice.
    Senator Harkin. I'm glad you brought it up, thank you.
    That's the one thing that has bedeviled me since the 
passage of the ADA, we made wonderful strides in accommodations 
and transportation, a lot of the things, and that coupled with 
IDEA, main-
streaming it, getting kids into school. But we really haven't 
cracked that nut on employment, what is it, 63 percent of 
people with disabilities are not employed, and of those, I 
don't know the percentage but a high percentage are 
underemployed. In other words, they may be working, but they're 
not working at their full potential for one reason or another.
    It really is a scar on our society, and it's just the one 
thing that we've, just, again, I thought ADA would start moving 
us in that direction, and we haven't made the strides we should 
make in that area, we just haven't done it. And it's very 
frustrating.
    Mr. Orr, do you have anything else to add?
    Mr. Orr. No, the only thing I can say is what happened to 
me. When I bring it up to people I know, my customers in the 
pharmacy and tell them the story of why I'm coming out here to 
testify, and I tell them what had happened to me in my past 
employment, everybody says, ``They can't do that.'' The only 
thing I can say here is that, to testify that, they can and 
they did, the way the thing's set up, and it needs to be 
changed.
    Senator Harkin. Anything else to add?
    Ms. Olson. Only to say that I appreciate the opportunity to 
discuss some of the issues that I see in S. 1881, and I look 
forward to the continued discussion on this issue.
    Senator Harkin. If you have suggestions, let me know.
    Ms. Feldblum.
    Ms. Feldblum. I want to say that I actually would look 
forward to working on a new piece of legislation, like 
something to really deal with the underemployment and 
unemployment. And I wish we weren't having to do a re-do of an 
old piece, absolutely.
    I have to say, and this is just speaking personally, that I 
am looking forward to your leadership and the leadership of the 
members of your committee on both sides of the aisle just the 
way that leadership was demonstrated in the original ADA. I 
absolutely believe that we can get to that bipartisan strong 
support on this re-do, and then we move forward with everything 
else that needs to be done, as well.
    Senator Harkin. Well, I can assure you, we're doing 
everything we can, that's why I wanted to make sure when we 
introduced the legislation on both the House side and the 
Senate side we did it in a bipartisan fashion.
    I've said many times before, this issue is not a partisan 
issue--never has been, I don't want it to become one, it 
shouldn't become one. Some true heroes of this movement have 
been people on the other side of the aisle, like Lowell Weiker 
and Bob Dole, and Dick Thornburgh and Boyden Gray and former 
President Bush and others. And there have been those on our 
side, too.
    It hasn't been partisan. I hope that in that spirit we can 
get this thing moving again, and get something done to solve a 
real-life problem that's out there, and do it in a way that 
garners good national support.
    I think we can do it. We did it in 1988. You know, for 
those of you that weren't around at the time, when we started 
on this no one thought this was ever going to happen. And we 
had a lot of brick bats thrown at us--I can remember in 1980--
well, I came here in 1985, and I had been doing some stuff in 
the House before--minor disability issues, and here in 1985 and 
1986 with Lowell Weiker, at that time, and he was just a 
champion of this. And then Lowell left the Senate, and we kept 
moving ahead on it--boy, those were some pretty dark years, no 
one thought we could ever get this thing done. But people of 
good conscience and people of goodwill--you mentioned Sam 
Skinner, Sam was very heavily involved at that time and we were 
able to get it done.
    I can remember my personal conversations with President 
Bush, first President Bush at that time about it. I mean, he 
really was committed to this, I mean, he got it, he understood 
it.
    I think, I'm just saying, been there, I know what it's 
like. We did it before, we can do it this time, I just hope it 
doesn't take as many years to do it this time, as it did at 
that time.
    We'll move ahead, I thank you all very much, I thank our 
audience for being here. This is the first hearing, we have a 
record started to be made. We will, I'm sure, have other 
hearings, if not this year, early next year, as we, again, try 
to move this legislation forward.
    With that the committee will stand adjourned.
    [Additional material follows.]

