[Senate Hearing 110-991]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 110-991

ROUNDTABLE DISCUSSION: DETERMINING THE PROPER SCOPE OF COVERAGE FOR THE 

                    AMERICANS WITH DISABILITIES ACT

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

                                HEARING

                                 OF THE

                    COMMITTEE ON HEALTH, EDUCATION,
                          LABOR, AND PENSIONS

                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                                   ON

  EXAMINING THE AMERICANS WITH DISABILITIES ACT (PUBLIC LAW 101-336), 
     FOCUSING ON WAYS TO DETERMINE THE PROPER SCOPE OF ITS COVERAGE

                               __________

                             JULY 15, 2008

                               __________

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


  Available via the World Wide Web: http://www.gpoaccess.gov/congress/
                                 senate






                  U.S. GOVERNMENT PRINTING OFFICE
43-702 PDF                WASHINGTON : 2010
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing 
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC 
area (202) 512-1800 Fax: (202) 512-2104  Mail: Stop IDCC, Washington, DC 
20402-0001







          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
        Ilyse Schuman, Minority Staff Director and Chief Counsel

                                  (ii)


                            C O N T E N T S

                               __________

                               STATEMENTS

                         TUESDAY, JULY 15, 2008

                                                                   Page
Harkin, Hon. Tom, a U.S. Senator from the State of Iowa, opening 
  statement......................................................     1
Enzi, Hon. Michael B., a U.S. Senator from the State of Wyoming, 
  opening statement..............................................     2
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, 
  statement......................................................     4
Murray, Hon. Patty, a U.S. Senator from the State of Washington, 
  statement......................................................     5
Feldblum, Chai, Professor, Federal Legislative Clinic, Georgetown 
  University Law Center, Washington, DC..........................     5
    Prepared statement...........................................     6
McClure, Carey, Citizen, Griffin, GA.............................    12
    Prepared statement...........................................    13
 Bagenstos, Samuel R., Professor of Law, Washington University 
  School of Law, St. Louis, MO...................................    15
    Prepared statement...........................................    16
Simon, Jo Anne, Esq., The Law Office of Jo Anne Simon, Brooklyn, 
  NY.............................................................    19
    Prepared statement...........................................    20
Eastman, Michael, Employment Policy Director, U.S. Chamber of 
  Commerce, Washington, DC.......................................    25
Gamm, Sue, Primary Consultant, Public Consulting Group, Chicago, 
  IL.............................................................    26
Hartle, Terry W., Senior Vice President, American Council on 
  Education, Washington, DC......................................    27
Grossman, Andrew, Senior Legal Policy Analyst, Heritage 
  Foundation, Washington, DC.....................................    28
    Prepared statement...........................................    29

                          ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.:
    Obama, Hon. Barack, a U.S. Senator from the State of Illinois    52
    Duke University..............................................    52

                                 (iii)



 
                   ROUNDTABLE DISCUSSION: DETERMINING
                    THE PROPER SCOPE OF COVERAGE FOR
                  THE AMERICANS WITH DISABILITIES ACT

                              ----------                              


                         TUESDAY, JULY 15, 2008

                                       U.S. Senate,
       Committee on Health, Education, Labor, and Pensions,
                                                     Washington DC.
    The committee met, pursuant to notice, at 10:00 a.m., in 
Room SD-106, Dirksen Senate Office Building, Hon. Tom Harkin, 
presiding.
    Present: Senators Harkin, Murray, Enzi, Hatch, and Roberts.

                  Opening Statement of Senator Harkin

    Senator Harkin. The roundtable in the Committee on Health, 
Education, Labor, and Pensions will come to order.
    Good morning, and I welcome everyone to our second hearing 
on the widespread problem of individuals with disabilities 
being denied protection under the Americans with Disabilities 
Act of July 26, 1990.
    Back in November we had an excellent hearing to examine the 
U.S. Supreme Court rulings that have limited the scope of the 
ADA, contrary, I believe, to the clear intent of Congress when 
we passed the law 18 years ago this month. These rulings have 
led to the current unacceptable situation where people, who by 
any common sense standard have disabilities, including people 
with amputated limbs, intellectual disabilities, epilepsy, or 
cancer are not covered by the Americans with Disabilities Act. 
I have a chart here, and it shows, on the left, covered in the 
Rehab Act of 1973 and also the ADA of 1990, amputation, 
epilepsy, muscular dystrophy, diabetes, all of those. Under the 
ADA today, those same ones are not a disability. So that's what 
has happened with these U.S. Supreme Court decisions.
    In the November hearing we reached consensus on a need to 
address this in a very robust way and I am very pleased that a 
number of very prominent employer organizations took this to 
heart. They have devoted a lot of time and effort and good 
faith to negotiate compromised legislation for groups 
advocating disability rights. I want to commend these 
negotiators publicly for putting an enormous amount of thought 
and effort into the bill that recently passed in the House by 
an overwhelming majority.
    At the same time I want to caution supporters of the House 
bill that in the Senate serious procedural and substantive 
concerns have been raised with that bill.
    While we welcome the expertise and insights of advocates on 
both sides, it is the role of the Senate to write the 
legislation to pass in this body, and that's what we will be 
doing now. Today's forum is designed to give members of this 
committee an opportunity to air their concerns with the bill 
passed by the House and to allow organizations not included in 
the negotiations, but nonetheless subject to the ADA, to fully 
express their concerns about the House version.
    I want us to work in a cooperative bipartisan fashion. 
Following today's hearing I want to work quickly to produce a 
Senate bill that gets the job done by returning the protections 
of the ADA to all individuals with disabilities. Our aim is to 
craft the best possible fix, one that could win broad support 
here in the Senate, and among those impacted by the law.
    Let me be clear: The ADA is a broad civil rights statute 
that is intended to provide protection to all individuals with 
disabilities in the workplace, in schools, across the entire 
spectrum of our society, and that is not going to change.
    I look forward to hearing the viewpoints of all 
participants this morning. I look forward to working with all 
of you to restore the full promise of the ADA--equality of 
opportunity, full participation, independent living and 
economic self-sufficiency.
    Let me just mention a few words about today's format. It's 
a hearing roundtable. Our intent is to be less formal than a 
usual hearing. It will be on the record. After we hear from 
Senator Enzi we will offer the panel the opportunity to speak 
for a few minutes. We have your written testimony and that will 
be made a part of the record. There are a lot of participants 
here and I would rather have an open discussion back and forth 
rather than just sitting here and listening to formal 
statements; and, by the way, we have a vote at 11 o'clock which 
I had not anticipated.
    Following these introductions, I will ask a question of the 
panelists and other witnesses can join in the discussion. Other 
Senators can intervene as they see fit to ask questions or to 
make points.
    Again, I ask you to keep your answers brief, to the point, 
and be respectful of your fellow witnesses. With that I will 
turn to our Ranking Member, Senator Enzi.

                   Opening Statement of Senator Enzi

    Senator Enzi. Thank you for holding this very important 
roundtable on the ADA Amendment Act; and, I appreciate the fact 
that you are going through the usual Senate process. I have 
noted that almost every bill that passes the U.S. Senate goes 
through this process and those that avoid it appear to be kind 
of pushing on the edge of something and often result in a lot 
of debate and not much progress. So I appreciate you taking 
this approach.
    I learned about process on my very first bill in the 
Wyoming State legislature. I was working what I thought was a 
very simple issue, a little three-sentence bill on 
unemployment. And when it went to the committee in the House it 
got three amendments. When it went to the House floor it got 
two more amendments. Then, it went through the Senate and got 
two more amendments in the committee. What I noted through this 
whole process was that every one of those amendments improved 
the bill. That's why we have 535 people in Congress--the 
purpose is to get as many viewpoints as possible.
    I've also noted that in any hearing I have ever done and 
roundtable that I have ever done, there's always been someone 
in the audience who knew where the loop holes were but didn't 
share it until after they had taken advantage of it. I would 
hope that wouldn't be the case, but I notice that it usually 
is. But I also appreciate you doing this roundtable format. 
It's something we started doing about 3 years ago and we found 
it gets a lot more information out than the standard hearing.
    With a standard hearing, the chairman would get to pick all 
the participants except for one, I would get to pick the other 
one. Then both sides would show up and ask tough, really clever 
questions. And instead of tough, clever questions, what we want 
is your viewpoint and your interaction with the other people 
who also have viewpoints because you are the experts that we've 
invited to do this, and everybody that has been invited has 
been invited from both sides, not just from one side.
    So we recognize you as experts and count on you for a lot 
of information that will make sure that we are getting it 
right.
    The Americans with Disabilities Act was signed into law 18 
years ago by President George Herbert Walker Bush after a 
tremendous amount of bipartisan negotiation. Many of our fellow 
committee members, Senator Hatch, Senator Harkin, and Senator 
Kennedy were among those who played critical roles in that 
achievement. Today we are taking steps that would re-fashion 
the ADA, the bill would change the defined terms that were 
negotiated in 1990 and cede the responsibility of defining 
those terms to the courts.
    Although the impetus of this legislation may be to re-
direct judicial interpretations of the ADA, some of today's 
participants will point out consequences in the legislation 
that are broader and may not have been fully considered.
    We have several members of the education community here 
today to explain how the bill would alter their current 
policies, practices and budgets with regards to students with 
disabilities. As Senators on the committee with jurisdiction 
over education, we have a special obligation to listen to those 
concerns.
    This is a very important piece of legislation that will 
impact millions of Americans. We owe all of those workers, 
businesses, educators, students and others careful 
consideration of the implications of this bill. That's our job 
as legislators and that's why the committee process is so 
important.
    There is no doubt that the ADA has improved the lives of 
people living with disabilities, but it also benefits all of 
society because it allows the talents and abilities of many 
more people to be shared.
    However, I have been concerned for sometime that the 
employment rate for Americans with disabilities is not as high 
as it should or could be, and I want to remind everybody here 
today that the ADA is not the simple solution to this problem.
    I have been working to revitalize the Federal employment 
and training programs for persons with significant disabilities 
and recently re-introduced the Javits-Wagner-O'Day and 
Randolph-Sheppard Modernization Act of 2008. The bill would 
create much more flexibility to provide real job training and 
real skill development so persons with disabilities can develop 
marketable skills and make meaningful career choices.
    I'm glad to see the hard work and consensus building that 
has gone on with respect to the ADA bill, and I would like to 
see the same focus applied to other legislation which could 
make significant strides towards improving the employment rates 
for people with disabilities.
    I appreciate you holding this hearing and I appreciate your 
using the roundtable format. I think it will give us a lot of 
information and we ought to get on with that.
    Senator Harkin. Thank you very much Senator Enzi.
    Senator Hatch.

                       Statement of Senator Hatch

    Senator Hatch. Well, thank you, Mr. Chairman, I won't say 
much. I am very interested in this. I want to compliment the 
Chairman for being a profound leader in this matter, back when 
we passed the original bill. I intend to help him as much as I 
can.
    There have been some issues that have been raised that I 
think must be looked at. I will be doing everything I can to 
try and help resolve some of these issues and I hope the 
distinguished Chairman would like to work with me on these, 
because I would like to link arms again. I feel very deeply 
about the disability community and about persons who suffer 
from disabilities, and I do think there are times when the U.S. 
Supreme Court has narrowed the definition more than it needed 
to do. I will be working with the Chairman and hopefully we can 
come to a conclusion that will bring everybody together in this 
Congress.
    If we don't resolve some of these problems then I think it 
will be very difficult to pass this bill this year. And I 
intend to see that we resolve them. I know my friend from Iowa 
and certainly my friend from Wyoming will work diligently with 
me and others to try and do so. Thank you, sir.
    Senator Harkin. Thank you, Senator Hatch. That brings back 
a lot of fond memories of our work together in the 1980's on 
this bill.
    Senator Hatch. Sure does.
    Senator Harkin. We did a lot of work together at that time. 
A lot of people were involved in that. But you remember the 
long roads we went down. I mean where we started and the give 
and take over about a 4-year period of time, but we finally got 
a bill, that as you pointed out, brought broad consensus and 
that's the best way to do things.
    Senator Hatch. Mr. Chairman, I would like to just add, I 
think the House has really tried to do what is right here. I 
think they deserve a lot of credit. There are some issues that 
have been raised that still deserve some consideration. I think 
unless we resolve some of those issues it is going to be very 
difficult to do what you and I know needs to be done.
    Senator Harkin. That's the legislative process.
    Senator Hatch. You bet.
    Senator Harkin. We'll get it done.
    Senator Murray.

                      Statement of Senator Murray

    Senator Murray. I am sorry for being late. I don't want to 
delay getting to our witnesses. Let me say for the record, I 
really appreciate the tremendous work you have done over the 
years for the disability community. I think we are a great 
country. We are a great country if every individual has the 
opportunity to go to work and be who they can be. We have an 
obligation as the government to ensure that that opportunity is 
there and that's your goal and I share that with you and I look 
forward to hearing from the witnesses. We need to make sure, 
with the court decisions that we have seen occurring over the 
years, that we do make the right decisions so that individuals 
with disabilities can feel they can contribute and be protected 
by our laws.
    Senator Harkin. Thank you very much, Senator Murray.
    We will take a couple minutes and go around. We will start 
with Professor Feldblum and take a couple of minutes or so and 
then Mr. McClure and then continue in that order.
    We have a vote at 11 o'clock and I apologize. There is 
nothing we can do about that. We may come back after that, 
depending upon where we are at that point of time. All of your 
statements will be made a part of the record in their entirety. 
I just ask you to speak for a couple of minutes and then let's 
open it up for panel discussion.
    Professor Feldblum.