                          ADDITIONAL MATERIAL

                   Prepared Statement of Senator Enzi

    Mr. Chairman, thank you for holding this very important 
hearing. Some 17 years ago President George Herbert Walker 
Bush, signed into law the Americans with Disabilities Act, a 
landmark piece of legislation that reflected America's 
fundamental and continuing concern for human rights. The ADA, 
by extending civil rights protections to individuals with 
disabilities, reaffirmed the most basic values of our 
democracy.
    Prior to the passage of the ADA, far too many of our fellow 
American's with disabilities led isolated lives, artificially 
separated from the mainstream of society, and denied the basic 
opportunity to pursue the American dream.
    Today, in America, things are undeniably different for 
persons with disabilities than it was when I was growing up. It 
is certainly different, as well, from 1990 when the ADA was 
enacted. Time, the law, and even science, which has produced 
much to aid those living with disabilities, have all brought 
change. Therefore, it is entirely appropriate for us to review 
the law and its impact. The definition of what constitutes a 
disability; or, what is a substantial limitation of a 
significant life activity; or, what is a reasonable 
accommodation; or, what is sufficient access may all require 
review.
    The ADA was a victory for fundamental civil rights since it 
provided full access to society for those who had been denied 
it simply because of their immutable characteristics--something 
outside of their control.
    Since the passage of the ADA, we have seen significant 
improvements in the employment and economic well-being of 
citizens with disabilities. In 2003, the U.S. Census Bureau 
reported that over the previous 15 years the employment rate 
for working age men with a disability had increased by more 
than 25 percent. Simultaneously, the percentage of individuals 
with disabilities with household incomes at or near the poverty 
level had contracted dramatically. Other evidence of the ADA's 
effect was even more readily apparent. For instance, the 
barriers to mobility once posed by public transportation have 
been largely eliminated. Today, here in the District of 
Columbia, for example, 97 percent of the Metro system is 
accessible to persons with disabilities.
    Yet, as might be expected after only 17 years, challenges 
do remain. Although 60 percent of working age men and 51 
percent of women with disabilities are working, only 35 percent 
of people with disabilities report being employed full time, 
compared to 78 percent of those who do not have disabilities 
(Harris poll). Additionally, according to the U.S. Census, 
earnings for full-time workers disabilities are still 24 
percent less than workers without disabilities. While 26 
percent of adults with disabilities currently have household 
incomes of $15,000 or less, only 9 percent of individuals 
without disabilities have household incomes of $15,000 or less. 
Why is there still a discrepancy between these two populations? 
With the pending reauthorization of the Higher Education Act 
and the Workforce Investment Act, which includes the 
Rehabilitation Act we have the opportunity to address these 
disparities, improve our economic competitiveness and cultivate 
a society of lifelong learners.
    Increasing employment for this population is an incredibly 
important goal, and one I hope this committee will undertake 
with seriousness. In many cases, the accommodation that is 
necessary to empower an individual with a disability to 
function fully in society and live with financial independence 
is just now becoming available. The Assistive Technology Act of 
2004, a bill that I cosponsored along with several of my 
committee colleagues, provides a Federal program connecting 
individuals with disabilities to new technologies so that they 
can achieve even more in school, maintain high levels of 
productivity at work, and participate more fully in society. 
Here again technology is providing answers that were not even 
imaginable 17 years ago when the ADA was written.
    I also want to congratulate many of the people who are here 
in this room today for their involvement in enacting the ADA. 
As I think most of you will agree, one of the reasons it was 
able to be signed into law by President George H.W. Bush was 
because it was crafted in a bipartisan, cooperative way. People 
like Bob Dole and our committee colleagues Orrin Hatch and Tom 
Harkin listened to their counterparts on the other side of the 
aisle, on the other side issues, and on the other side of 
ability. I've said it before, but it needs to be reiterated in 
today's environment. The best way to actually accomplish 
legislative goals is to work together.
    Those of you who have worked with me and my staff on 
legislative issues relating to disabilities know that this is 
the way I like to operate. On bills such as the Vocational 
Rehabilitation Act, which we are still working to get enacted, 
The Combating Autism Act, JWOD, and SAMHSA reauthorization, 
bringing all of the stakeholders around the table was and 
continues to be a critical step in the process.
    From what I have seen, that has not yet been done with the 
legislation introduced by Senator Harkin. Although the text of 
S. 1881 was first introduced over 2 years ago in the House of 
Representatives, the bill has yet to undergo the kind of 
stakeholder review and revision that is necessary, in my view, 
to create a passable legislative product. S. 1881 is the third 
version which has been introduced, yet, to my knowledge no 
changes have been made in the bill. Undergoing such a process 
would have raised, and might have resolved, some of the 
concerns that will be raised today about the bill. For example, 
does it open the definition of disability too far and allow 
virtually everyone to qualify as disabled, at least at some 
point in their life? Does the bill create a default Federal 
``just cause termination'' right of action?
    In negotiation, when you gather the stakeholders around the 
table for the first time, the first thing you do is agree on 
the problem you are working to address. I do not believe that 
step has been taken here. Instead, I believe that some merely 
want to claim that they, and they alone, know precisely what 
Congress intended 17 years ago; and, that many of the reviewing 
Federal Courts have simply gotten it wrong since then. 
Therefore, no further discussion is necessary since we merely 
need to restore that which was originally intended. 
Unfortunately, that claim of a monopoly on the truth is sure to 
stand in the way of any meaningful discussion or progress. The 
process must respect the fact that reasonable people may 
disagree; and, that divining the precise intent of Congress is 
a speculative claim at best. Productive dialogue rarely begins 
with an absolutist position. I believe we need to begin by 
discussing and agreeing on the problem, instead of beginning 
with a proposed solution which is clearly overbroad. I look 
forward to today's proceedings.
   Prepared Statement of John R. Vaughn, Chairman, National Council 
                             on Disability
    The National Council on Disability (NCD) would like to thank the 
committee for this opportunity to provide testimony in support of the 
need to restore the Americans with Disabilities Act (ADA), and to share 
information the NCD has learned about the impact on people with 
disabilities resulting from a series of Supreme Court interpretations 
of the definition of ``disability'' under the ADA.
                              introduction
    NCD is an independent Federal agency, composed of 15 members 
appointed by the President and confirmed by the Senate. NCD's purpose 
is to promote policies and practices that guarantee equal opportunity 
for all individuals with disabilities, regardless of the nature or 
severity of the disability, and to empower individuals with 
disabilities to achieve economic self-sufficiency, independent living, 
and integration into all aspects of society.
    NCD's duties under its authorizing statute include gathering 
information about the implementation, effectiveness, and impact of the 
ADA.\1\ In keeping with this requirement, one of NCD's monitoring 
activities has been to analyze the Supreme Court cases interpreting the 
ADA. From 2002 to 2004, NCD produced a series of 19 policy briefs 
analyzing the Supreme Court's ADA cases \2\ and their ramifications on 
subsequent Federal court cases. This work culminated in a comprehensive 
report, Righting the ADA,\3\ in which NCD proposed language for an ADA 
Restoration Act.
    The Supreme Court has issued several decisions relating to the 
definition of ``disability'' under the ADA. These decisions have 
narrowed the definition of ``disability,'' restricting substantially 
the number of individuals entitled to protection under the law. NCD has 
reviewed the history and evolution of the definition of ``disability,'' 
analyzed the Congressional intent with respect to coverage, reviewed 
the effect of EEOC regulations and guidance on the definition, and 
examined the Supreme Court decisions involving the definition of 
``disability.'' \4\ NCD concludes that the Supreme Court's 
interpretation of the definition of ``disability'' under the ADA has so 
altered the ADA that the majority of people with disabilities now would 
have no Federal legal recourse in the event of discrimination, 
particularly in instances of employment discrimination. An ADA 
Restoration Act is urgently needed to restore the ADA's protections 
against disability-based discrimination for all Americans.
                  ncd's role in the passage of the ada
    NCD played a key role in the inception of the ADA.\5\ NCD first 
proposed the concept for the ADA, Federal legislation to address the 
discrimination experienced by people with disabilities, in its 1986 
publication, Toward Independence: An Assessment of Programs and Laws 
Affecting Persons with Disabilities--With Legislative Recommendations. 
\6\ The first published draft of the law was included in NCD's report, 
On the Threshold of Independence \7\ in early 1988. The ADA was then 
introduced in the House and the Senate in April of that year.
    While the bill was introduced too late in the congressional session 
to be voted on by both chambers, NCD continued to play a pivotal role 
in the passage of the bill. NCD members continued to meet with various 
members of the disability community. NCD released another report, 
Implications for Federal Policy of the 1986 Harris Survey of Americans 
with Disabilities, which evaluated poll results and made 
recommendations based on the findings.
    On Capitol Hill, Congressman Major Owens created the Congressional 
Task Force on the Rights and Empowerment of Americans with 
Disabilities, which researched the extent of discrimination. The Task 
Force was chaired by former NCD Vice Chairperson Justin Dart, and its 
coordinator was former NCD Executive Director Lex Frieden. Revisions 
were made to the initial draft, with the assistance of national 
disability consumer organizations. Strong bipartisan support for the 
ADA had developed by the time Congress returned for the next session. 
Both the House and Senate passed similar bills and, in mid-July, both 
chambers passed the final version of the ADA, which was signed into law 
by President George H.W. Bush on July 26, 1990.
                definition of ``disability'' in the ada
    Congress modeled the definition of disability in the ADA on Section 
504 of the Rehabilitation Act, which had been construed to encompass 
both actual and perceived limitations, and limitations imposed by 
society. The definition adopted by Congress and the legislative history 
of the ADA demonstrate the intention to create comprehensive coverage 
under the statute. This definition of ``disability'' was conceived as a 
broad element that would extend statutory protection to anyone who had 
been excluded or disadvantaged by a covered entity on the basis of a 
physical or mental impairment, whether real or perceived.
    The Supreme Court's decision in School Board of Nassau County v. 
Arline \8\ was the leading legal precedent on the definition of 
disability when Congress was considering the ADA. Several committee 
reports regarding the ADA expressly relied on the Arline ruling in 
discussing the definition of disability. In Arline, the Court took an 
expansive and nontechnical view of the definition of ``disability.'' 
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.\9\ 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.'' 
\10\
    To ensure that the definition of disability and other provisions of 
the ADA would not receive restrictive interpretations, Congress 
included a requirement 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.\11\ 
At the time of the ADA's enactment, it was not contemplated that 
disability discrimination cases would come to be more about determining 
the extent of someone's disability, rather than about whether 
discrimination, in fact, occurred.\12\
    For several years 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.
       the supreme court changes the ada definition of disability
    Beginning with its decision in Sutton v. United Airlines in 1999, 
the U.S. Supreme Court started to turn its back on the broad 
interpretation of disability endorsed by the Court in the Arline 
decision.\14\ By the time of the Toyota 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.'' \15\ This position is directly contrary to what the 
Congress and the President intended when they enacted the ADA.
    A narrow interpretation of the term ``disability'' under the ADA 
excludes many people whom Congress intended to protect. Recognizing 
that discrimination on the basis of disability takes place in various 
ways against people with various types of disabilities, Congress had 
adopted a time-tested and inclusive, three-prong definition of 
``disability'' in the ADA--protecting not only individuals with actual 
disabilities, but also those with a history of having a disability or 
who are regarded as having a disability. Congress was entitled to 
expect that this definition would be interpreted expansively because 
the courts and regulations had interpreted the identical definition in 
the Rehabilitation Act broadly. NCD views as draconian and erroneous 
the stereotypical view of disability that would extend ADA protection 
only to those who are so severely restricted that they are unable to 
meet the essential demands of daily life.\16\
    In June 1999, the Supreme Court decided Sutton v. United 
Airlines,\17\ a case involving pilots needing corrective lenses, and 
Murphy v. United Parcel Service,\18\ a case involving a man with high 
blood pressure. In both cases, the Court held that, in determining 
whether an individual is substantially limited in a major life 
activity, courts may consider only the limitations of an individual 
that persist after taking into account mitigating measures, e.g., 
medication or auxiliary aids and services and any negative side effects 
the mitigating measures may cause.
    On the same day in 1999, the Supreme Court decided Albertson's v. 
Kirkingburg,\19\ a case involving a man who was blind in one eye. The 
Court held in Kirkingburg that a ``mere difference'' in how a person 
performs a major life activity does not make the limitation 
substantial; how an individual has learned to compensate for the 
impairment, including ``measures undertaken, whether consciously or 
not, with the body's own systems,'' also must be taken into 
account.\20\ These three cases, Sutton, Murphy and Kirkingburg are 
often referred to as the ``Sutton trilogy.''
    The result of these decisions is that people who Congress clearly 
intended to be covered by the ADA,\21\ such as people with 
epilepsy,\22\ diabetes,\23\ depression,\24\ and hearing loss,\25\ are 
now being denied employment and refused reasonable accommodations 
because of their disability or the mitigating measures they use, and 
courts refuse to hear their cases, regardless of how egregious their 
employers' actions.
    These decisions have resulted in courts now making elaborate 
inquiries into all aspects of the personal lives of ADA plaintiffs in 
order to determine whether, and to what extent, mitigating measures 
actually alleviate the effects of the disability--none of which is 
relevant to the question of whether discrimination occurred. Such 
inquisitions about the extent of people's disabilities is inconsistent 
with other provisions of the ADA that sharply restrict the use of 
inquiries about the nature and extent of disabling conditions and of 
medical information about an individual's limitations.\26\
    When elaborate inquiries are called for by the ADA, they should be 
about the individual's abilities--not his or her disabilities.\27\ Not 
only are elaborate inquiries into the extent of a person's disability 
demeaning and extremely costly in terms of litigation resources, they 
miss the point. It does not matter if medication stabilizes a person's 
blood sugar if the employer harbors an irrational fear that it will not 
do so, and terminates the employee. It does not matter how effective 
someone's hearing aids are if an employer refuses to hire him because 
the employer believes his insurance rates will increase if he hires a 
person with a hearing impairment. It does not matter if working the day 
shift would eliminate someone's risk of seizures if the employer 
refuses the employee's request to switch from the night shift to the 
day shift.
    By focusing on how well mitigating measures alleviate the effects 
of a disability, the Supreme Court has denied discrimination protection 
to people who are likely to be capable of doing the job. It is a rare 
plaintiff who is able to successfully challenge even the most egregious 
and outrageous discrimination involving a condition that can be 
mitigated.
    The Supreme Court has also changed the meaning of ``substantial 
limitation of a major life activity'' in ways that screen out even more 
people with disabilities that Congress intended to protect. Closely 
tracking the Rehabilitation Act, the first prong of the ADA definition 
of disability provides that a condition constitutes a disability if it 
``substantially limits one or more of the major life activities of such 
individual.'' \28\ In Toyota v. Williams, the Court changed 
substantially limits to mean ``prevents or severely restricts.'' \29\
    In the Williams case, the Court also decided that to be 
substantially limited in a major life activity, a person must be 
substantially limited in an activity ``of central importance to most 
people's daily lives,'' and held that ``substantially limited in a 
major life activity'' must be ``interpreted strictly to create a 
demanding standard for qualifying as disabled.'' \30\ The phrase ``of 
central importance to most people's daily lives'' has led to extensive 
questioning about an individual's ability to brush his or her teeth, 
bathe, dress, stand, sit, lift, eat, sleep, and interact with 
others.\31\ It has led to contradictory rulings by Federal courts about 
whether activities such as communicating, driving, gardening, crawling, 
jumping, learning, shopping in the mall, performing house work, and 
even working and living are ``major life activities.'' \32\ In hundreds 
of cases of alleged disability-based discrimination, people with 
disabilities have had to spend their resources litigating such issues, 
often with the question of whether disability-discrimination occurred 
never being addressed.
    The cases discussed here represent only a portion of the 
problematic issues raised by a string of decisions by the Supreme Court 
which have significantly diminished the civil rights of people with 
disabilities. \33\ The ADA Restoration Act is needed to return the 
focus to examination of the relevant facts of the case when disability 
discrimination is alleged. Can the person with a disability perform the 
essential functions of the job, with reasonable accommodations, if 
necessary? Would the reasonable accommodation pose an undue hardship on 
the employer? Would the person's mental or physical impairment pose a 
safety risk to others that could not be eliminated by a reasonable 
accommodation? Did the employer discriminate against the employee on 
the basis of a real or perceived disability?
    As NCD declared in its Righting the ADA report:

          The Court's position that the definition of disability is to 
        be construed narrowly represents a sharp break from traditional 
        law and expectations. It ignores and contradicts clear 
        indications in the statute and its legislative history that the 
        ADA was to provide a comprehensive prohibition of 
        discrimination based on disability, and legislative, judicial, 
        and administrative commentary regarding the breadth of the 
        definition of disability. It also flies in the face of an 
        established legal tradition of construing civil rights 
        legislation broadly. Congress knowingly chose a definition of 
        disability that to that time had been interpreted broadly in 
        regulations and the courts; it was entitled to expect the 
        definition would continue to receive a generous reading.
          In crafting the ADA, Congress did not treat nondiscrimination 
        as something special that can be spread too thin by granting it 
        to too many people. Unlike disability benefits programs, such 
        as Supplemental Security Income (SSI) and Social Security 
        Disability Insurance (SSDI), which are predicated on 
        identifying a limited group of eligible persons to receive 
        special benefits or services that other citizens are not 
        entitled to obtain, and for which the courts have sought to 
        guard access jealously, the ADA is premised on fairness and 
        equality, which should be generally available and expected in 
        American society. The Court's harsh and restrictive approach to 
        defining disability places difficult, technical, and sometimes 
        insurmountable evidentiary burdens on people who have 
        experienced discrimination.\34\