  STATEMENT OF CHAI FELDBLUM, PROFESSOR, FEDERAL LEGISLATION 
    CLINIC, GEORGETOWN UNIVERSITY LAW CENTER, WASHINGTON, DC

    Ms. Feldblum. Thank you, Senator Harkin, Senator Enzi, 
Senator Hatch, Senator Murray. Exactly 8 months ago I testified 
before this committee in support of S. 1881, the Americans with 
Disabilities Restoration Act, as originally introduced. In both 
my written and oral testimony and in several exchanges with you 
Senator Harkin during that hearing, I defended the broad terms 
of that bill as reflecting congressional intent during passage 
of the ADA and as appropriate public policy. I continue to 
stand by those positions.
    However, I also believe that the ADA Amendments Act of 2008 
as passed by the House last month represents a legitimate and 
fair compromise between the interests of people with 
disabilities and the interests of other entities under the law.
    To meet the needs of entities covered under the law, an 
impairment must substantially limit a major life activity as 
was put in the original ADA and as was not the case in S. 1881. 
To meet the needs of people with disabilities, mitigating 
measures are explicitly not to be taken into account in 
determining whether an impairment substantially limits a major 
life activity and the courts strict reading of that critical 
term ``substantially limit'' is explicitly rejected.
    While the cases that narrowed the definition of disability 
arose in the employment context, as a legal matter those narrow 
standards apply across the board to all entities covered under 
the law. For that reason, any modification to the definition 
must equally apply to and be workable for all entities covered 
under the law.
    I believe that the ADA Amendments Act before you today does 
exactly that. Thank you, and I look forward to the exchange.
    [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 on the Americans with Disabilities Act (ADA). 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 have 
provided pro bono legislative lawyering services to the Epilepsy 
Foundation over the past 2 years 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 ADA.
    From 1988 to 1990, while working for the American Civil Liberties 
Union, I served as one of the lead legal advisors to the disability and 
civil rights communities in the drafting and negotiating of the ADA. 
From January 2008 until now, I have been actively involved in 
discussions between representatives of the disability and business 
communities on S. 1881 and H.R. 3195, the ADA Restoration Acts as 
introduced, to consider changes that would enable members of the 
business community to support those bills.
    In this submitted testimony, I provide a brief overview of the 
bipartisan support that propelled passage of the ADA in 1990, describe 
how Congress discussed the definition of disability in the ADA in its 
committee reports, and explain how the U.S. Supreme Court narrowed that 
definition of disability. I then describe the ADA Amendments Act as 
passed by the House of Representatives in June 2008; the obligations of 
employers under the House-passed bill as compared to current law; and 
whether the standard for determining whether an individual is 
``disabled'' should be more clearly defined than it is in the House-
passed bill. While other witnesses will address the implications of the 
House-passed bill for schools and universities in their written 
testimony, I am happy to answer any questions on those issues.
                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\ 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.\2\ 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.\3\
---------------------------------------------------------------------------
    \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\ 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).
    \3\ 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 
\4\; the House Committee on Education and Labor favorably reported the 
bill by a vote of 35-0 \5\; the House Committee on Energy and Commerce 
favorably reported the bill by a vote of 40-3 \6\; the House Committee 
on Public Works and Transportation favorably reported the bill by a 
vote of 45-5 \7\; and the House Committee on the Judiciary favorably 
reported the bill by a vote of 32-3.\8\
---------------------------------------------------------------------------
    \4\ S. Rep. No. 101-116 at 1 (1989).
    \5\ H.R. Rep. No. 101-485, pt. 2, at 50 (1990).
    \6\ H.R. Rep. No. 101-485, pt. 4, at 29 (1990).
    \7\ H.R. Rep. No. 101-485, pt. 1, at 52 (1990).
    \8\ 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.\9\ 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.\10\
---------------------------------------------------------------------------
    \9\ 135 Cong. Rec. S10803 (daily ed. Sept. 7, 1989); 136 Cong. Rec. 
H2638 (daily ed. May 22, 1990).
    \10\ 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.''\11\
---------------------------------------------------------------------------
    \11\ 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.''\12\
---------------------------------------------------------------------------
    \12\ 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.\13\ 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.\14\
---------------------------------------------------------------------------
    \13\ See Americans with Disabilities Act Sec. 2(b), 42 U.S.C. 
Sec. 12101(b) (2007).
    \14\ 42 U.S.C. Sec. 12101 (a), (b).
---------------------------------------------------------------------------
    But that did not happen. In recent years, the U.S. 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.
    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.\15\
---------------------------------------------------------------------------
    \15\ 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.\16\ Indeed, in School Board of 
Nassau County v. Arline, the U.S. 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.''\17\
---------------------------------------------------------------------------
    \16\ 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.'')
    \17\ 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.''\18\
---------------------------------------------------------------------------
    \18\ S. Rep. No. 101-116 at 21 (1989).
---------------------------------------------------------------------------
    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.\19\
---------------------------------------------------------------------------
    \19\ S. Rep. No. 101-116 at 121 (1989).

    Finally, the committee reports specifically referenced the breadth 
of the interpretation offered by the U.S. Supreme Court in the Arline 
decision with regard to the third prong of the definition of 
disability, the ``regarded as'' prong. 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.'' \20\
---------------------------------------------------------------------------
    \20\ S. Rep. No. 101-116 at 24 (1989); see also H.R. Rep. No. 101-
485, pt. 2, at 53 (1990) (discussing Arline).
---------------------------------------------------------------------------
    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 existing law. Congress expected that the definition 
of ``disability'' would be interpreted as broadly under the ADA as it 
had been interpreted under the previous disability rights law for over 
15 years.
           iii. judicial narrowing of coverage under the ada
    The expectations of Congress with regard to the ADA have not been 
met. Over the past several years, the U.S. Supreme Court and lower 
courts have narrowed coverage 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.\21\
---------------------------------------------------------------------------
    \21\ See testimony and appendices submitted by Chai R. Feldblum to 
the Senate Health, Education, Labor, and Pensions Committee, Hearing on 
Restoring Congressional Intent and Protections under the ADA, Nov. 15, 
2007. Appendix A to that testimony notes the coverage of people under 
section 504 as compared to the ADA and Appendix B sets out case stories 
of people denied coverage under the ADA.
---------------------------------------------------------------------------
    The U.S. Supreme Court first narrowed coverage in a trio of cases 
decided in June 1999, ruling that mitigating measures such as 
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.\22\ Despite the fact that the committee reports from the 
Senate Labor and Human Resources Committee, the House Judiciary 
Committee, and the House Education and Labor Committee had all stated 
that mitigating measures were not to be taken into account; that both 
the EEOC and DOJ had issued guidance that mitigating measures were not 
to be taken into account; and that eight Circuit Courts of Appeal had 
followed that agency guidance, the U.S. Supreme Court concluded that 
evaluating individuals ``in their hypothetical uncorrected state'' 
would be ``an impermissible interpretation of the ADA'' based on the 
plain language of the statute.\23\
---------------------------------------------------------------------------
    \22\ 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).
    \23\ Sutton, 527 U.S. at 482. See Feldblum Testimony, supra n. 21, 
at 10-15 for further description of the trio of U.S. Supreme Court 
cases and the Court's reasoning.
---------------------------------------------------------------------------
    The U.S. Supreme Court's requirement that courts consider 
mitigating measures has created an unintended paradox: people with 
serious health conditions, like epilepsy and diabetes, who are 
fortunate enough to find treatment that make them more capable and 
independent and thus more able to work, are often 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 is to be 
protected from discrimination, even if an employer admits that he or 
she has dismissed the person because of that person's (mitigated) 
condition.
    The U.S. Supreme Court also narrowed coverage, in 1999, by changing 
the standard under the third prong of the definition of disability--the 
``regarded as'' prong that was intended to cover individuals with 
impairments of any level of severity (or with no impairments at all) 
based on how such individuals were treated by an entity covered under 
the law. Again ignoring both committee reports and EEOC guidance, the 
U.S. Supreme Court formulated a new and almost impossible standard to 
meet for any individual seeking coverage under the third prong. The 
Court's approach essentially required individuals to divine and prove 
an employer's subjective state of mind. Not only did the individual 
have to demonstrate that the employer believed that the individual had 
an impairment that prevented him or her from working for that employer 
in that job, the individual also had to 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 
most 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 became essentially insurmountable except in 
rare cases.
    Finally, the Court made the situation worse 3 years later in 
another decision regarding the definition of disability. In 2002, the 
U.S. Supreme Court ruled in Toyota Motor Manufacturing, Kentucky, Inc. 
v. Williams that the words ``substantially limits'' and ``major life 
activities'' were to be interpreted strictly to create a ``demanding 
standard for qualifying as disabled.'' \24\ 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.'' \25\ As a result of this ruling, 
lower courts now consistently require people alleging discrimination 
under the ADA to show that their impairments prevent or severely 
restrict them from doing activities that are of central importance to 
most people's daily lives.
---------------------------------------------------------------------------
    \24\ 534 U.S. 184, 197 (2002).
    \25\ Id. at 197, 201-02.
---------------------------------------------------------------------------
    In earlier testimony delivered to this committee, I described 16 
cases in which individuals who believed they had been discriminated 
against because of their physical or mental impairments were never 
given the chance to prove their cases because the courts had ruled they 
were not ``disabled enough'' to be covered under the ADA. These results 
occurred because the mitigating measures used by the individual meant 
that he or she was no longer substantially limited in a major life 
activity; or because the individual could not meet the new standard 
under the ``regarded as'' prong; or because the courts deemed the 
individual's impairment not to be sufficiently severe.\26\ These cases 
all dealt with individuals who should have been given an opportunity to 
make the case that their impairments had been the basis for a covered 
entity's discriminatory acts and that they were otherwise qualified for 
the job.
---------------------------------------------------------------------------
    \26\ See Feldblum Testimony, supra n. 21, pages 22-29.
---------------------------------------------------------------------------
       iv. the ada amendments act of 2008, as passed by the house
    In fall 2007, a number of major business associations opposed S. 
1881 and H.R. 3195, bills that had been introduced to rectify the 
situation caused by the U.S. Supreme Court's interpretation of the 
ADA's definition of disability. These groups felt that the bills as 
introduced went beyond the original intent of the ADA by including too 
many people with impairments as people with disabilities. They were 
particularly concerned about the number of employees with impairments 
who might be eligible for reasonable accommodations by employers under 
the proposed amendments to the ADA.\27\
---------------------------------------------------------------------------
    \27\ See, e.g., testimony of Camille A. Olson to the Senate Health, 
Education, Labor, and Pensions Committee, Hearing on Restoring 
Congressional Intent and Protections under the ADA, Nov. 15, 2007.&
---------------------------------------------------------------------------
    For example, in testimony before this committee on November 15, 
2007, Camille Olson, from the law firm of Seyfarth Shaw, articulated a 
number of concerns that were being voiced by various business 
associations at the time. These concerns fell into the following broad 
categories:

     The language of S. 1881 would cover any impairment, no 
matter how minor or trivial, as a disability.\28\
---------------------------------------------------------------------------
    \28\ See Olson Testimony, supra n. 27 at pages 1-2 (``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.'')
---------------------------------------------------------------------------
     The fact that minor and trivial impairments would be 
eligible for reasonable accommodations could cause considerable 
difficulty for employers.\29\
---------------------------------------------------------------------------
    \29\ Id. at 6. (``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.'')
---------------------------------------------------------------------------
     Congress had deliberately and carefully decided, in 1990, 
that an impairment should ``substantially limit'' a ``major life 
activity'' in order to be a disability.\30\
---------------------------------------------------------------------------
    \30\ Id. at 10-11 (``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.'')(Citation omitted.)
---------------------------------------------------------------------------
     S. 1881 would make radical shifts with regard to the 
burden of proof on qualifications under the ADA.\31\
---------------------------------------------------------------------------
    \31\ Id. at 24-25 (``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.'' . . . The calculated 
balancing of the rights and obligations between disabled employees and 
employers is clear from the ADA's legislative history. . . . 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.'')(Citations omitted.)
---------------------------------------------------------------------------
    At the November 15, 2007 hearing, there was an exchange between 
this witness, Camille Olson, and Senator Tom Harkin as to whether S. 
1881 was the appropriate response to the U.S. Supreme Court cases and 
both this witness and Olson indicated a willingness to continue talking 
about how to best respond to such cases.\32\
---------------------------------------------------------------------------
    \32\ See http://help.senate.gov/Hearings/2007_11_15_b/
2007_11_15_b.html for video of hearing.
---------------------------------------------------------------------------
    Overtures for such a conversation were made in January 2008 and 
official discussions between representatives of the disability 
community and the business community began in February 2008. The 
disability community was represented (in alphabetical order) by the 
American Association of People with Disabilities; Bazelon Center for 
Mental Health Law; Epilepsy Foundation; the National Council on 
Independent Living; and National Disability Rights Network. The 
business community was represented (in alphabetical order) by the HR 
Policy Association; National Association of Manufacturers; Society for 
Human Resource Management; and the U.S. Chamber of Commerce. Various 
other groups joined from time to time. In May 2008, the disability and 
business communities communicated to several Members of the House of 
Representatives and the Senate some of the agreements they had reached 
internally.
    The ADA Amendments Act of 2008, passed by the House in June 2007 by 
a vote of 402-17, reflected some of these agreements. This bill makes 
the following changes to current law in order to respond to the adverse 
U.S. Supreme Court decisions of 1999 and 2002:

     The statutory language overturns the mitigating measures 
analysis of Sutton and explicitly states that mitigating measures are 
not to be taken into account in determining whether an individual has a 
disability.
     The findings in the bill disapprove of the Sutton trilogy 
and disapprove of several statements in Toyota v. Williams.
     The statutory language clarifies that an individual is not 
excluded from coverage because of an ability to do many things, as long 
as the individual is substantially limited in one major life activity.
     The statutory language clarifies that the fact that an 
otherwise substantially limiting impairment is in remission or episodic 
does not remove the individual from coverage.
     To respond to the directive in Williams that the 
definition of disability was intended by Congress to be narrowly 
construed, the statutory language indicates that the definition is to 
be given a broad construction. (This construction, obviously, cannot go 
beyond the terms of the Act itself.)
     The ``regarded as'' prong focuses on how an individual is 
treated, rather than on the difficult to prove perception of a covered 
entity.

    There are also several changes in the ADA Amendments Act that 
respond to concerns raised by the business community:

     The most major change in the ADA Amendments Act of 2008 is 
that it re-
instates the current language of the ADA that requires an impairment to 
``substantially limit'' a ``major life activity'' in order to be 
considered a disability that requires a reasonable accommodation or 
modification.
     The term ``substantially limits'' is defined as 
``materially restricts'' which is intended, on a severity spectrum, to 
refer to something that is less than ``severely restricts,'' and less 
than ``significantly restricts,'' but more serious than a moderate 
impairment which is in the middle of the spectrum.
     The statutory language explicitly provides that ordinary 
eyeglasses and contact lenses are to be taken into account as 
mitigating measures.
     The statutory language makes clear that reasonable 
accommodations need not be provided to an individual who is covered 
solely under the ``regarded as'' prong of the definition of disability.
     The statutory language clarifies that there are no changes 
to the burdens of proof with regard to proving qualifications for a 
job.
     Although there is no general severity test required under 
the ``regarded as'' prong, transitory and minor impairments are not 
covered under that prong.