    Given the extensive congressional record regarding findings of 
discrimination against many types of disabilities and the broad 
coverage of the ensuing ADA regulations, the general understanding 
following enactment of the ADA was that anyone experiencing disability-
related discrimination had a remedy in court. People with disabilities 
of all types presume they are covered by the ADA when many of them now 
are not.
                       restoration, not expansion
    The ADA was intended to apply to every person who experiences 
discrimination on the basis of disability; protection from 
discrimination is not a special service reserved for a select few. The 
law was crafted to extend protection even to people who are not 
actually limited by their conditions but who experience adverse 
treatment based on fear, stereotyping, and stigmatization.
    The ADA Restoration Act supports the purpose of the ADA, to 
prohibit discrimination, by removing the obstacle of forcing a person 
to prove that he or she has a sufficiently severe impairment to justify 
protection under the law. The language in the ADA Restoration Act still 
requires a plaintiff to show that discrimination occurred based on his 
or her real or perceived physical or mental impairment to successfully 
bring a claim under the ADA. The ADA still protects only those who can 
prove discrimination based on that impairment, and, in addition, in the 
employment context, individuals who can demonstrate that they are 
qualified to perform the job.
    Congress balanced the interests at stake when it passed the ADA 17 
years ago. Congress included, for instance, elements intended to 
protect the interests of small businesses, and these elements remain in 
place under the ADA Restoration Act, including: the exemption for small 
employers, the undue hardship limitation, the readily achievable limit 
on barrier removal in existing public accommodations, the undue burden 
limitation regarding auxiliary aids and services, and the elevator 
exception for small buildings, among others.\35\ The bill currently 
before Congress restores the original intent of a carefully crafted 
law.
                       veterans with disabilities
    NCD is particularly concerned about the impact of the developments 
in the ADA case law on veterans with disabilities. Service members 
returning from the current conflict in Iraq and Afghanistan are 
experiencing a very high incidence of disabilities, including post-
traumatic stress disorder and traumatic brain injuries.\36\ Veterans 
also experience higher than average rates of chronic health conditions 
after serving in armed conflicts.\37\ Veterans are nearly three times 
as likely as the general population to develop diabetes.\38\ According 
to the Epilepsy Foundation,\39\ the high number of veterans 
experiencing traumatic brain injuries portends an increase in the 
incidents of epilepsy among this group, as traumatic brain injury is a 
significant risk factor for developing epilepsy. As a result of 
exposure to explosions and close-range weapons fire, veterans also 
experience much higher than average incidents of hearing loss.\40\ 
Given the high number of veterans returning from the current conflicts 
with disabilities, and the likelihood that a high number of returning 
veterans will experience the very types of chronic health conditions 
the Supreme Court has deemed ineligible for protection from disability-
based discrimination in the workplace, it becomes even more urgent that 
Congress act now to restore the ADA so that veterans with disabilities 
who are able to work are not subjected to employment discrimination.
                               conclusion
    The Americans with Disabilities Act was designed to prohibit 
disability-based discrimination against all Americans, whether or not 
they actually have a disability. The Supreme Court has issued many 
decisions interpreting the ADA since its enactment, limiting the scope 
of the ADA and transforming it into a ``special'' protection for a 
select few. The result is that disability discrimination now occurs 
with impunity, particularly in the workplace. Unless and until Congress 
takes action to correct the course of the ADA, most Americans are no 
longer protected from disability-based discrimination. NCD urges 
Congress to act quickly to re-instate the scope of protection Congress 
initially provided in the ADA.
                            References Cited
    1. For a list of NCD's publications on the ADA: http://www.ncd.gov.
    2. See NCD's Policy Brief Series: Righting the ADA at http://
www.ncd.gov/newsroom/publications/2003/policybrief.htm.
    3. National Council on Disability, Righting the ADA (2004), 
available at http://www.ncd.gov/newsroom/publications/2004/
righting_ada.htm.
    4. See National Council on Disability, Americans with Disabilities 
Act Policy Brief Series: Righting the ADA--No. 6, Defining 
``Disability'' in a Civil Rights Context: The Courts' Focus on Extent 
of Limitations as Opposed to Fair Treatment and Equal Opportunity, 
(2003), at http://www.ncd.gov/newsroom/publication/extentoflimitations 
.html.
    5. For additional information, see NCD's 1997 publication, Equality 
of Opportunity: the Making of the Americans with Disabilities Act, 
http://www.ncd.gov/newsroom/publications/1997/equality.htm. NCD's role 
with respect to the ADA is also described in the 2004 report National 
Council on Disability: 20 Years of Independence, http://www.ncd.gov/
newsroom/publications/2004/publications.htm.
    6. National Council on Disability, Toward Independence: An 
Assessment of Programs and Laws Affecting Persons with Disabilities--
With Legislative Recommendations (1986), available at http://
www.ncd.gov/newsroom/publications/1986/toward.htm.
    7. National Council on Disability, On the Threshold of Independence 
(1988), available at http://www.ncd.gov/newsroom/publications/1988/
threshold.htm.
    8. School Board of Nassau County v. Arline, 480 U.S. 273, 284 
(1987).
    9. Id. at 281.
    10. Id. at 279.
    11. 42 U.S.C. Sec. 12201(a).
    12. For additional information, see NCD's 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 at 
http://www.ncd.gov/newsroom/publications/2003/policybrief.htm.
    13. Morrow v. City of Jacksonville, 941 F. Supp. 816, 823 n. 3 
(E.D.Ark. 1996).
    14. Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999).
    15. Toyota Motor Mfg., Ky., Inc. v. Williams 534 U.S. 184, 197-98 
(2002).
    16. National Council on Disability, National Council on Disability: 
20 Years of Independence (2004), available at http://www.ncd.gov/
newsroom/publications/2004/twentyyears.htm.
    17. Sutton, 527 U.S. 471 (1999).
    18. Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999).
    19. Albertson's Inc. v. Kirkingburg, 527 U.S. 555 (1999).
    20. Id. at 564-67.
    21. See S. Rep. No. 116, 101st Cong., 1st Sess. 23 (1989); H.R. 
Rep. No. 485 part 2, 101st Cong., 2d Sess. 52 (1990).
    22. See Todd v. Academy Corp., 57 F. Supp. 2d 448, 453-54 (S.D. 
Tex. 1999).
    23. See Nordwall v. Sears, Roebuck & Co., 46 Fed. App. 364, 2002 WL 
31027956 (7th Cir. 2002) (unpublished).
    24. See Spades v. City of Walnut Ridge, 186 F.3d 897, 900 (8th Cir. 
1999).
    25. See Martell v. Sparrows Point Scrap Processing, 214 F. Supp. 2d 
527 (MD. 2002).
    26. 42 U.S.C. 12112(d)(2)(A) (``Except as provided in paragraph 
(3), a covered entity shall not conduct a medical examination or make 
inquiries of a job applicant as to whether such applicant is an 
individual with a disability or as to the nature or severity of such 
disability.''); 42 U.S.C. 12112(d)(2)(B) (``A covered entity may make 
inquiries into the ability of an employee to perform job-related 
functions.''); 42 U.S.C. 12112(d)(4)(A) (``A covered entity shall not 
require a medical examination and shall not make inquiries of an 
employee as to whether such employee is an individual with a disability 
or as to the nature or severity of the disability, unless such 
examination or inquiry is shown to be job-related and consistent with 
business necessity.'').
    27. Id.
    28. 42 U.S.C. Sec. 12102(2)(A).
    29. Toyota, 534 U.S. 184 (2002).
    30. Id.
    31. National Council on Disability, Policy Brief Series: Righting 
the ADA, No. 13, The Supreme Court's ADA Decisions Regarding 
Substantial Limitation of Major Life Activities (2003), at http://
www.ncd.gov/newsroom/publications/2003/limitation.htm.
    32. Id.
    33. See NCD, Righting the ADA (2004), available at http://
www.ncd.gov/newsroom/publications/2004/righting_ada.htm. More detailed 
descriptions of the specific issues and problems are presented in the 
Righting the ADA series of policy briefs published on NCD's Web site at 
www.ncd.gov/newsroom/publications/2003/policybrief.htm.
    34. National Council on Disability, Righting the ADA (2004) at 11, 
available at http://www.ncd.gov/newsroom/publications/2004/
righting_ada.htm#IIA.
    35. For more information, see NCD statement on the subject of the 
Notification Act at http://www.ncd.gov/newsroom/news/2003/r03-408.htm.
    36. According to the 2004 Report of the Special Committee on Post-
Traumatic Stress Disorder, established by Congress in 1984 to monitor 
this problem, 40 percent of casualties returning from Iraq and 
Afghanistan to Walter Reed Army Medical Center reported symptoms 
consistent with PTSD.
    37. National Academy of Sciences, Gulf War Veterans Experience 
Health Symptoms, But Not Unique Syndrome: Elevated Rates of ALS, 
Psychological Conditions Found (Sept. 12, 2006).
    38. U.S. Department of Health and Human Services, HHS and VA to 
Target Diabetes, Obesity Among American Veterans (Feb. 27, 2006) http:/
/www.hhs.gov/news/press/2006pres/20060227.html (visited Nov. 9, 2007).
    39. Brenda Patoine, High Rate of Head Injuries in Iraq Soldiers 
Portends Potential Wave of Epilepsy, http://www.epilepsyfoundation.org/
epilepsyusa/tbi-special- 
report. cfm (visited Nov. 9, 2007).
    40. National Academy of Sciences, Institute of Medicine, Noise and 
Military Service: Implications for Hearing Loss and Tinnitus (Sept. 22, 
2005).
  Prepared Statement of The American Civil Liberties Union, Caroline 
 Fredrickson, Director, ACLU Washington Legislative Office and Joanne 
      Lin, Legislative Counsel, ACLU Washington Legislative Office
     in support of the americans with disabilities act restoration 
                         act of 2007 (s. 1881)
    The American Civil Liberties Union (ACLU) applauds the Senate 
Health, Education, Labor, and Pensions 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 Senators Harkin (D-IA), 
Specter (R-PA), and Kennedy (D-MA) 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\
---------------------------------------------------------------------------
    \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 in the late 1980s and 1990.
    \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.
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    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    Unfortunately 17 years after enactment of the ADA, the promise of 
equal opportunity in employment has gone unfulfilled for 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 are at 
odds with this regimen and 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 who diligently manage their condition or 
impairment 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 (S. 1881) as a 
necessary fix to this Catch-22 problem. The ADA Restoration Act 
restores Congress' 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.
 Prepared Statement of the Disability Policy Collaboration (In Support 
              of the ADA Restoration Act of 2007 (S. 1881)
  the disability policy collaboration of the arc and united cerebral 
   palsy urges congress to keep its promise to end unfair employment 
                             discrimination

    Although the Americans with Disabilities Act (ADA) of 1990 has 
resulted in access to thousands of public accommodations and government 
services that people with disabilities were never before able to enjoy, 
the full promise of this law is yet unfulfilled. Many people with 
disabilities who want to work and be treated fairly in the workplace 
face the same continued discrimination that the ADA sought to 
eliminate.
    The Supreme Court and other court decisions have narrowly 
interpreted the definition of disability under the ADA, which is 
reasonably defined as: (A) a physical or mental impairment that 
substantially limits one or more major life activities; (B) a record of 
such an impairment; or (C) being regarded as having such an impairment.
    Instead of protecting people with disabilities, the courts have 
created a no-win situation for people with disabilities in the 
workplace. People with disabilities are often deemed ``too disabled'' 
to do the job but not ``disabled enough'' to be protected by the law. 
The following cases exemplify this unfortunate Catch-22:

     A circuit court upheld a lower court's refusal to hear the 
case of a man with an intellectual disability. Writing for the 
majority, the judge wrote that it wasn't clear under the ADA ``whether 
thinking, communicating and social interaction are `major life 
activities.' '' \1\
---------------------------------------------------------------------------
    \1\ Littleton v. Wal-Mart Stores, Inc., No. 05-12770, 2007 WL 
1379986, at *1 (11th Cir. May 11, 2007).
---------------------------------------------------------------------------
     A pharmacist with diabetes was fired for taking a break to 
eat during his 10-hour shift. He needed a brief lunch break to properly 
control his diabetes. He was fired because he continued to manage his 
disability by the best practice guidelines of proper food intake. The 
court deemed he was not disabled enough to be protected under the ADA 
because his diabetes was so well-managed--``Not disabled enough'' for 
protection under the ADA and yet ``too disabled'' to work.\2\
---------------------------------------------------------------------------
    \2\ Orr v. Wal-Mart Stores, Inc., 297 F.3d 720, 722 (8th Cir. 
2002).
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     A stock merchandiser with lifelong epilepsy was fired 
after a 5-day absence related to his condition. The court held he was 
not protected by the ADA because he typically experienced seizures once 
a week, lasting only 5 to 15 seconds, and his medication caused only 
``some'' adverse side effects. He was fired because of his disability, 
but the court refused to hear his case because he was ``not disabled 
enough.'' \3\
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    \3\ Todd v. Academy Corp., 57 F. Supp. 2d 448, 449-50 (S.D. Tex. 
1999).
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       restoring congress' intent when it passed the ada in 1990
    ``When we passed the [ADA] there was common agreement on both sides 
of the aisle, and on the part of President George Herbert Walker Bush 
and his aides, that the law was designed to protect any individual who 
is treated less favorably because of a current, past, or perceived 
disability . . . In recent years, the courts have ignored Congress' 
clear intent as to who should be protected under the ADA. And the 
courts have narrowed the definition of who qualifies as an `individual 
with a disability.' As a consequence, millions of people we intended to 
be protected under the ADA--including people with epilepsy, diabetes, 
and cancer--are not protected any more.'' (Senator Tom Harkin when he 
introduced the ADA Restoration Act of 2007)
    The bipartisan ADA Restoration Act of 2007 will amend the ADA to 
shift the focus from requiring individuals with disabilities to 
``prove'' their disability to determining whether a person has 
experienced discrimination ``on the basis of disability.'' By 
eliminating the Catch-22, the ADA Restoration Act restores the right to 
be judged based solely on one's qualifications for the job, bringing 
the ADA in line with other civil rights laws and requiring the courts 
to interpret the law fairly.
    The Disability Policy Collaboration strongly urges Congress to pass 
the ADA Restoration Act (S. 1881), restoring the original intent of 
Congress when it passed the ADA in 1990.
                                 ______
                                 
            National Council on Independent Living,
                                     Washington, DC. 20036,
                                                 November 15, 2007.
Hon. Edward M. Kennedy, Chairman,
Health, Education, Labor, and Pensions Committee,
U.S. Senate,
Washington, DC. 20510.

Hon. Michael B. Enzi, Ranking Member,
Health, Education, Labor, and Pensions Committee,
U.S. Senate,
Washington, DC. 20510.
    Dear Chairman Kennedy, Ranking Member Enzi and Distinguished 
Members:  We are writing on behalf of the National Council on 
Independent Living (NCIL) to strongly urge you to support the ADA 
Restoration Act of 2007, S. 1881. Since enactment of the Americans with 
Disabilities Act of 1990, people with disabilities have made 
substantial strides toward societal inclusion and full participation. 
However, in recent years, a number of Supreme Court decisions have 
significantly reduced the protections available to people with 
disabilities in employment settings. Restoring the act to Congress' 
original intent would enable people with disabilities to secure and 
maintain employment without fear of losing their job because of their 
disability. Congress clearly intended to cover the full spectrum of 
disabilities, both visible and invisible.
    NCIL is the oldest cross-disability, national grassroots 
organization run by and for people with disabilities. Our members 
include Centers for Independent Living, State Independent Living 
Councils, people with disabilities, and other disability rights 
organizations. As a membership organization, NCIL advances Independent 
Living (IL) and the rights of people with disabilities through 
consumer-driven advocacy. NCIL envisions a world in which people with 
disabilities are valued equally and participate fully.
    A key part of our work is to implement the integration mandate of 
the Americans with Disabilities Act by moving people with disabilities 
out of institutions and into community-based settings so they can 
control their own destinies and live independently. NCIL also works 
tirelessly to ensure that the Americans with Disabilities Act and other 
crucial civil rights laws are not only fully implemented, but also 
enforced.
    We welcome the opportunity to comment on this critical civil rights 
law and look forward to a robust discussion of ways in which we can 
work together to achieve the full promise of the ADA.
    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, the National Council on Disability documented in its 
Righting the ADA report, 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 money 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 IL movement. The fact that only 7 percent of persons with 
disabilities own their own homes and roughly 30 percent 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 the ADA Restoration Act 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 S. 
1881/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 the ADA Restoration Act 
of 2007 ``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 S. 1881 to this effect.
    The problem with the Supreme Court's and lower courts' decisions 
referenced in S. 1881/H.R. 3195's ``Findings and Purposes'' is that 
they have not even considered whether there has been discrimination 
based on disability. 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 Senators Tom Harkin and Arlen Specter and in the House by Majority 
Leader Steny Hoyer, Rep. James Sensenbrenner, and co-sponsored by more 
than 220 of their colleagues to remedy decades of purposeful, 
unconstitutional discrimination and as such should be given a broad, 
rather than a narrow, construction.