    The committee has specifically inquired whether the obligations of 
employers under the House-passed bill would be different than current 
law. The only difference for employers from the ADA (as enacted in 
1990, not as subsequently interpreted by the U.S. Supreme Court) is 
that the statute now clearly establishes that reasonable accommodations 
need not be provided to an individual who has a disability solely under 
the ``regarded as'' prong of the definition.
    This aspect of the language clarifies the current state of the law 
on whether reasonable accommodations are available to those covered 
under the ``regarded as'' prong of the definition of disability. Four 
circuit courts of appeal (the First, Third, Tenth and Eleventh Circuit 
Courts of Appeal) have held that plaintiffs who are not covered under 
the first prong of the definition may nonetheless seek reasonable 
accommodations under the ``regarded as'' prong.\33\
---------------------------------------------------------------------------
    \33\ The following circuit courts have held that the ADA requires 
that reasonable accommodations be provided to individuals who are able 
to establish coverage under the ADA only under the ``regarded as'' 
prong of the definition of disability: Kelly v. Metallics West, Inc., 
410 F.3d 670 (10th Cir. 2005) (plaintiff needed oxygen device to 
breathe); D'Angelo v. ConAgra Foods, Inc., 422 F.3d 1220 (11th Cir. 
2005) (plaintiff had vertigo resulting in spinning and vomiting); 
Williams v. Philadelphia Housing Auth. Police Dept, 380 F.3d 751 (3d 
Cir. 2004) (plaintiff had major depressive disorder); and Katz v. City 
Metal Co., Inc., 87 F.3d 26, 33 (1st Cir. 1996) (plaintiff had heart 
attack). In addition, the following district courts have similarly held 
that reasonable accommodations may be available under the third prong: 
Lorinz v. Turner Const. Co., 2004 WL 1196699, * 8 n.7 (E.D.N.Y. May 25, 
2004) (plaintiff had depressive disorder and anxiety); Miller v. 
Heritage Prod., Inc., 2004 WL 1087370, * 10 (S.D. Ind. Apr. 21, 2004) 
(plaintiff had back injury and could not lift more than 20 pounds, bend 
or twist); Jacques v. DiMarzio, Inc., 200 F. Supp.2d 151 (E.D.N.Y. 
2002) (plaintiff had bipolar disorder); and Jewell v. Reid's 
Confectionary Co., 172 F. Supp.2d 212 (D. Me. 2001) (plaintiff had 
heart attack).
---------------------------------------------------------------------------
    It is perhaps no surprise that some courts--when faced with claims 
that appear to have merit but in which the case law (in light of Sutton 
and Williams) precludes coverage of the plaintiff under the first prong 
of the definition of disability--have concluded that the plain language 
of the ADA requires employers to provide reasonable accommodations to 
individuals who fall under the third prong of the definition. It is 
also probably not a surprise that other courts have concluded that 
reasonable accommodations are not required under the third prong.\34\
---------------------------------------------------------------------------
    \34\ There is a circuit split on this issue. The Ninth, Eight, 
Sixth, and Fifth Circuits have held that reasonable accommodations need 
not be provided to an employee who is merely regarded or perceived as 
disabled. See Kaplan v. City of N. Las Vegas, 323 F.3d 1226, 1231-33 
(9th Cir. 2003); Weber v. Strippit, Inc., 186 F.3d 907, 916-17 (8th 
Cir. 1999); Workman v. Frito-Lay, Inc., 165 F.3d 460, 467 (6th Cir. 
1999); Newberry v. E. Texas State Univ., 161 F.3d 276, 280 (5th Cir. 
1998).
---------------------------------------------------------------------------
    However, when one reviews the facts of the cases in which 
reasonable accommodations have been found to be required under the 
third prong, it seems clear that the plaintiffs in those cases should 
have been covered under the first prong of the definition of 
disability. Hopefully, that will be the case now under the ADA as 
amended by the ADA Amendments Act of 2008. For example, three of the 
impairments in those cases--heart attacks, bipolar disorder, and major 
depressive disorder--should be covered as material restrictions on 
major bodily functions--the first on the circulatory system and the 
second two on brain functioning. The particular facts in the cases 
regarding the severity of the other four impairments--a respiratory 
impairment requiring use of an oxygen device, vertigo, back injury, and 
depression and anxiety--could be examples of impairments that 
materially restrict the major life activities of breathing; standing; 
bending and twisting; and concentrating, sleeping and thinking 
(respectively) when mitigating measures are not taken into account and 
when episodic impairments are considered in their active state.
    The committee has also inquired whether the standard for 
determining whether an individual is ``disabled'' should be more 
clearly defined than it is in the House-passed bill. Those of us 
engaged in the discussions on this bill believe that there is 
sufficient guidance for the courts to determine when an impairment 
``materially restricts'' a major life activity. In particular, we 
believe the combination of the findings in the bill, and the direction 
for a broad construction of the definition of disability (within the 
limits of the terms of the statute) should provide additional and 
adequate guidance for the courts.
    Thank you for your attention and I look forward to answering any 
questions.

    Senator Harkin. Thank you, Professor Feldblum. Carey 
McClure, a citizen from Griffin, GA--I think most of us are 
familiar with your case, and what happened to you at General 
Motors, but if you could take a couple of minutes to sum it up 
for us, Mr. McClure.

      STATEMENT OF CAREY L. McCLURE, CITIZEN, GRIFFIN, GA

    Mr. McClure. Thank you, sir. I am Carey McClure. I am a 
retired electrician from Griffin, GA. I have been doing 
electrical work for about 20 years. I worked for many companies 
as an electrician. I love my job and I was very good at it.
    When I was 15 I was diagnosed with facioscapulohumeral 
muscular dystrophy. It affects some of the muscles and causes 
constant pain. I can't lift my arms above my shoulders, but I 
have found ways to live with my condition. I use step stools 
and ladders to reach things. I use one arm to help the other 
reach things. The point is, my muscular dystrophy does not stop 
me from living my life or from being a good electrician. There 
is virtually nothing I can't do.
    I wanted to work for General Motors like my father and my 
brother did. The company has good pay and benefits. When I was 
finally offered a job there I had to take a company physical. 
The company doctor said that because I could not lift my arms 
above my head, I could not be an electrician. I had been 
working as an electrician doing more complicated and demanding 
work than what General Motors wanted me to do, but the job 
offer was withdrawn. I knew I could do the job despite my 
physical limitations so we went to court.
    During the hearing of the case the lawyers, judges and 
employers asked me many embarrassing and personal questions 
about my non-work activities. Questions that had nothing to do 
with my qualifications for the job. But the appeals court ruled 
that because I could manage my daily life and because I had 
compensated so well for my impairment, I was not disabled 
enough to be covered under the ADA, even though the reason I 
was not hired was my disability.
    So I asked them if someone who suffered from undisputable 
muscular dystrophy and was refused a job because of this is not 
an individual with a disability under the ADA, then who is?
    The Fifth Circuit passed the buck to the U.S. Supreme Court 
for the interpretation of the ADA. They said that my problem 
was with the U.S. Supreme Court, not them. Well, you could do 
something about the U.S. Supreme Court today--the 
interpretations of the ADA, by passing the ADA Amendment Act 
this year for the sake of people with disabilities like me who 
want to work but are discriminated against. I hope you will. 
Thank you for listening and I will be happy to answer 
questions.
    [The prepared statement of Mr. McClure follows:]
                 Prepared Statement of Carey L. McClure
    Mr. Chairman and members of the committee, good morning. My name is 
Carey McClure, and I am an electrician from Griffin, GA. I'd like to 
thank you for holding this roundtable today, and for giving me a chance 
to tell my story.
    I have been an electrician for over 20 years. I earned a technical 
certificate from the United Electronics Institute after high school and 
then worked my way up from apprentice electrician to journeyman 
electrician. I've always wanted to be an electrician, and I love what I 
do. It is my hobby, and it is my fun.
    When I was 15 years old, I was diagnosed with facioscapulohumeral 
muscular dystrophy. ``Muscular dystrophy'' means progressive muscle 
degeneration. ``Facioscapulohumeral'' refers to the parts of my body 
that are most seriously affected: the muscles in my face, shoulder 
blades, and upper arms. There are nine types of muscular dystrophy, and 
this is mine. As a result of my condition, the muscles in my face, 
back, and upper arms are weak. I'm unable to lift my arms above 
shoulder-level, and I have constant pain in my shoulders.
    But like so many other people with disabilities, I've found ways to 
live with my condition. For instance, I have a stepstool in my kitchen 
that I use to reach my cabinets. When I shampoo my hair, I support one 
hand with the other to get it over my head, or I bend forward so my 
hands can reach my head. I take showers because it's easier for me to 
bathe all of my body parts standing rather than sitting down. When I 
comb my hair or brush my teeth, I prop up my elbow with the other hand. 
Instead of wearing T-shirts, I generally wear button-down shirts, which 
don't require me to raise my arms over my head. To put on a T-shirt, I 
bend at the waist and pull the back of the shirt over my head. When I 
eat, I hold my head over my plate and prop my elbows on the table so 
that I can raise my fork or spoon to my mouth. And while I love my 
grandchildren, and play actively with them, I don't take care of them 
alone for fear I might suddenly need to lift them above chest-height to 
get them out of harm's way.
    The point is, my muscular dystrophy doesn't stop me from living my 
life. There is virtually nothing I can't do. Unfortunately, General 
Motors (GM) didn't feel the same way.
    My father and brother both work for GM, so I guess you could say GM 
practically raised me. GM supported our family, and it pays really well 
and offers good benefits. It's a great place to work, and for as long 
as I can remember, it's been my ``dream job.''
    I applied for an apprenticeship with GM three times, but those 
positions were put on hold and never filled. I applied for a journeyman 
electrician position another time, but there were 400 applicants for 
seven or eight positions and so I didn't get that job either.
    In September 1999, I gave it another shot and responded to a 
newspaper ad seeking applicants for electrician positions at the GM 
assembly plant in Arlington, TX. This time was different. In November 
1999, GM invited me to fly out to its Texas assembly plant to take a 
written exam and a practical, ``hands-on'' exam. I passed both of them. 
In December 1999, GM sent me a letter offering me the job and asked me 
to take a pre-employment physical. I called back and accepted the job, 
and scheduled an appointment with GM's plant medical director for 
January 5th--about a week before my start date.
    In the meantime, I got ready for the big move. I quit my 
electrician job with a roofing company; sold my house in Griffin, GA; 
withdrew my daughter from her high school; and packed up all of our 
things in anticipation of relocating.
    When I got to Texas, I went on a tour of my new plant. From the 
tour and the job description in the ad I answered, I knew that the job 
I'd be filling would be easier than the one I had left in Georgia, and 
would also pay better wages. At my prior job with the roofing company, 
I was doing electrical maintenance on a production line. That meant 
that I performed two completely different types of jobs: I was both an 
electrician and a mechanic. If there was a 400-pound motor sitting 
there that needed replacing, I'd have to disconnect the wires, unbolt 
the motor, move the motor, put the new motor in, then wire it back up. 
The position I'd accepted at GM was much more specialized. There, I 
would be doing just the job of an electrician--I'd only have to 
disconnect the wires and then let the GM mechanics take care of the 
rest.
    There was a doctor's office in the plant where I went for my 
physical exam. It was a normal physical exam like those I'd taken and 
passed for all of my other jobs. The physical went fine until the 
doctor asked me to lift my arms above my head, which I could not do.
    The doctor asked me hypothetically how I would reach electrical 
work above my head. I told him I'd get a ladder. He asked what I'd do 
if the work was higher than the ladder. I told him I'd get a taller 
ladder.
    For over 20 years, I've been an electrician. For over 20 years, 
I've worked on things above my head without a problem. I've run pipe 
all the way up against the ceiling. I've worked on lights all the way 
up against the ceiling. Sometimes I throw my arms up in the air and 
lock my elbows. Most of the time, there's an object next to me that I 
can prop my arms on, just like I do when I'm brushing my teeth. Other 
times, all it takes is a stepstool like I have for my cabinets, or a 
ladder or a hydraulic lift like many electricians use. When I toured 
the GM plant, I saw people using those hydraulic lifts just like at 
every other job I'd had.
    But this doctor wouldn't hear of it. He didn't think I could do a 
job that I'd been doing my entire life, even though he later admitted 
that he didn't even know what the functions of my electrician job were. 
Regardless, he recommended that GM revoke my job offer, and that's 
exactly what GM did. An assistant gave me the bad news, and I just 
stood there stunned, in the middle of the doctor's office lobby, and I 
didn't know what had hit me. I had just quit my previous job, had sold 
my house, packed my bags, and relocated my family from Georgia to Texas 
for the dream job I'd been trying for my whole professional life. GM 
had just taken my dream job away from me.
    I didn't know much about the Americans with Disabilities Act, but I 
knew that I had a disability, and that GM took my job away because of 
my disability--not because I couldn't work as an electrician. I can do 
that job--that's the bottom line. So I found a lawyer, and we filed a 
lawsuit.
    During my lawsuit, GM's attorney asked me all sorts of personal 
questions like how I comb my hair and how I brush my teeth. They asked 
me how I play with my grandchildren. They asked me how I bathe, and how 
I clean my house. They asked me how I drive a car. They even asked me 
how I have intercourse. They asked me things they don't need to know--
things that don't have anything to do with my ability to work at GM.
    Even though GM revoked my offer because of my disability, GM's 
lawyers started arguing to the Federal courts that I didn't have a 
disability at all. Well, you can't have it both ways--am I disabled or 
not? If I am, then the ADA should have been there to protect me. If I'm 
not, then I should be working with my father and my brother at GM right 
now.
    Unfortunately, the courts agreed with GM. The trial court said that 
my ``ability to overcome the obstacles that life has placed in my path 
is admirable,'' but that in light of my ability, I was no longer 
disabled. Basically, the court punished me for making myself a 
productive member of the workforce for over 20 years. Because I'd 
adapted so well to living with muscular dystrophy, the court said I 
wasn't protected by the ADA. That doesn't make any sense to me.
    I lost my case. I lost my house. And I lost two jobs--the 
electrician job with the roofing company that I left, and the 
electrician job that GM gave and then took away from me. But I have no 
ill will towards GM. I still buy vehicles from them, and I'd work there 
today if I could. That's all I've ever wanted to do.
    I found another job after GM revoked its offer, but it took me 6 
months to find one that paid the same as my old job with the roofing 
company, and it still didn't pay as high as GM. In my first evaluation 
at that job, my boss ranked me excellent in five out of seven 
categories and next highest on the other two.
    I enjoy being an electrician, and I'm good at it. I wish that GM 
had given me the chance to prove that I could do the job, and I wish 
that the ADA had been there to protect me when GM didn't give me that 
chance. Unfortunately, there are many people with disabilities like me 
who are not getting the protection they deserve because the courts are 
telling them that they're not ``disabled.''
    As I told the courts who heard my case, ``if one who suffers from 
undisputed muscular dystrophy is not an individual with a disability 
under the ADA,'' then who is?
    The Fifth Circuit Court of Appeals told me that they were just 
interpreting the ADA as the U.S. Supreme Court told them to, and that 
my problem was with the U.S. Supreme Court--not them. They told me that 
the Sutton case, and its companion 1999 cases, Kirkingburg and Murphy, 
as well as the 2002 Toyota case, had set rules that allowed me to be 
thrown out of court because I wasn't disabled enough.
    Now if the Fifth Circuit was right that my problem is with the U.S. 
Supreme Court's bad reading of your good law, then you are the ones who 
can do something about those interpretations of the ADA. For the sake 
of people with disabilities like me who want to work but are 
discriminated against, I hope you will.
    I am not a lawyer. But people who are lawyers have looked at the 
proposed ADA Amendments Act and have explained to me that this proposal 
would take care of every argument the 5th Circuit made in dealing with 
my own case, based on those U.S. Supreme Court opinions.
    Millions of Americans like me will thank you every day for the rest 
of our lives if you can pass a law that fixes the coverage problem for 
people with conditions like mine, a law like the ADA Amendments Act 
which has the support of both the business community and disability 
advocates.
    And the sooner the better, because every day that goes by, more 
people with disabilities are discriminated against and, like me, cannot 
get justice in the courts.
    Thank you for giving me the opportunity to speak before you today, 
and for your help in getting a new ADA passed this year.