     Funding for ongoing public education on the requirements 
of the ADA, and adequate funding for strong enforcement by the U.S. 
Department of Justice, U.S. 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, S. 1881/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. Deb can be reached at (202) 207-0334 or [email protected].
            Sincerely,
                                         John A. Lancaster,
                                                Executive Director.

                                            Kelly Buckland,
                                                         President.
                                 ______
                                 
       Response to Questions of Senator Hatch by Camille A. Olson
    Question 1. Does either the Rehabilitation Act of 1973 or the 
Americans with Disabilities Act equate an impairment with a disability 
or does each require that, to constitute a disability, an impairment 
substantially limit a major life activity?
    Answer 1. Neither the Rehabilitation Act of 1973 \1\ nor the 
Americans with Disabilities Act \2\ equates an impairment with a 
disability. Under both statutes, an impairment must substantially limit 
a major life activity to meet the definition of a ``disability.'' In 
enacting the ADA, Congress adopted the definition of ``individual with 
a disability'' from Section 504 of the Rehabilitation Act. Both 
statutes define an individual with a disability using a functional 
approach, based on the effect the impairment has on the individual's 
life.\3\
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    \1\ Pub. L. No. 93-112, amended by Pub. L. No. 93-516, 88 Stat. 
1617 (1974) (codified at 29 U.S.C. Sec. 701 et seq.)
    \2\ Pub. L. No. 101-336, 104 Stat. 327 (1990) (codified at 42 
U.S.C. Sec. Sec. 12101-12213 (1994); 47 U.S.C. Sec. 225711 (2001)).
    \3\ 42 U.S.C. Sec. 12101(2); 29 U.S.C. Sec. 705(20)(A).

    Question 2. Has any State or Federal court ever ruled that, under 
the Rehabilitation Act, any particular condition is a disability 
without regard to its effect on a major life activity? Has any State or 
Federal court ruled that, under the Rehabilitation Act, any particular 
condition is not a disability regardless of its effect on a major life 
activity? If so, in either case, please provide citations to such 
rulings. Please keep in mind that I am not asking whether or not an 
individual with a particular impairment was found to be disabled, but 
whether or not a particular impairment was per se found to constitute a 
disability.
    Answer 2. No court has recognized a per se disability under the 
Rehabilitation Act. Instead, courts engage in an individualized 
analysis to determine the existence of a disability.\4\ Thus, under the 
Rehabilitation Act, depending on the condition's impact on the 
individual, the same impairment can rightly lead to findings that one 
individual is disabled while another individual with the same 
impairment is not.\5\
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    \4\ See, e.g., Rezza v. U.S. Dep't of Justice, No. 87-6732, 1988 WL 
48541, at *2 (E.D. Pa. May 16, 1988) (The analysis of ``who is a 
handicapped person under the [Rehabilitation] Act is best suited to a 
`case by case determination.' '') quoting Forrisi v. Bowen, 794 F.2d 
931, 933 (4th Cir. 1986); E.E. Black, Ltd. v. Marshall, 497 F. Supp. 
1088, 1099 (D. Haw. 1980) (whether a disability is a qualifying 
handicap under the Rehabilitation Act requires a case-by-case 
analysis); Diaz v. United States Postal Service, 658 F. Supp. 484 (E.D. 
Cal. 1987) (employee with back problems did not have disability under 
the Rehabilitation Act because the back problems did not substantially 
limit major life activities); Schuett Investment Co. v. Anderson, 386 
N.W.2d 249 (Minn. App. 1986) (because individual's back injury 
substantially limited his ability to perform manual tasks he was 
disabled under the Rehabilitation Act); Sharon v. Larson, 650 F. Sup. 
1396 (E.D.Pa. 1986); Padilla v. Topeka, 708 P.2d 543 (Kan. 1985) 
(myopic applicant for police officer position was not handicapped under 
the Rehabilitation Act).
    \5\ Compare Pridemore v. Rural Legal Aid Soc., 625 F. Supp. 1180 
(S.D. Ohio 1985) (individual with cerebral palsy was not substantially 
limited in a major life activity and, therefore, not disabled under the 
Rehabilitation Act); with Fitzgerald v. Green Valley Area Educ. Agency, 
589 F. Supp. 1130 (S.D. Iowa 1984) (individual with cerebral palsy and 
left side hemiplegia was substantially limited in a major life activity 
and, therefore, disabled under the Rehabilitation Act).

    Question 3. Has any State or Federal court ever ruled that, under 
the ADA, any particular condition is a disability without regard to its 
effect on a major life activity? Has any State or Federal court ruled 
that, under the ADA, any particular condition is not a disability 
regardless of its effect on a major life activity? If so, in either 
case, please provide citations to such rulings. Please keep in mind 
that I am not asking whether or not an individual with a particular 
impairment was found to be disabled, but whether or not a particular 
impairment was per se found to constitute a disability.
    Answer 3. Similar to holdings under the Rehabilitation Act, courts 
have consistently held that there are no per se disabilities under the 
ADA.\6\ Conversely, courts have not ruled that any particular condition 
is not a disability regardless of its effect on a major life 
activity.\7\ Rather, courts generally engage in an individualized 
analysis to determine whether an individual with an impairment is also 
an individual with a disability.\8\
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    \6\ See generally Bragdon v. Abbott, 524 U.S. 624 (1998) 
(Individual with AIDS is disabled under the ADA due to substantial 
limitation on major life activity of reproduction); Swart v. Premier 
Parks Corp., 88 Fed. Appx. 366 (10th Cir. 2004) (noting that impairment 
does not equal disability and holding that individual with migraines 
that did not interfere with work or a major life activity was not 
disabled under the ADA); Reed v. Lepage Bakeries, Inc., 102 F. Supp. 2d 
33 (D. Me. 2000), aff 'd 244 F.3d 254 (1st Cir. 2001) (individual with 
bipolar disorder was disabled under the ADA).
    \7\ Compare Anderson v. Indep. Sch. Dist. No. 281, No. 01-560, 2002 
WL 31242212 (D. Minn. 2002) (individual with depression disabled under 
the ADA); with Cooper v. Olin Corp., 246 F.3d 1083 (8th Cir. 2001) 
(individual with depression not disabled under the ADA).
    \8\ Our research found one case in which a court did not conduct a 
thorough analysis, choosing instead to cite to Federal decisions 
holding that AIDS is a disability. See Hamlyn v. Rock Island County 
Metro. Mass Transit Dist., 986 F. Supp. 1126 (C.D. Ill. 1997). Hamlyn 
is the exception that proves the rule: courts applying the statute in a 
principled manner examine an impairment's impact on major life 
activities.