    Senator Harkin. Thank you, very much, Mr. McClure, first of 
all for being here and being brave enough to take them on and 
to highlight what we just put up there. Muscular dystrophy used 
to be listed as a disability under that ADA and the Rehab Act 
of 1973, and now it no longer is. We will get to that.
    Professor Bagenstos, Professor of Law at the Washington 
University School of Law in St. Louis, MO.
    Professor.

STATEMENT OF SAMUEL R. BAGENSTOS, PROFESSOR OF LAW, WASHINGTON 
            UNIVERSITY SCHOOL OF LAW, ST. LOUIS, MO

    Mr. Bagenstos. Thank you, Mr. Chairman, and Senator Enzi. I 
am here because I teach and write about disability 
discrimination laws. I have been litigating cases under the ADA 
since the mid-1990's and have been writing about it since I 
started teaching about a decade ago. I support the ADA 
Amendments Act and I am happy to answer any questions about any 
parts of the bill in our discussion, but in this brief 
statement I want to talk about two issues that staff suggested 
that I might address.
    The first relates to the bill's broad construction 
provision. What I would like to say about that is, it is not at 
all unusual in the law. It mirrors very similar provisions in 
lots of other statutes all across the U.S. Code. The U.S. 
Supreme Court has emphasized that such a provision doesn't 
change the meaning of the law. It serves only as an aid for 
resolving an ambiguity in the law but can't create an ambiguity 
of its own. So, in this bill before this committee what it does 
is nothing more than make clear that ambiguities in the 
definition of disability are to be resolved in favor of 
considering claims of discrimination on the merits, of 
considering whether somebody was actually discriminated 
against, and it is essential because the courts have 
aggressively and without support in the statute rejected that 
view which had been an the typical view for interpreting the 
statute.
    The second point I want to make is that the bill's 
materiality standard for substantial limitation invokes a 
concept that is familiar to judges. So there is no particular 
need to elaborate it further in the bill. Indeed there is a 
limit on to which it can be elaborated and that is what Justice 
Scalia has made clear in various cases in the U.S. Supreme 
Court. Elaborating the materiality standards because it is very 
fact specific.
    If the committee believes it is necessary to elaborate I 
would suggest in my testimony one possible way of doing that, 
and I would be happy to talk about that in the question period. 
Thank you very much, and I look forward to your questions.
    [The prepared statement of Mr. Bagenstos follows:]
               Prepared Statement of Samuel R. Bagenstos
    Mr. Chairman and members of the committee, I am pleased to testify 
before you today. My name is Samuel Bagenstos. I am a Professor of Law 
at the Washington University Law School in St. Louis, MO, where I teach 
constitutional law, employment discrimination, civil rights litigation, 
and disability law, among other things. For over a decade, I have been 
litigating cases under and writing about the Americans with 
Disabilities Act. I have served as counsel to the individual plaintiffs 
in the U.S. Supreme Court in the two most recent cases in which the 
Court addressed the constitutionality of the ADA: Tennessee v. Lane, 
541 U.S. 509 (2004); and United States v. Georgia, 546 U.S. 151 (2006). 
In both Lane and Georgia, the Court agreed with our position and upheld 
the constitutionality of the ADA as applied to my clients' cases.
    I have been invited to testify to discuss the ADA Amendments Act, 
which passed the House last month and is now pending before the Senate. 
As one who both studies and litigates disability rights cases, I 
strongly support the bill. The ADAAA will overturn the mitigating-
measures holding of Sutton v. United Air Lines,\1\ which has been 
applied to deprive many individuals with disabilities of the ADA's 
protections. The bill will also overturn the restrictive interpretation 
of ``substantially limits'' applied in Toyota Motor Mfg., Ky., Inc. v. 
Williams,\2\ and it will decisively reject the Toyota Court's 
unsupported dictate that the statute ``need[s] to be interpreted 
strictly to create a demanding standard for qualifying as disabled.'' 
\3\ And it will make clear, contrary to the practice of many courts, 
that the ``regarded as'' prong of the ADA's disability definition 
occupies an important and independent position in the statutory scheme. 
As you have heard at previous hearings, and will hear again today, far 
too many ADA cases have been thrown out of court at the threshold 
``disability'' stage, and far too many people with disabilities have 
accordingly been unable to have their claims of discrimination heard on 
the merits. This bill is essential to change that unjust result.
---------------------------------------------------------------------------
    \1\ Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999).
    \2\ Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002).
    \3\ Id. at 197.
---------------------------------------------------------------------------
    I should emphasize that, just after Sutton was decided, I published 
an article that endorsed the Court's mitigating-measures holding 
(though not other aspects of the decision).\4\ I argued that protecting 
individuals whose only ``disability'' was the need to use ordinary 
corrective lenses was not consistent with the statutory language or 
Congress's intent. Moreover, I contended, the Court's opinion, properly 
construed, would still afford ADA coverage for individuals with 
epilepsy, diabetes, and other conditions that Congress clearly 
contemplated as being covered by the statute. But experience with the 
Sutton holding has proved me wrong. Lower courts have employed that 
holding to deny protection to people with muscular dystrophy, diabetes, 
epilepsy, and many other conditions that would have seemed clearly to 
fall within the heartland of the statute's coverage.\5\ And the U.S. 
Supreme Court exacerbated the problem by declaring in Toyota that the 
statute ``need[s] to be interpreted'' as incorporating ``a demanding 
standard'' for coverage.\6\ These developments have convinced me that a 
change to the statute is badly needed. The ADAAA is a reasonable 
compromise that addresses the vast bulk of the problems created by the 
restrictive judicial decisions. The bill deserves this committee's 
support.
---------------------------------------------------------------------------
    \4\ Samuel R. Bagenstos, Subordination, Stigma, and ``Disability,'' 
86 Va. L. Rev. 397 (2000).
    \5\ See H.R. Rep. No. 110-730, Part 1, at 15-16 (2008).
    \6\ Toyota, 534 U.S. at 197.
---------------------------------------------------------------------------
    I have been asked to discuss two questions specifically: First, is 
the bill's provision requiring that the definition of disability be 
``construed broadly'' permissible or appropriate? Second, is the bill's 
definition of ``substantially limits'' sufficiently clear? The answer 
to both questions, I hope to show in this testimony, is ``yes.''
                           broad construction
    As part of its amendments to the ADA's definition-of-disability 
section, the ADAAA would add a set of new rules of construction. One of 
these rules is set forth in the new subsection 5(A), which states: ``To 
achieve the remedial purposes of this Act, the definition of 
`disability' in paragraph (1) shall be construed broadly.'' I 
understand that questions have been raised about the constitutionality 
or propriety of this provision. But there is nothing at all 
unconstitutional or improper about a broad-construction provision. Such 
provisions appear in a variety of statutes sprinkled across the U.S. 
Code. A few illustrative examples include the Religious Land Use and 
Institutionalized Persons Act,\7\ the Indian Land Consolidation Act,\8\ 
the statute authorizing criminal appeals by the United States,\9\ and 
the statute authorizing criminal forfeiture in narcotics cases.\10\ In 
interpreting provisions like these, the U.S. Supreme Court has applied 
them like any other statutory language, without expressing any doubt 
about their validity.\11\ Importantly, the Court has emphasized that:
---------------------------------------------------------------------------
    \7\ 42 U.S.C. Sec. 2000cc-3(g) (``This chapter shall be construed 
in favor of a broad protection of religious exercise, to the maximum 
extent permitted by the terms of this chapter and the Constitution.'').
    \8\ 25 U.S.C. Sec. 2206(i)(7) ( ``This subsection shall not be 
considered penal in nature, but shall be construed broadly in order to 
effect the policy that no person shall be allowed to profit by his own 
wrong, wherever committed.'' ).
    \9\ 18 U.S.C. Sec. 3731 ( ``The provisions of this section shall be 
liberally construed to effectuate its purposes.'' ).
    \10\ 21 U.S.C. Sec. 853(o) ( ``The provisions of this section shall 
be liberally construed to effectuate its remedial purposes.'' ).
    \11\ See, e.g., Reves v. Ernst & Young, 507 U.S. 170, 183-184 
(1993) (applying the ``liberal construction'' provision of the 
Racketeer Influenced and Corrupt Organizations Act, Pub.L. 91-452, 
Sec. 904(a), 84 Stat. 947, viz.: ``provisions of this title shall be 
liberally construed to effectuate its remedial purposes''); Tafflin v. 
Leavitt, 493 U.S. 455, 467 (1990) (same); Sedima, S.P.R.L. v. Imrex 
Co., Inc., 473 U.S. 479, 491 n.10 (1985) ( `` [I]f Congress' liberal-
construction mandate is to be applied anywhere, it is in Sec. 1964, 
where RICO's remedial purposes are most evident.'' ).

          [A broad construction] clause obviously seeks to ensure that 
        Congress' intent is not frustrated by an overly narrow reading 
        of the statute, but it is not an invitation to apply [the 
        statute] to new purposes that Congress never intended. Nor does 
        the clause help us to determine what purposes Congress had in 
        mind. Those must be gleaned from the statute through the normal 
        means of interpretation.\12\
---------------------------------------------------------------------------
    \12\ Reves, 507 U.S. at 183-184.

    In short, a broad construction ``clause only serves as an aid for 
resolving an ambiguity; it is not to be used to beget one.'' \13\
---------------------------------------------------------------------------
    \13\ Id. at 184 (internal quotation marks omitted).
---------------------------------------------------------------------------
    So understood, the ADAAA's broad-construction provision does 
nothing more than declare that, in cases of ambiguity, plaintiffs are 
entitled to have their claims of discrimination heard on the merits. It 
thus simply re-states the background principle against which Congress 
adopted the ADA in the first place--the ``familiar canon of 
construction that remedial legislation should be construed broadly to 
effectuate its purposes.'' \14\ In interpreting the ADA's definition of 
disability, the courts have utterly disregarded that principle. Worse, 
they have imposed on the statute a rule of narrow construction that 
finds no support in the text and is patently inconsistent with the 
intent of the Congress that enacted the ADA. In holding that the terms 
``substantially limits'' and ``major life activities'' are ones that 
``need to be interpreted strictly to create a demanding standard for 
qualifying as disabled,'' \15\ the U.S. Supreme Court may have imposed 
its own view of wise policy on the statute, but it did not heed the 
view of the Congress that enacted the law. The ADAAA's broad-
construction provision may prove necessary to ensure that courts heed 
Congress's policy judgment and refrain from imposing their own 
restrictive interpretations on the disability definition. Absent the 
broad-construction provision, many judges will continue to feel free to 
lean toward ``strict'' and ``demanding'' construction of the disability 
definition in cases of ambiguity. If Congress intends for ambiguities 
to be resolved in favor of claims being heard on the merits, the 
ADAAA's broad-construction provision is an apt means of ensuring that 
courts will heed that intent.
---------------------------------------------------------------------------
    \14\ Sutton v. United Air Lines, Inc., 527 U.S. 471, 504 (1999) 
(Stevens, J., dissenting) (quoting Tcherepnin v. Knight, 389 U.S. 332, 
336 (1967)).
    \15\ Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197 
(2002).
---------------------------------------------------------------------------
                the ``substantially limits'' definition
    ``Substantially limits'' is a crucial term in the statute's 
definition of disability,\16\ but the ADA does not define it. 
Unfortunately, the word ``substantial'' is notoriously protean. The 
U.S. Supreme Court itself has pointed out that ``the word `substantial' 
can have two quite different--indeed, almost contrary--connotations.'' 
\17\ (To use the Court's example, the term has a very different meaning 
in the statement, ``He won the election by a substantial majority,'' 
than it does in the statement, ``What he said was substantially true.'' 
\18\ ) The courts have exploited this ambiguity to impose on the ADA 
the narrowest possible interpretation of the term. The ADAAA solves 
this problem by adding, as section 3(2) of the ADA, a definition of 
``substantially limits'' that incorporates the familiar materiality 
test: ``The term `substantially limits' means materially restricts.''
---------------------------------------------------------------------------
    \16\ See 42 U.S.C. Sec. 12102(2)(A).
    \17\ Pierce v. Underwood, 487 U.S. 552, 564 (1988).
    \18\ Id.
---------------------------------------------------------------------------
    Application of a materiality standard ``does not lend itself to 
mechanical resolution'' because fact settings differ.\19\ But, as 
Justice Scalia (writing for the Court) has explained, ``judges are 
accustomed to using [such a standard], and can consult a large body of 
case precedent'' in a number of areas for guidance.\20\ Because 
materiality is a concept familiar to judges, there is no particular 
need to elaborate that concept further in the bill. And indeed, the 
restrictive effects of impairments often differ from person to person. 
There is a limit to the degree to which the materiality concept can be 
further elaborated if it is to take those factual differences into 
account.
---------------------------------------------------------------------------
    \19\ Kungys v. United States, 485 U.S. 759, 771 (1988).
    \20\ Id. at 772.
---------------------------------------------------------------------------
    That said, if the committee believes that additional elaboration in 
the statutory text is necessary, one possibility readily suggests 
itself. The House Judiciary Committee's report on the ADAAA suggests 
that ``materially restricts'' is measured against the kinds of 
restrictions that most people, or the average person, face.\21\ The 
EEOC's current regulations--although they are not framed as 
implementing a materiality standard--incorporate the same comparative 
insight. They define ``substantially limits'' as `` [s]ignificantly 
restricted as to the condition, manner, or duration under which an 
individual can perform a particular major life activity as compared to 
the condition, manner, or duration under which the average person in 
the general population can perform that same major life activity.'' 
\22\ The committee, accordingly, could simply adapt the current EEOC 
``substantially limits'' regulation, deleting the ``significantly 
restricted'' language, and incorporate it in the ADAAA's text after the 
``materially restricts'' sentence. The result might look like the 
following: `` `Materially restricts' refers to a restriction on the 
condition, manner, or duration of an individual's ability to engage in 
a major life activity as compared to that of the average person [or 
`most people' ].'' Although I do not believe an addition like this is 
necessary, it would not, so far as I have been able to determine, 
introduce problems in application. If the committee believes 
elaboration of the materiality standard is necessary, the modified EEOC 
language is likely to be the best approach.
---------------------------------------------------------------------------
    \21\ See H.R. Rep. No. 101-730, Part 2, at 16 (2008) (defining 
``material'' by reference to the ``middle of the spectrum'' 
experience).
    \22\ 29 CFR Sec. 1630.2(j)(1)(ii).
---------------------------------------------------------------------------
                         objections to the bill
    I have seen two basic objections asserted against the ADAAA. Both 
are misplaced.
    First, a memorandum circulated by the Heritage Foundation contends 
that the ADAAA will entitle people with minor or bogus medical 
conditions to receive accommodations from employers, thereby burdening 
business and reducing the employment prospects of people with 
disabilities.\23\ That argument misunderstands the bill. It is doubtful 
that the sorts of minor impairments the memorandum discusses would 
satisfy the ``materially restricts'' requirement; if not, those 
impairments could not be covered as actually substantially limiting a 
major life activity. (If so, and they actually require accommodation to 
enable individuals with them to work, it would be hard to call them 
minor or bogus.) And the bill makes clear that reasonable accommodation 
is not required for individuals who are covered only under the 
``regarded as'' prong of the disability definition.\24\ The ADAAA 
requires employers to provide accommodation only for those conditions 
that materially restrict major life activities. And it makes no change 
to the ADA's current accommodation language, which makes clear that an 
employer need provide accommodations only when doing so is reasonable 
and can be accomplished without undue hardship.\25\
---------------------------------------------------------------------------
    \23\ See Andrew M. Grossman & James Sherk, The ADA Restoration Act: 
Defining Disability Down (July 2, 2008).
    \24\ See H.R. 3195, Sec. 6 (new 42 U.S.C. Sec. 12201(g)).
    \25\ See 42 U.S.C. Sec. 12112(b)(5).
---------------------------------------------------------------------------
    Second, some in the higher education community have expressed 
concern that expansion of the disability definition will compromise 
academic standards.\26\ But nothing in the ADAAA would change the 
portions of the ADA that require only ``reasonable'' modifications that 
do not ``fundamentally alter'' a university's program.\27\ Courts have 
accorded educators great deference in determining whether a proposed 
accommodation would be consistent with academic standards.\28\ Nothing 
in the ADAAA would change that.
---------------------------------------------------------------------------
    \26\ See Sara Lipka, House Committee Approves Bill to Clarify Who 
Qualifies Under Disability Law, Chronicle Of Higher Ed.: Today's News 
(June 19, 2008), available at http://chronicle.com/daily/2008/06/
3451n.htm.
    \27\ See 42 U.S.C. 12182(b)(2)(A)(ii); 28 CFR Sec. 35.130(b)(7).
    \28\ See, e.g., Zukle v. Regents of University of California, 166 
F.3d 1041, 1047-1048 (9th Cir. 1999) (collecting cases).
---------------------------------------------------------------------------
    The ADAAA is an essential bill to overturn the restrictive 
decisions of the U.S. Supreme Court and lower courts. It deserves the 
committee's support. I look forward to your questions.

    Senator Harkin. Thank you, Professor Bagenstos. Now we turn 
to Jo Anne Simon, Esq. from the Law Office of Jo Anne Simon in 
Brooklyn, NY. Ms. Simon has been in the field of working with 
the disability community for a long, long time.
    Ms. Simon, welcome.

  STATEMENT OF JO ANNE SIMON, ESQ., THE LAW OFFICE OF JO ANNE 
                      SIMON, BROOKLYN, NY

    Ms. Simon. Thank you, Mr. Chairman and Senator Enzi. Thank 
you very much for holding this hearing.
    I would like to address a few comments about to the impact 
of the ADA Amendments Act with regard to education and high 
stakes standardized testing. The education community, both K-12 
and higher education, have raised some concerns with regard to 
the number of people who would be requesting accommodations 
under the ADA Amendments Act, essentially stating that this 
would enormously expand the people who would be requesting 
services under the law.
    I believe that to be entirely false for two reasons. First, 
both the K-12 and higher education community are, for the most 
part, covering these students. This is not going to swell their 
ranks.
    And second, I think it's very important that we keep 
separate the notion of whether one is protected by the act from 
whether or not one is entitled to a service under the act. The 
act, in fact, requires reasonable accommodations for those 
people with disabilities who may need them and they may need 
them in certain situations and not in others. So the very fact 
that one needs an accommodation should not be a litmus test for 
whether or not one has a disability. That is the second step of 
an analysis and that step is not changed at all by this 
amendment.
    The standardized testing industry has raised several 
arguments with regard to, again, the increase in the number of 
requests for accommodations. I believe that also will not 
change under this act. The fact is that most people who have a 
disability are already requesting accommodations when they are 
taking one of these tests.
    What might change is the fact that certain people would be 
extended accommodations on these tests that are not currently 
because of the bogus and very, very narrow interpretation of 
the U.S. Supreme Court case law. These requests are for the 
most part denied not because the request is not reasonable, but 
because the entity has substituted its judgment for that of the 
physician and said, ``no, this person does not have a 
disability'' and applied the Sutton and Toyota standards.
    To the extent that fears have been raised about the 
validity of the tests after accommodations have been provided, 
this is not an issue that is really addressed by this 
legislation. There is already existing a defense for any 
organization that if a requested accommodation would 
fundamentally alter the nature of the tests, then it need not 
be provided. However, these entities are providing 
accommodations for a number of people with disabilities and 
there is a reason for that.
    One is a blue ribbon panel commissioned by the College 
Board who are the people who make the SAT has already examined 
this issue and found that extended time, which is, the most 
commonly requested accommodation does not compromise either the 
validity or the score comparability. Therefore, I think the 
issues that are raised represent fears, represent concerns, but 
they do not represent facts. Thank you. I look forward to your 
questions.
    [The prepared statement of Ms. Simon follows:]
               Prepared Statement of Jo Anne Simon, Esq.
    Mr. Chairman and members of the committee, I am pleased to submit 
this testimony for the record. My name is Jo Anne Simon. For the past 
12 years I have maintained a law practice concentrating on disability 
rights in education, high stakes standardized testing and employment 
discrimination matters. I have been an adjunct Assistant Professor at 
Fordham University School of Law for the past 10 years and previously 
served as Staff Attorney for Hofstra University School of Law's 
Disabilities Law Clinic for 4 years. I have served as counsel on a 
number of disability rights cases, including Bartlett v. NYS Board of 
Law Examiners.\1\
---------------------------------------------------------------------------
    \1\ Bartlett v. New York State Board of Law Examiners, 970 F. Supp. 
1094 S.D.N.Y. 1997) (Bartlett I); aff 'd 2 F. Supp. 2d 388 (S.D.N.Y. 
1997) (Bartlett II); aff 'd in part, rev'd & remanded in part, 156 F. 
3d 321 (2d Cir. 1998)(Bartlett III); vacated and remanded, 119 S.Ct. 
2388 (1999)(Bartlett IV); aff 'd in part & remanded, 226 F. 3d 69 (2d 
Cir. 2000)(Bartlett V); 2001 WL 930792 (S.D.N.Y. Aug. 15, 2001) 
(Bartlett VI). See also, Root v. Georgia Board of Veterinary Medicine, 
114 F.Supp.2d 1324 (N.D. Ga. 2000) rev'd on other grounds, No. 00-14751 
(11th Cir. 2001).
---------------------------------------------------------------------------
    I have been asked specifically to address the impact of the ADA 
Amendments Act, as passed by the House, on schools and universities.
    Like Professor Bagenstos, I both study and litigate disability 
rights cases. I strongly support this bill. The ADAAA will do no more 
than protect those Congress originally intended to protect. It would 
overturn the mitigating measures holding of Sutton v. United Airlines 
which has been applied in such a way as to deprive large numbers of 
individuals with disabilities of the law's protections. These are 
people that Congress meant to protect when it enacted the ADA. The 
ADAAA will also overturn the restrictive interpretation of 
``substantially limits'' as applied in Toyota and decisively reject 
that Court's requirement that meeting the threshold for the law's 
protections is a strict and demanding standard. No other civil rights 
law so stringently and stingily scrutinizes those whom it seeks to 
protect.
    The threshold issue of who is covered by the ADA has formed the 
bulk of the case law as covered entities have sought to reject coverage 
based on narrow interpretations by the U.S. Supreme Court. While the 
Court has held that the determination of whether a person is protected 
by the ADA is to be made on a case-by-case basis,\2\ the Court's 
``demanding standard'' \3\ is harshly inconsistent with the original 
intent of the Congress which enacted the ADA, and has given rise to 
cookie-cutter like formulations which sacrifice substance to form.
---------------------------------------------------------------------------
    \2\ Sutton v. United Airlines, 527 U.S. at 482 (1999). ``. . . 
whether a person has a disability under the ADA is an individualized 
inquiry'').
    \3\ Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197 
(2002).
---------------------------------------------------------------------------
                 impact of the adaaa on k-12 education
    Under the ADAAA, similar to the current language of the ADA and 
that of section 504, an impairment must ``substantially limit'' a major 
life activity. An impairment meets this test if it ``materially 
restricts'' a major life activity. Major life activities include such 
things as learning, reading, thinking, and concentrating, as well as 
the operation of various bodily functions.
    The ADAAA directs courts not to take into account mitigating 
measures when determining if impairments substantially limit a major 
life activity. This will help children with impairments, such as 
diabetes and epilepsy, who manage their impairments with medication. 
Similarly, it will help children with learning disabilities who manage 
to succeed academically by working round-the-clock to complete 
assignments as a means of overcoming the effects of their impairment on 
learning. In addition, a key purpose provision of the ADAAA overturns 
the ``demanding standard'' for interpreting ``substantially limits'' 
that had been articulated by the U.S. Supreme Court in the Toyota case.
    The ADAAA will ensure that students with disabilities receive 
appropriate protection under the ADA and section 504. While few Federal 
court decisions have held that elementary or secondary school children 
do not have disabilities under these laws,\4\ you heard from Sue Gamm's 
testimony that school districts and State educational agencies 
routinely refuse to extend these laws' protections to children who have 
managed to achieve high or even passing grades despite serious 
impairments. Ms. Gamm provided the example of a hearing officer's 
decision that a 10th grader who worked exceptionally hard to earn As 
and Bs was not substantially limited in learning even though she had 
difficulty organizing ideas and breaking down complex written material, 
took a long time to break down material, had difficulty completing 
assignments on time and problems with executive functioning, and 
occasionally failed tests.\5\
---------------------------------------------------------------------------
    \4\ Children have lost only a small number of these cases on the 
ground that they did not have disabilities under the ADA or section 
504. See, e.g., Costello v. Mitchell Public School District 79, 266 
F.3d 916 (8th Cir. 2001) (epilepsy, ADD, unspecified learning 
disabilities, depression and suicidal thoughts); Kropp v. Maine School 
Administrative Union #44, 2007 WL 551516 (D. Me. Feb. 16, 2007) 
(``severe persistent'' asthma requiring high-dose inhaled 
corticosteroids, allergies requiring shots, and gastroesophageal 
reflux); Garcia v. Northside Independent School District, 2007 WL 26803 
(W.D. Tex. Jan. 3, 2007) (severe asthma that caused child to collapse 
and die during running exercises at school); Smith ex rel C.R.S. v. 
Tangipahoa Parish School Bd., 2006 WL 3395938 (E.D. La. Nov. 22, 2006) 
(asthma and allergies requiring daily medication and use of EpiPen); 
Marshall v. Sisters of Holy Family of Nazareth, 399 F. Supp. 2d 597 
(E.D. Pa. 2005) (ADHD); Block v. Rockford Public School Dist., 2002 WL 
31856719 (N.D. Ill. Dec. 20, 2002) (asthma and allergies requiring use 
of inhaler).
    \5\ Indeed, the Department of Education's Office of Civil Rights 
has issued guidance making clear that mitigating measures must be 
considered in education claims brought under the ADA and section 504. 
Sutton Investigative Guidance: Consideration of ``Mitigating Measures'' 
in OCR Disability Cases (Sept. 29, 2000).
---------------------------------------------------------------------------
    This is precisely the problem that the ADAAA is intended to 
address. Students like that 10th grader should not be denied the 
protections of the ADA simply because they have worked hard to overcome 
the effects of a disability.
    Moreover, the notion that a student cannot have a reading or 
learning disability if he or she manages to attain high or passing 
grades is fundamentally wrong. It reflects an outmoded and inaccurate 
understanding of individuals with disabilities as individuals who are 
completely incapable of performing well.
    As the Department of Justice explains in its ADA regulatory 
guidance, a person has a disability if he or she is substantially 
limited in the condition, manner, or duration under which he or she 
performs a major life activity as compared to the condition, manner, or 
duration under which most people perform the activity. This is the 
correct way to apply the definition of disability--a student who has an 
impairment that substantially limits the conditions under which she 
learns, or the manner in which she learns, has a disability even if she 
manages to obtain average grades. The ADA's goal is not equal test 
scores, but equal opportunity.
    Ms. Gamm testified that schools are accommodating many students 
with disabilities informally, but should not be subjected to the 
planning and evaluation requirements of section 504. Congress did not 
intend that students with disabilities who need accommodations should 
be left without legal rights and be dependent solely on the good will 
of schools to provide the help they need in order to learn. In any 
event, section 504 imposes minimal planning and evaluation requirements 
that should effectively be met by any school that is adequately meeting 
the needs of a child with a disability.\6\
---------------------------------------------------------------------------
    \6\ 34 CFR Sec. Sec. 104.33, 104.35.
---------------------------------------------------------------------------
    School districts that have been complying with the ADA and section 
504 have nothing to fear from the ADAAA. Indeed, they should welcome 
the clarity that the amendments bring.
    Most students, of course, receive their accommodations (related and 
supplemental services) under the Individuals with Disabilities 
Education Act (IDEA) and will continue to be so served.\7\ Some 
students, however, receive their accommodations solely under section 
504 and the ADA. These same students will continue to receive such 
accommodations. For those children who have been inappropriately denied 
the protections of the law, the new bill will help clarify the coverage 
they should have been receiving.
---------------------------------------------------------------------------
    \7\ Twelve percent of public school students receive services under 
the IDEA, compared with approximately 1.2 percent under section 504 
only. See Rachel A. Holler & Perry A. Zirkel, Section 504 and Public 
Schools: A National Survey Concerning ``Section 504-Only'' Students, 
National Association Of Secondary School Principles Bulletin, March 
2008, at 24, 30.
---------------------------------------------------------------------------
    Concerns that the ADAAA will compel schools to provide services to 
students who don't really need them are misplaced. Whether a student 
has a disability and what, if any, services he needs are two distinct 
issues. Take the hypothetical child with Attention Deficit 
Hyperactivity Disorder whose medication fully corrects the symptoms of 
his disorder. That is actually unlikely to be the case since medication 
does not improve deficits in working memory, processing speed, lexical 
access or executive functioning.\8\ However, even if medication had a 
completely corrective effect, that child would still be protected from 
discrimination based on his disability. Protection from discrimination, 
however, only requires the provision of services where there is a 
demonstrated need for those services. The ADA does not require needless 
service provision. The greater danger, of course, is that a child 
entitled to protection and perhaps in need of services, will not get 
them, and will not have the opportunity to learn what he could and 
should be learning.
---------------------------------------------------------------------------
    \8\ Swanson, H.L. & Jerman, O. (2006). Math disabilities: A 
selective meta-analysis of the Literature. Review of Educational 
Research, 76, 249-274.
---------------------------------------------------------------------------
             impact of the adaaa on postsecondary education
    While the number of students with disabilities on American campuses 
is growing, today only about 6 to 8 percent of college students 
identify themselves as having a disability.\9\ Unlike K-12 schools, 
postsecondary institutions bear no responsibility for identifying such 
students and we rely on students' self-identification in order to 
ensure that they receive necessary services. It is extremely unlikely 
that more college students will request help for a disability due to a 
change in the legal definition of disability under the ADA. Most 
students are not aware of the nuances of the law. Rather, they ask for 
help because they were identified with a disability prior to arriving 
at the postsecondary institution, or because they are diagnosed with a 
disability later in life. It is their experience and diagnosis of a 
disability that triggers the request for help--not a wording change in 
the law.
---------------------------------------------------------------------------
    \9\ According to the Association on Higher Education And Disability 
(AHEAD), the average disability services office has a mean of 7 staff 
members, each of whom serves an average of 100 students (100-1 ratio). 
Harbour, Wendy S. 2008 Biennial AHEAD Survey of Disability Services and 
Resource Professionals in Higher Education, 2008. AHEAD: Huntersville, 
NC. Other student services programs are generally staffed at higher 
ratios. For example, many university housing programs are staffed at a 
ratio of 10-1.
---------------------------------------------------------------------------
    Indeed, the vast majority of postsecondary institutions are doing 
an admirable job of providing welcoming and compliant environments for 
students with disabilities. While the ADAAA would require changes by 
those institutions that are applying an unduly restrictive definition 
of disability in reliance on U.S. Supreme Court cases, those changes 
are appropriate. Moreover, such institutions are the exception, not the 
norm.
    The ADAAA will prevent the inappropriate loss of protection for 
students who use various measures to compensate for the limitations 
caused by their disabilities. It provides that compensatory mechanisms 
that an individual has used to circumvent some of his or her 
limitations (for example, listening to books on CD to compensate for 
limitations caused by dyslexia) cannot be used as evidence that the 
students do not experience limitations in the first place. Some higher 
education and standardized testing entities have determined whether a 
student is ``substantially limited'' in learning by comparing an 
individual's scores with those of the statistical average standardized 
achievement test scores (in other words, below 16th percentile, or 
virtual failure) or by comparing an individual's real-life outcomes 
with those of the average person (for example, determining that a 
student is not disabled simply because he has a graduate degree and the 
average person doesn't). As a result, students with serious 
disabilities who have managed to achieve higher than average test 
scores or outcomes by taking steps to mitigate the effects of their 
disabilities subsequently lose protection under the ADA simply for 
having taken those steps. The fact that an individual has managed to 
compensate for his or her impairment, through whatever means, should 
not be used to punish the individual. The touchstone for accommodations 
in the testing arena should be that set forth in Department of Justice 
regulations: whether an accommodation is needed in order to ensure that 
the examination results ``accurately reflect the individual's aptitude 
or achievement level.'' \10\
---------------------------------------------------------------------------
    \10\ 28 CFR Sec. 36.309.
---------------------------------------------------------------------------
    Moreover, as is true now, under the ADAAA, postsecondary students 
with disabilities will still need to demonstrate that they are 
qualified and meet the essential eligibility criteria for an 
educational program or course of study.\11\ A student who cannot meet 
essential eligibility criteria will not prevail on a claim brought 
under the ADA. Such a claim should be analyzed based on the merits and 
not on an inappropriately narrow definition of disability.
---------------------------------------------------------------------------
    \11\ 42 U.S.C Sec. 12131(2).
---------------------------------------------------------------------------
    Considering whether an individual has a disability is distinct from 
determining what accommodations might be reasonable in a given 
circumstance. Under current law, colleges and universities are not 
required to make modifications or offer accommodations that 
fundamentally alter programs or services or compromise academic 
standards.\12\ The ADAAA does not change this. Colleges and 
universities will have the same ability to maintain academic standards 
that they do under current law.
---------------------------------------------------------------------------
    \12\ 42 U.S.C Sec. 12182(b)(2).
---------------------------------------------------------------------------
    Concerns that the numbers of students bringing legal actions will 
increase are unjustified. Similar concerns were raised in 1977 before 
section 504 regulations were promulgated, and again in 1990 when the 
ADA was enacted. Nevertheless, after over 30 years of protections, 
roughly 6 to 8 percent of the postsecondary population reports a 
disability and costs are minimal in comparison to overall institutional 
budgets. There is no evidence to support a concern about academic 
standards; rather it seems clear that students with disabilities who 
graduate from our colleges and universities are fine examples of the 
power of American education. The law does not require institutions to 
fundamentally alter the nature of their services or programs. Moreover, 
considerable deference has historically been given to educational 
institutions' academic judgments. This deference helps institutions 
balance the competing equities while maintaining program standards. 
Although discrimination may not masquerade as deference to academic 
judgment, the courts have struck a balance well understood by all.\13\
---------------------------------------------------------------------------
    \13\ Guckenberger v. Boston University, 8 F. Supp. 2d 82 (D. Mass. 
1998), Wynne v. Tufts University School of Medicine, 976 F.2d 791 (1st 
Cir. 1992), Ewing v. Michigan, 474 U.S. 214 (1985).
---------------------------------------------------------------------------
                          standardized testing
    The standardized testing industry has aggressively and rigidly 
applied Sutton's and Toyota's narrow rulings. Testing entities have 
applied Sutton and Toyota as if they had replaced all known diagnostic 
criteria; their approaches have elevated form over substance and 
ignored scientific practice.\14\ Some courts have substituted the 
covered entity's judgment that an applicant does not have a disability 
for the individual's physician's judgment rather than get to the merits 
of the applicant's request.
---------------------------------------------------------------------------
    \14\ See Bartlett VI at 8. See also, Barkley, Russell A. Ph.D.; 
Biederman, Joseph M.D., Toward a Broader Definition of the Age-of-Onset 
Criterion for Attention-Deficit Hyperactivity Disorder. Journal of the 
American Academy of Child & Adolescent Psychiatry, September 1997, PP 
1204-1210.
---------------------------------------------------------------------------
                     a word about public perception
    Unfortunately, incorrect public perceptions have driven the courts' 
analyses of many ADA claims, and have often replaced objective 
judgment, to the detriment of individuals with disabilities. This has 
particularly been true of standardized testing at all levels of 
education, and markedly at the college admissions level.
    A popular myth is that students without disabilities seek 
accommodations on the SAT and other tests in order to achieve a 
competitive edge on the test. Underlying this perception is a belief 
that with extra time, everyone would perform significantly better,\15\ 
and that students from families of means will therefore unfairly seek 
this type of advantage.
---------------------------------------------------------------------------
    \15\ But see Bartlett VI at 42 ( ``this assumption is belied by 
research showing that extra time does not have a significant impact on 
the performance of individuals who do not have learning disabilities.'' 
)
---------------------------------------------------------------------------
    This perception has been shown to be wrong. A class action suit 
filed in 2002 alleged that ETS's practice of ``flagging'' the scores of 
students who had taken the exam with disability accommodations violated 
the law. As part of the settlement, the College Board agreed to create 
a Blue Ribbon Panel of experts to review whether scores for SATs taken 
under standard administration could be validly compared with those 
taken by students with disabilities under non-standard conditions. If 
they could be validly compared, then there was no need to ``flag'' the 
exams in order to maintain the integrity of the exams.
    The panel unanimously agreed that the practice of flagging was not 
needed. Based on a thorough review of all the scientific evidence, the 
Blue Ribbon Panel concluded that when students with learning 
disabilities took exams under standard conditions, the scores they 
received were not valid reflections of their actual knowledge. 
Conversely, when such students received appropriate accommodations, 
their scores were comparable to those of students without learning 
disabilities who had not received accommodations.\16\ Thus, there was 
no advantage being given to students with disabilities by virtue of the 
accommodations.\17\
---------------------------------------------------------------------------
    \16\ Gregg, N., Mather, N., Sawpit, S., and Sire, S. (2002) The 
Flagging Test Scores of Individuals with Disabilities Who Are Granted 
the Accommodation of Extended Time: A Report of the Majority Opinion of 
the Blue Ribbon Panel on Flagging, at 6.
    \17\ In fact, while over prediction is often cited as a concern in 
connection with extended time accommodations, the SAT (the only test 
for which such data is available) over predicts slightly more for 
African-American students than students with disabilities. To the 
extent this represents a problem, it is with the test or the data, not 
students with disabilities. Id. at 7, 8.
---------------------------------------------------------------------------
    Based on the report from the Blue Ribbon Panel, the College Board 
ceased flagging in 2004.
    Subsequent studies have confirmed the conclusions of the Blue 
Ribbon panel.\18\ Repeatedly, studies have shown that students without 
disabilities do not perform significantly better with extended time; 
students perform significantly better with extended time only when they 
need the accommodations because of a learning disability.
---------------------------------------------------------------------------
    \18\ See, e.g., Cohen, A., Gregg, N., and Den, M. (2005) The Role 
of Extended Time and Item Content on High Stakes Mathematics Test, 
Learning Disabilities Research & Practice, 20, 225-233 (finding that 
extended time does not improve scores unless the test-taker has a 
disability and sufficient mastery of content). A review of such studies 
by Ofiesh, et al., found that the results of all studies uniformly 
indicated that under time constraints, students with learning 
disabilities scored significantly lower than their peers. When provided 
with extra time, students with learning disabilities had no significant 
score differences from those of their peers who received no extra time. 
Journal of Psychoeducational Assessment, Vol. 23, No. 1, 35-53 (2005); 
Journal of Postsecondary Education and Disability, Vol. 14, No. 1 
(2000). See also, Mandinach, Bridgeman, Cahalan-Laitusis, and Trapani 
(2005) The Impact of Extended Time on SAT Performance. Research Report 
2005-8, New York: The College Board. http://
professionals.collegeboard.com/data-reports-research/cb/impact-
extended-time-sat; and Lindstrom and Gregg (2007) Journal of Learning 
Disabilities (in review)(large scale meta-analysis found that extended 
time does not change the construct validity of these tests.).
---------------------------------------------------------------------------
    Accommodations do not improve results; they facilitate the 
demonstration of knowledge by students who are disadvantaged by the 
test's mechanics. Aren't we supposed to be testing what students have 
learned? Why are we suspicious when they can show it? In the Bartlett 
case, after 21 days of trial, two trips to the Second Circuit and one 
to the U.S. Supreme Court, on remand, the district court found that:

          The Board [of Law Examiners' ] preoccupation with test scores 
        and its distrust of clinical judgments, however, seems to be 
        driven, at least in part, by misperceptions and stereotypes 
        about learning disabilities. . . . [t]he Board appears to view 
        applicants who claim to be learning disabled with suspicion. 
        Bartlett I, 970 F.Supp. at 1136. Of particular concern . . . 
        were alleged comments [that] . . . ``anyone who has the money 
        can pay for a report [concerning a learning disability].'' Id. 
        This same attitude was evidenced at the remand trial when 
        defendants and their experts implied on numerous occasions that 
        plaintiff might be ``faking'' her reading problems or 
        contriving her errors.

Bartlett VI, at 42.
    In closing, I highlight the U.S. Supreme Court's decision in PGA 
Tour, Inc. v. Martin.\19\ In PGA Tour, the Court held that the use of a 
cart by a professional golfer with a physical disability did not 
fundamentally alter the game of golf even though the PGA Tour's 
ordinary requirement was that golfers had to walk the course. The U.S. 
Supreme Court stated:
---------------------------------------------------------------------------
    \19\ PGA Tour, Inc. v. Casey Martin, 532 U.S. 661 (2001).

          The purpose of the walking rule is therefore not compromised 
        in the slightest by allowing Martin to use a cart. A 
        modification that provides an exception to a peripheral 
        tournament rule without impairing its purpose cannot be said to 
        ``fundamentally alter'' the tournament. What it can be said to 
        do, on the other hand, is to allow Martin the chance to qualify 
        for and compete in the athletic events petitioner offers to 
        those members of the public who have the skill and desire to 
        enter. That is exactly what the ADA requires.\20\
---------------------------------------------------------------------------
    \20\ Id. at 690 (2001).

    That is all the ADAAA will do--provide access to the competition 
that is the stuff of American life: school, work and play. The ADAAA 
will prevent covered entities from putting individuals with 
disabilities in a position where everything they have done to better 
their circumstances will be used against them in a court of law. I 
---------------------------------------------------------------------------
strongly urge the committee's support of this bill.

    Senator Harkin. Thank you very much, Ms. Simon. Now we turn 
to Michael Eastman, Employment Policy Director of the U.S. 
Chamber of Commerce.
    Mr. Eastman, welcome.

STATEMENT OF MICHAEL EASTMAN, EMPLOYMENT POLICY DIRECTOR, U.S. 
              CHAMBER OF COMMERCE, WASHINGTON, DC

    Mr. Eastman. Thank you, Mr. Chairman and members of the 
committee. I am pleased to be here before you today to talk 
about the ADA and the Chamber's support of the ADA Amendments 
Act. About a year ago the ADA Restoration Act was introduced 
and the Chamber sent a letter strongly critical of that act to 
members of the Senate.
    What I would like to do in this opening time is talk to you 
about how we got from there to where we are today. We 
recognized that the proponents of the Restoration Act, the 
folks in the disability community had articulated a very 
legitimate need for legislative solution, and while reasonable 
people can disagree about the outcome of any one court 
decision, when taken as a whole aggregating all the Federal 
court decisions under the ADA, it is incontrovertible that 
courts have interpreted the ADA too narrowly and a legislative 
fix is needed.
    So we sat down with the disability community as well as 
others in the business community and worked through to see if 
we could find common ground in this area--Is there an approach 
that we can live with and the disability community can live 
with?--over several months, in more meetings and hours than I 
care to admit.
    When it became clear that we might be able to find a way 
through this, we engaged in an extensive vetting process. For 
the chamber that meant we engaged trusted practitioners, our 
task force of members interested in ADA issues, our labor 
policy committee and its subcommittee on Equal Employment 
Opportunity. Other members of the business community had their 
own vetting processes. And then we entered into larger 
processes with other members of the business community, trade 
associations in an attempt to hear from as many companies as 
possible about what the real world impact of this approach 
might be.
    At the end of the day I am pleased that we can support the 
approach the House took in the ADA Amendments Act and I hope 
that as things go through the Senate process we will be able to 
support the approach the Senate takes as well.
    With that, I will conclude and we can save the substantive 
discussion for later.
    Senator Harkin. Mr. Eastman, I might just add that this 
reminds me of the previous ADA of 1988, when Senator Weicker 
and I introduced the first one. The U.S. Chamber was 
unalterably opposed, but over a period of 2 years, working 
together as you have done now, we were able to work out all our 
compromises and the initial ADA had the full support of the 
U.S. Chamber of Commerce. I remember that very well. It was a 
great working relationship and I appreciate your being involved 
in all these discussions this year and your support of this 
bill.
    Mr. Eastman. Thank you.
    Senator Harkin. Sue Gamm, Primary Consultant, Public 
Consulting Group from Chicago, IL.
    Ms. Gamm, welcome.