    Question 4. Like the Rehabilitation Act, the ADA requires that an 
impairment substantially limit a major life activity to constitute a 
disability. The ADA Restoration Act would eliminate the requirement 
that an impairment substantially limit a major life activity to 
constitute a disability. Does this change or restore the ADA's 
definition of disability?
    Answer 4. Eliminating the requirement that an impairment 
substantially limit a major life activity fundamentally changes the 
ADA's definition of disability. By requiring a substantial limitation 
on a major life activity, Congress sought to extend protections to the 
``discrete and insular minority'' of disabled individuals who had been 
``subjected to a history of purposeful unequal treatment.'' \9\
---------------------------------------------------------------------------
    \9\ Remarks of President George Bush at the Signing of the 
Americans with Disability Act (July 26, 1990), http://www.eeoc.gov/ada/
bushspeech.html (last visited Dec.19, 2007); 42 U.S.C. 
Sec. 12107(a)(7).
---------------------------------------------------------------------------
    Thus, inclusion of ``substantially limits one or more of the major 
life activities of such individual'' in the ADA's definition of a 
``disability'' demonstrates Congress's deliberate and careful decision 
to ensure that ``minor, trivial impairments such as a simple infected 
finger'' were not covered by the ADA.\10\ Without this requirement, 
even slight impairments would be covered under the definition of a 
``disability.'' Such a result would have far-reaching implications, 
thus expanding the ADA's reach to cover virtually every American. 
Congress did not intend such a result.
---------------------------------------------------------------------------
    \10\ 29 CFR pt. 1630, App. Sec. 1630.2(j).

    Question 5. Page 22 of the Senate Labor and Human Resources 
Committee report on the ADA lists various conditions, diseases, and 
infections. Does the committee report offer these as examples of 
impairments or examples of disabilities? Does the committee report not 
state, two paragraphs later, that even these conditions or diseases are 
not disabilities unless they substantially limit a major life activity?
    Answer 5. The Senate Labor and Human Resources Committee Report 
lists specific ``conditions, diseases, or infections'' that could 
constitute physical or mental impairments.\11\ The report makes clear, 
however, that a person with an impairment is not necessarily a person 
with a disability. Rather, for purposes of the first prong of the ADA's 
definition of disability, a physical or mental impairment constitutes a 
disability only when it results in a ``substantial limitation on one or 
more major life activities.'' \12\ The report explains that a person 
who is paraplegic, for example, will have a substantial difficulty in 
the major life activity of walking.\13\ However, even being paraplegic 
is not a per se disability. Rather, the ADA's functional approach 
requires a case-by-case analysis of how a specific physical or mental 
impairment affects an individual's major life activities.
---------------------------------------------------------------------------
    \11\ S. Rep. No. 101-16, at 22 (1990).
    \12\ Id.
    \13\ Id.
---------------------------------------------------------------------------
    By removing the requirement that an impairment result in a 
substantial limitation of one or more major life activities, the ADA 
Restoration Act of 2007 would nullify the important distinction between 
an ``impairment'' and a ``disability'' drawn by Congress. Under S. 
1881's proposed definition of a disability, ``[p]ersons with minor, 
trivial impairments, such as a simple infected finger . . .'' \14\ 
would be per se disabled and, therefore, covered by the ADA. This 
contravenes Congress's intent together with Rehabilitation Act 
protections that underlie this intent. Finally, a per se approach would 
reintroduce paternalistic labels that disability statutes were intended 
to eliminate by labeling as ``disabled'' all individuals with 
impairments of any sort or degree--regardless of whether those 
impairments are functionally limiting.
---------------------------------------------------------------------------
    \14\ Id.

    Question 6. In a February 1986 Report titled Toward Independence 
(linked here: http://www.ncd.gov/newsroom/publications/1986/
toward.htm), the National Council on Disability discussed different 
approaches for estimating ``the number of Americans with 
disabilities.'' The ``health conditions approach'' would include ``all 
conditions or limitations which impair the health or interfere with the 
normal functional abilities of an individual.'' This is still a 
functional definition, though its ``interfere with the normal 
functional abilities'' standard is more lenient than the 
``substantially limit a major life activity'' standard in the 
Rehabilitation Act and the ADA. The NCD report said that this 
definition would cover more than 160 million people, or two-thirds of 
the United States population at the time. This would be more than 200 
million people today, at least four times as many as the disabled 
population you identified in your prepared testimony and five times as 
many as the disabled population identified in the ADA. The ADA 
Restoration Act would be broader still, eliminating any requirement 
that a condition limit function. Would the ADA Restoration Act not 
include as disabled the large majority of the U.S. population, far more 
than the ADA covers? Did Congress intend such a result?
    Answer 6. The ADA Restoration Act of 2007,\15\ as drafted, would 
include as disabled the large majority of the United States 
population--substantially more than the ADA currently covers. By 
removing the requirement that an impairment substantially limit a major 
life activity to constitute a disability, coupled with prohibiting the 
consideration of individual mitigating measures, S. 1881 would greatly 
expand the ADA's reach, while at the same time diminishing its meaning.
---------------------------------------------------------------------------
    \15\ S. 1881, 110th Cong. (2007).
---------------------------------------------------------------------------
    Because any ``impairment'' would suffice to qualify as a disability 
under S. 1881, employers would be obliged to address accommodation 
requests from individuals with high cholesterol, back and knee strains, 
colds, tennis elbow, poison ivy, an occasional headache, and myriad 
other minor conditions that go far beyond any reasonable concept of 
disability. Congress did not intend such a result.
    In conclusion, rather than simply restoring the ADA's original 
purpose, S. 1881 imposes significant new obligations on the employer 
community and expands the ADA to cover virtually all persons with 
impairments of any kind.

    [Whereupon, at 4:00 p.m., the hearing was adjourned.]

                                    