 STATEMENT OF SUE GAMM, PRIMARY CONSULTANT, PUBLIC CONSULTING 
                       GROUP, CHICAGO, IL

    Ms. Gamm. Thank you very much. I really appreciate the 
opportunity to be here to speak with the esteemed Senators as 
well as my colleagues around the table.
    Just to give you a context for my statement, I have spent 
the past 30 years working with the Office for Civil Rights, 
with the U.S. Department of Education, as well as heading up 
special ed services with the Chicago Public Schools. The last 3 
years I have been consulting around a lot of the country and 
training around issues involving kids with disabilities in 
elementary and secondary education. So, that's my focus for my 
comments.
    First, let me say that we understand and support efforts 
being taken to address issues that have arisen primarily in the 
area of employment. We believe, though, and this is based on my 
discussions with colleagues over the last period of time around 
the country who are obligated to comply and actually implement 
whatever provisions that are established and there is a belief 
that while this is a great effort that there really are some 
unintended consequences that haven't been fully explored around 
impact with elementary and secondary education. And I would 
just disagree with my esteemed colleague, Ms. Simon.
    We do believe that a change or the discussion around these 
different provisions would have a profound impact or could have 
a profound impact. I don't have a crystal ball but I'm basing 
it on what we believe or what we know at this time.
    Unlike the employment arena, there are proactive specific 
procedural requirements that are quite time consuming, involve 
human physical resources around child find, elementary and 
secondary education, the evaluation process, the planning 
process for determining the kind of accommodations that the 
child might need if eligible as well as procedural safeguards 
that could include a due process hearing that could actually go 
all the way up to the U.S. Supreme Court.
    Interestingly, although this field has exploded in the area 
of the Individuals with Disabilities Education Act in terms of 
litigation and several high level court decisions, there has 
been a virtual silence, if you will, in the area of section 
504, which seems to imply to many of us that things have been 
working well, pretty much.
    I have three areas of concerns around the bill that I won't 
go into detail about, but just highlight. One has to do with 
the change in the new definition for ``substantially limits.''
    I believe that given the comments in the House report that 
this really would impact who would be eligible as a disability 
and that it would include those students who actually might be 
achieving higher than most students in the school district, the 
higher achieving kids, if you will.
    There is long precedents that that is not the case. It was 
the poor performing students which is even a greater number of 
children, and the third area would be around mitigating 
measures that I will talk about later.
    The last thing I want to say, as we know the school 
districts, the IDEA gets no funds for their processes around 
section 504 services and our advocacy for Medicaid funding has 
not resulted in any relief.
    Those are my concerns and I welcome the opportunity to talk 
about them more.
    Senator Harkin. Thank you very much, Ms. Gamm.
    Now we turn to Terry Hartle, Senior Vice President of 
American Council on Education.
    Mr. Hartle.

 STATEMENT OF TERRY W. HARTLE, SENIOR VICE PRESIDENT, AMERICAN 
              COUNCIL ON EDUCATION, WASHINGTON, DC

    Mr. Hartle. Thank you very much, Mr. Chairman. I appreciate 
the opportunity to participate in this roundtable discussion. 
We would like to thank the Senate HELP Committee for giving us 
the opportunity to be here to share our views.
    Colleges and universities take their responsibilities under 
the ADA seriously and are committed to providing greater access 
to higher education and its benefits for all students including 
students with disabilities. According to the Department of 
Education, more than 10 percent of all undergraduates identify 
themselves as students with disability, that's more than 1.8 
million individuals. Our institutions have disability support 
service offices with dedicated staff who respond to hundreds 
and sometimes thousands of requests for educational 
accommodation on an annual basis.
    Based on an informal survey of large research universities, 
we found the average university employs 17 individuals working 
on disability issues with the largest institution reporting 60 
professional staff. The average number of requests they deal 
with per year ranges from 6,000 to 20,000.
    Although our institutions are employers, and quite often we 
are among the largest employers in the State, we have not taken 
an issue with the broader disability definition of the bill or 
its potential impact on us as employers.
    But in our roles as academic institutions, the changes to 
the definitions section have the potential to expand the scope 
of students that we serve under ADA in ways that are difficult 
to fully anticipate. Given the potential of these changes to 
create new and challenging legal questions for institutions, we 
believe it's crucial that Congress reaffirm the core principle 
already present in case law protecting our institutions in 
their traditional academic role.
    Protecting the value of academic degrees and the academic 
content of programs is of fundamental importance to our 
institutions and to society. Our institutions are credentialing 
bodies, and by awarding degrees we certify that certain levels 
of educational attainment and achievement have been met. This 
is the core of what colleges and universities do.
    Therefore, I am here today to ask the Senate to reaffirm 
directly in statute the current case law principle that 
institutions need not provide an accommodation when doing so 
would fundamentally alter the essential aspects of programs or 
diminish the academic standards set by our institutions.
    Given the difficulty that exists in predicting the impact 
of this legislation on postsecondary institutions in ways the 
courts will interpret this new legislation, we strongly urge 
this committee to ensure that colleges and universities and the 
quality of their academic programs are protected directly by 
statutory language. Thank you for considering our views.
    Senator Harkin. Thank you very much, Mr. Hartle. And now we 
will close with Andrew Grossman, Senior Legal Policy Analyst, 
Heritage Foundation, Washington, DC.

  STATEMENT OF ANDREW GROSSMAN, SENIOR LEGAL POLICY ANALYST, 
              HERITAGE FOUNDATION, WASHINGTON, DC

    Mr. Grossman. Good morning, Mr. Chairman, and thank you. My 
greatest concern about the ADA Amendments Act is the definition 
of disability. This legislation would wipe out nearly two 
decades of precedence under the ADA and replace it with unclear 
language that fails to provide any guidance whatsoever to 
employers, the labor bar and the courts.
    As I detail at some length in my written testimony, it 
materially restricts language of the Amendments Act, which is 
especially problematic. It is unprecedented in disability law 
and the standard canons of statutory construction provide 
little guidance as to how a court should interpret it.
    Other changes in the legislation only exacerbate this 
problem. If the drafters of this bill sought to cabin judicial 
discretion in disability cases, they have failed. The 
consequences of this failure will be great. Uncertainty will 
lead to higher compliance costs for employers and increase the 
cost of labor. The predictable result will be slower job growth 
and a knock to the competitiveness of American businesses, 
especially small businesses that are not exempt from the act.
    Dramatically expanding the coverage of the ADA will raise 
costs across the economy and concern at a time when inflation 
is inching upwards, growth is slow and unemployment is on the 
rise. If Congress nonetheless feels compelled to do so, it 
should act in a way that imposes as little collateral damage as 
possible by putting forward clear tests and definitions and 
reducing risk and uncertainty for both disabled individuals and 
employers.
    Thank you.
    [The prepared statement of Mr. Grossman follows:]
                Prepared Statement of Andrew M. Grossman
    My name is Andrew Grossman, and I am Senior Legal Policy Analyst at 
The Heritage Foundation. The views I express in this testimony are my 
own, and should not be construed as representing any official position 
of The Heritage Foundation.
    My testimony today concerns what may seem to some a narrow and 
arcane topic: the definition of ``disability'' in the compromise 
Americans with Disabilities Act Amendments Act ( ``ADAAA,'' H.R. 3195) 
that passed the House of Representatives in June and is now before this 
August chamber. It is anything but. As evidenced by the very fact of 
this hearing, the precise definition is extremely important. It affects 
the rights and responsibilities of millions of individuals and 
employers and, over the long term, societal attitudes toward 
disability. In addition, the exact workings of the Americans with 
Disabilities Act (``ADA''), including this definition, impact the U.S. 
economy and job creation. This topic is worthy of much attention and 
consideration for all of these reasons, and I applaud the committee for 
taking the time to address it and to consider the comments of those 
testifying today.
    The definition of disability is an essential piece of the ADA's 
legal protections against discrimination. The ADA prohibits employers 
with more than 15 employees from discriminating ``against a qualified 
individual with a disability because of the disability of such 
individual in regard to job application procedures, the hiring, 
advancement, or discharge of employees, employee compensation, job 
training, and other terms, conditions, and privileges of employment.'' 
\1\ Discrimination includes ``not making reasonable accommodations to 
the known physical or mental limitations of an otherwise qualified 
individual with a disability who is an applicant or employee, unless 
such covered entity can demonstrate that the accommodation would impose 
an undue hardship on the operation of the business of such covered 
entity.'' \2\ Thus, whether an individual is disabled determines 
whether an employer must investigate and implement accommodations and 
whether an employer is subject to liability under the ADA for failing 
to do so.
---------------------------------------------------------------------------
    \1\ 42 U.S.C. Sec. 12112(a) (2008).
    \2\ 42 U.S.C. Sec. 12112(b)(5)(A) (2008).
---------------------------------------------------------------------------
    It is particularly important, then, that the definition of 
``disability'' be clear so that employers can meet their obligations 
under the law with minimal confusion and expense. Under current law, a 
disability is ``(A) a physical or mental impairment that substantially 
limits one or more of the major life activities of such individual''; 
``(B) a record of such an impairment''; or ``(C) being regarded as 
having such an impairment.'' This statutory text has been applied by 
the courts in a way that is considerably broader than the common usage 
of the word ``disability.'' Thus, ailments such as erectile dysfunction 
and high cholesterol have qualified as disabilities.\3\ Nonetheless, 
the courts, following the lead of the U.S. Supreme Court,\4\ have been 
relatively consistent in their adjudication under the ADA, providing 
employers and the labor and disability bars with some notice of what 
impairments are likely to be covered by the ADA. Though a small 
business lacking inside counsel will usually have to consult outside 
attorneys to determine whether an employee claiming a disability is 
covered by the ADA and, if so, what accommodations are reasonable, in 
many cases, the attorneys are able to render an opinion on these issues 
within a few days at modest cost--around $1,000 in typical cases. Any 
change to the definition of disability in the ADA must be made 
carefully, because it will necessarily upset the reliance of employers 
and their attorneys, increasing the costs of compliance as well as 
their uncertainty and risk of liability.
---------------------------------------------------------------------------
    \3\ Arrieta-Colon v. Wal-Mart Puerto Rico, Inc., 434 F.3d 75 (1st 
Cir. 2006); Christian v. St. Anthony Medical Center, Inc., 117 F.3d 
1051, 1053 (7th Cir. 1997).
    \4\ See, e.g., Bragdon v. Abbott, 524 U.S. 624, 631 (1998).
---------------------------------------------------------------------------
    Though some media reports characterize the definition of 
``disability'' in the current version of the ADAAA as a compromise,\5\ 
it is far from modest. It represents a radical expansion of the ADA 
that would likely have far-reaching effects and unintended 
consequences. The provision's great breadth, however, is obscured 
somewhat by its structure. Unlike prior proposed amendments to the 
ADA,\6\ the ADAAA retains the ADA's three-prong core definition of 
``disability,'' making only one small change of arguably no substantive 
import.
---------------------------------------------------------------------------
    \5\ E.g., Karoun Demirjian, Bill Clarifying Legal Meaning of 
`Disabled' Passes in House, CQ Today, June 25, 2008.
    \6\ E.g., H.R. 3195, 110th Cong. (as introduced, 2007).
---------------------------------------------------------------------------
    Unlike the current ADA, however, the ADAAA further defines two of 
these terms. Under the bill, ``a major life activity'' includes nearly 
anything an individual might do in a day. The text includes a non-
exclusive list of activities: ``performing manual tasks, seeing, 
hearing, eating, sleeping, walking, standing, lifting, bending, 
speaking, breathing, learning, reading, concentrating, thinking, 
communicating and working.'' \7\ Further, the definition also includes 
``the operation of a major bodily function, including but not limited 
to, functions of the immune system, normal cell growth, digestive, 
bowel, bladder, neurological, brain, respiratory, circulatory, 
endocrine, and reproductive functions.'' \8\ Though this definition 
might seem unduly broad to observers unfamiliar with disability law, it 
is only slightly broader than current law, under which sexual relations 
and sleeping, among many others, have been found to be major life 
activities.\9\
---------------------------------------------------------------------------
    \7\ H.R. 3195, 110th Cong. Sec. 4 (as passed by House, June 25, 
2008).
    \8\ Id.
    \9\ Scheerer v. Potter, 443 F.3d 916, 919 (Wis. 2006); Pack v. 
Kmart Corp., 166 F.3d 1300, 1304-05 (Okla. 1999).
---------------------------------------------------------------------------
    The greatest change in the ADAAA is that it would define 
``substantially limits'' to mean ``materially restricts'' for the 
purposes of the first prong of the definition of disability. Thus, any 
impairment that ``materially restricts'' a person from performing any 
major life activity, or impedes the operation of any major bodily 
function, would constitute a disability for the purposes of the law.
    Further, the ADAAA provides several ``rules of construction 
regarding the definition of disability'' that would further broaden its 
scope. These mandate that the word ``shall be construed broadly'' and 
specifically extend its meaning to encompass impairments that are 
``episodic or in remission,'' including those that are temporary.\10\ 
In addition, overturning the U.S. Supreme Court's decision in Sutton v. 
United Air Lines, Inc., 527 U.S. 471 (1999), the bill requires that 
``[t]he determination of whether an impairment substantially limits a 
major life activity shall be made without regard to the ameliorative 
effects of mitigating measures . . .,'' such as medication, hearing 
aids, or ``learned behavioral or adaptive neurological modifications,'' 
an apparent reference to an individual's ability to learn to work 
around an impairment. The legislation specifically exempts from the 
rule ``ordinary eyeglasses or contact lenses,'' which, unlike all other 
mitigating measures, may be considered when determining whether an 
individual is disabled.
---------------------------------------------------------------------------
    \10\ See H. Rep. No. 110-730 Part 1, at 14 (2008).
---------------------------------------------------------------------------
    Finally, the ADAAA strikes two legislative findings of the original 
ADA that the U.S. Supreme Court has relied upon to determine whether 
Congress intended to include certain impairments within the act's 
coverage. One finding declared the number of disabled Americans--and 
thus, presumably, the number intended to be covered by the act--to be 
43 million at the time of its enactment, and growing.\11\ The second 
provision, echoing much civil rights law and jurisprudence, declared 
individuals with disabilities to be ``a discrete and insular minority'' 
subject to discrimination, implying that those not historically subject 
to such discrimination are not ``disabled.'' \12\
---------------------------------------------------------------------------
    \11\ See, e.g., Sutton v. United Air Lines, Inc., 527 U.S. 471, 
484-88 (1999) (``Had Congress intended to include all persons with 
corrected physical limitations among those covered by the Act, it 
undoubtedly would have cited a much higher number of disabled persons 
in the findings.'').
    \12\ Id. at 494-95 (Ginsburg, J., concurring) (``In short, in no 
sensible way can one rank the large numbers of diverse individuals with 
corrected disabilities as a `discrete and insular minority.' '').
---------------------------------------------------------------------------
    The purpose of these changes, according to the language's drafters, 
is to overturn the U.S. Supreme Court's decisions in Sutton, Toyota 
Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), 
and related cases that served to limit the coverage of the ADA's 
protections.\13\ In Sutton, as mentioned above, the Court held that 
mitigating measures should be considered in determining whether an 
individual is disabled. In Williams, it held that ``substantially 
limits'' means ``prevents or severely restricts,'' requiring that, to 
qualify as disabled, ``an individual must have an impairment that 
prevents or severely restricts the individual from doing activities 
that are of central importance to most people's daily lives.'' \14\ The 
Court also held that, under this formulation, the impairment's impact 
must ``be permanent or long term.'' \15\ Without question, the ADAAA 
rejects these precedents.
---------------------------------------------------------------------------
    \13\ H. Rep. No. 110-730 Part 1, at 6 (2008).
    \14\ Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 
U.S. 184, 198 (2002).
    \15\ Id.
---------------------------------------------------------------------------
    Without, at this point, commenting on the merit of that intention, 
I find great reason to doubt that the ADAAA's proposed replacement for 
the current statutory understanding is consistent with Congress's and 
the ADA's expressed purpose to provide ``a clear and comprehensive 
national mandate for the elimination of discrimination'' and ``clear, 
strong, consistent, enforceable standards addressing discrimination.'' 
\16\ Rather, the ADAAA's definitional text, though undoubtedly sweated 
over by a great many lawyers and interested parties, fails to provide 
clear guidance to the courts, the Equal Employment Opportunity 
Commission (``EEOC''), which would be empowered to interpret the 
definition in regulation,\17\ or employers.
---------------------------------------------------------------------------
    \16\ H.R. 3195, 110th Cong. Sec. 2(b)(1) (as passed by House, June 
25, 2008) (emphasis added); Americans with Disabilities Act 
Sec. Sec. 1(b)(1), (2), 42 U.S.C. Sec. Sec. 12101(b)(1), (2).
    \17\ H.R. 3195, 110th Cong. Sec. 6 (as passed by House, June 25, 
2008). This provision overturned another holding of Sutton. Sutton, 527 
U.S. at 479 ( ``Most notably, no agency has been delegated authority to 
interpret the term `disability.' '').
---------------------------------------------------------------------------
    The original ADA's definition of disability, as the courts were 
quick to recognize, is no exemplar of clarity, but the act's structure 
and findings allow for clear and consistent determinations in the bulk 
of cases and provide guideposts for interpretation in closer cases.\18\ 
This, in turn, has allowed the accumulation of a large body of coherent 
case law interpreting the ADA's scope and coverage. The result is that 
those who have rights and obligation under the act--including 
individuals with impairments and most employers--can rely on this body 
of interpretation in conducting their affairs.
---------------------------------------------------------------------------
    \18\ See, e.g., Sutton, 527 U.S. at 482.
---------------------------------------------------------------------------
    Any attempt to overturn Sutton and Williams would necessarily upset 
this case law and parties' expectations under it, but the ADAAA's 
language is particularly pernicious in that it supplies a new and 
untested vague standard for determining disability and mandates broad 
construction of this standard, while compounding the uncertainty of 
these commands by excising the guideposts that the courts have long 
relied upon in interpreting the ADA.
    The use of the phrase ``materially restricts'' is puzzling in 
several ways. The foremost question, of course, concerns the continued 
vitality and relevance of the phrase ``substantially limits,'' which 
would remain in the statutory text even though a new definition--
``materially restricts''--is imposed upon it. The phrase cannot be a 
mere semantic vessel, for its presence surely has some meaning. It is a 
standard canon of interpretation that statutory text should not be read 
so as to render portions of it superfluous.\19\ This reserved meaning, 
in turn, necessarily affects the way that ``materially restricts,'' 
which would only partially supersede it, must be read.
---------------------------------------------------------------------------
    \19\ See, e.g., CBOCS West, Inc. v. Humphries, 128 S.Ct. 1951, 1964 
(2008) (Thomas, J., dissenting).
---------------------------------------------------------------------------
    As for ``materially restricts'' itself, recourse to the case law 
provides no guidance. The drafters of this provision apparently decided 
against adopting any standard that had seen significant use in the law 
or the literature. A search of all Federal case law since the enactment 
of the Rehabilitation Act of 1973 for this and related terms (e.g., 
``material restriction'') retrieves a total of two cases concerning 
disabilities, one a bankruptcy and the other a district court 
decision.\20\ Neither sheds much light on these terms save for that 
materiality, in both instances, is mentioned as relating to something 
other than its subject. For example, the bankrupt's carpal tunnel 
syndrome was a material restriction of her ability to work as an 
unskilled laborer.\21\ A search through the output of the State courts 
is similarly unhelpful. Two New Jersey courts have touched on the term 
(it is a paraphrase of a provision of the State's worker's compensation 
statute \22\), both construing materiality as concerning a claimant's 
ability to work--that is, to receive worker's compensation, a worker 
must suffer an impairment that ``lessen[s] to a material degree'' his 
or her working ability.\23\
---------------------------------------------------------------------------
    \20\ Hughes v. Richardson, 342 F.Supp. 320, 332 (W.D. MO 1971); In 
re Heath, 371 B.R. 806, 813 (Bkrtcy E.D. Mich. 2007).
    \21\ 371 B.R. 806 at 813.
    \22\ The relevant section: ``Disability permanent in quality and 
partial in character'' means a permanent impairment caused by a 
compensable accident or compensable occupational disease, based upon 
demonstrable objective medical evidence, which restricts the function 
of the body or of its members or organs; included in the criteria which 
shall be considered shall be whether there has been a lessening to a 
material degree of an employee's working ability. N.J. Stat. Ann. 
Sec. 34:15-36 (2008).
    \23\ Brunell v. Wildwood Crest Police Dept., 176 N.J. 225, 237 
(2003); Mercado v. Atlantic States Cast Iron Pipe Co., 2008 WL 723773, 
*3 (N.J.Super.A.D. 2008).
---------------------------------------------------------------------------
    Federal statutory law provides no prior use of ``materially 
restricts'' or any similar term, and the several appearances of these 
terms in the Code of Federal Regulations concern tax law and various 
types of contractual agreements.
    Lacking any prior use from which to draw meaning, a court might 
turn to the dictionary to ascertain the meaning of a term. Webster's 
Third New International Dictionary, that regularly used by the U.S. 
Supreme Court,\24\ informs that to be ``material'' is ``being of real 
importance or great consequence.'' For this usage, it offers four 
synonyms: substantial, essential, relevant, and pertinent. The first 
three explain too little: The ADAAA, after all, dilutes ``substantial'' 
and rejects ``essential'' as too narrow, for it would be akin to 
Sutton's ``prevents.'' The other two, however, explain too much: Any 
restriction at all of a major life activity would be relevant or 
pertinent to that activity. Decisions in a great many cases could hinge 
on which one of these four words a court chose to apply. In this way, 
the ADAAA's definition of ``disability'' utterly fails to cabin 
judicial discretion, an avowed aim of its drafters.
---------------------------------------------------------------------------
    \24\ E.g., Williams, 534 U.S. at 196.
---------------------------------------------------------------------------
    The legislative history--to which some judges resort when statutory 
language, as here, is vague--provides no clear answer either. It 
counsels that ``materially restricts'' is ``intended to be a less 
stringent standard to meet'' than that propounded in Williams.\25\ 
Elsewhere, the drafters advise that ```materially restricted' is meant 
to be less than a severe or significant limitation and more than a 
moderate limitation, as opposed to a minor limitation.'' \26\ The 
drafters then refer to the ADAAA's rule of construction that ``To 
achieve the remedial purposes of this Act, the definition of 
`disability'. . . shall be construed broadly.'' \27\ Yet, as discussed 
above, the relevant guideposts in this inquiry--the approximate 
proportion of the population Congress intended to be covered by the act 
and the nature of the discrimination suffered by that population--would 
be excised from the law. Without these touchstones to reality, 
regulators and the courts will find it difficult or impossible to 
conceive any coherent limiting principle that works to affect only 
``the elimination of discrimination'' against the disabled without 
interfering in other relationships.
---------------------------------------------------------------------------
    \25\ H. Rep. No. 110-730 Part 1, at 6 (2008).
    \26\ Id. at 10.
    \27\ Id.; H.R. 3195, 110th Cong. Sec. 3 (as passed by House, June 
25, 2008).
---------------------------------------------------------------------------
    Some supporters of ADAAA recognized the opaqueness of the bill's 
text and, fearful that courts might actually attempt to interpret it 
verbatim and reach an overly broad, though not precluded, result, 
inserted this in the legislative record:

          ``Persons with minor, trivial impairments such as a simple 
        infected finger are not impaired in a major life activity,'' 
        and consequently those who had such minor and trivial 
        impairments would not be covered under the [original] ADA.
          We believe that understanding remains consistent with the 
        statutory language and is entirely appropriate, and we expect 
        the courts to agree with and apply that interpretation. If that 
        interpretation were not to hold but were to be broadened 
        improperly by the judiciary, an employer would be under a 
        Federal obligation to accommodate people with stomach aches, a 
        common cold, mild seasonal allergies, or even a hangnail. 
        Consequently, we want to make clear that we believe that the 
        drafters and supporters of this legislation, including 
        ourselves, intend to exclude minor and trivial impairments from 
        coverage under the ADA, as they have always been excluded.\28\
---------------------------------------------------------------------------
    \28\ H. Rep. No. 110-730 Part 2, at 30 (2008).

    It is a small relief that several drafters of this legislation 
``believe'' that it would not require an employer to accommodate an 
individual with a hangnail, but nothing in the actual legislative text, 
however, compels any court to reach that result. Indeed, the text seems 
to require otherwise; if, as discussed above, minor visual impairments 
that can be mitigated with standard eyeglasses are not disabilities, 
then presumably similarly minor impairments that cannot be so mitigated 
would be disabilities--the legal doctrine is known as expressio unius 
est exclusio alterius, or ``the expression of one thing is the 
exclusion of another.'' The inevitable result: arbitrary, inconsistent 
case law and potentially debilitating legal uncertainty for many 
businesses.
    To this contention, the legislation's supporters respond that their 
aim is actually the quite modest shift of focus from disability to 
discrimination:

          Too often cases have turned solely on the question of whether 
        the plaintiff is an individual with a disability; too rarely 
        have courts considered the merits of the discrimination claim, 
        such as whether adverse decisions were impermissibly made by 
        the employer on the basis of disability, reasonable 
        accommodations were denied inappropriately, or qualification 
        standards were unlawfully discriminatory.\29\
---------------------------------------------------------------------------
    \29\ H. Rep. No. 110-730 Part 1, at 8 (2008).

    Within this contention, though, is its own rebuttal. A finding of 
disability, under current law a prerequisite to an ADA complaint, is 
additionally a prerequisite, in the logical sense, to addressing a 
claim of discrimination. An example: Polly has, in recent months, 
increasingly missed work without providing notice to her employer, 
Donald. She informs Donald that she suffers from major depression and 
requests two accommodations: a job coach and greater flexibility in 
taking days off without providing advance notice. Even if these 
accommodations are reasonable, Donald's refusal to provide them may not 
constitute discrimination if Polly is not disabled. Under the empty 
standard proposed in the ADAAA, but certainly not under current law, 
Polly's occasional fatigue and feelings of self-doubt could well be 
sufficient to render her impairment a disability and thus Donald's 
refusal to accommodate discrimination. Resort to the question of 
Polly's qualifications or the ``business necessity'' of showing up does 
not avoid this inquiry.\30\ Logically, it is impossible to reach the 
``merits'' of a discrimination claim without determining the predicate 
for that discrimination: whether the individual is, or has been 
regarded as, a member of the protected class. Thus, any change to the 
definition of disability made to encourage courts to hear the merits of 
a disability claim will necessarily alter the substance of that claim. 
In this way, ADAAA may effect a far broader change than even its 
supporters claim or realize.
---------------------------------------------------------------------------
    \30\ See 42 U.S.C. Sec. Sec. 12112(b)(4), (6).
---------------------------------------------------------------------------
    The impact of this change on employers could be severe. It is 
evident that, under the ADAAA, accommodation costs would rise, as more 
workers become entitled to more accommodations. That, after all, is the 
point of the legislation. But there are still more expenses, many of 
which would be due to the current legislation's lack of clarity. At the 
same time that a much larger portion of the workforce would fall under 
the ADA's protections, the law would also become far more uncertain, 
driving up compliance costs and legal expenses.
    Among employers, small businesses are likely to suffer 
disproportionately, as is usually the case when there is regulatory 
complexity or legal uncertainty. Larger firms have the structure in 
place--general counsel offices, compliance officers, and disability 
consultants--to determine their legal obligations and perform them in a 
relatively efficient manner. For a small business, however, the costs 
of compliance on a per-employee basis are far higher. To accommodate a 
single disabled employee, a small employer may need to bring in a 
number of outside experts, including a labor lawyer, an ADA consultant, 
and even an ergonomics expert or engineer. These expenses have a 
serious impact on the bottom line. By requiring the expertise of 
outside professionals, such laws put small businesses at a competitive 
disadvantage to larger firms, which can spread increased costs across 
their entire workforce.
    For all employers, legal uncertainty, especially concerning the 
risk of liability for discharging an employee, undermines the doctrine 
of at-will employment. Under ADAAA, most employees could claim they 
have an impairment, such as asthma or chronic stress, and sue if they 
were either laid off or not hired in the first place, contending 
discrimination. Even when the employment decision had nothing to do 
with the claimed impairment, the employer would still face expensive 
litigation and be far less likely than today to prevail on a motion for 
summary judgment relatively early in the litigation. The result: 
Employers would be less willing to hire new employees and job growth 
would be reduced. This has been the consistent pattern in countries 
that more greatly restrict at-will employment by providing greater job 
protections to employees.\31\
---------------------------------------------------------------------------
    \31\ Hugo Hopenhayn & Richard Rogerson, Job Turnover and Policy 
Evaluation: A General Equilibrium Analysis, 101 J. Pol. Econ. 915, 938 
(1993); Adriana D. Kugler & Gilles Saint-Paul, Inst. for the Stud. of 
Labor, Hiring and Firing Costs, Adverse Selection and Long-term 
Unemployment, IZA Discussion Paper 134 (2000).
---------------------------------------------------------------------------
    The ADAAA would also increase employee abuses under the ADA. Due to 
legal uncertainty, employers would likely be even more loathe than they 
are today to contest borderline claims of disability in the courts, for 
fear of incurring large legal expenses and potentially large 
liabilities. This is another consequence of combining vague legal rules 
that make it difficult to evaluate the merit of litigation with relaxed 
limitations on coverage.
    This concern is not just hypothetical; there is strong evidence 
that some workers have taken advantage of similar protections recently 
enacted by Congress. Many workers, for example, have abused the Family 
and Medical Leave Act (``FMLA''), which requires covered firms to 
provide their employees with up to 12 weeks of unpaid leave per year, 
with their job guaranteed during that time, that may be used when an 
employee suffers a serious health condition or is caring for a family 
member who does. Though most workers use the leave allowance only when 
necessary, many use it simply to take time off at will, such as to 
avoid rush hour traffic and enjoy more frequent 3- and 4-day 
weekends.\32\
---------------------------------------------------------------------------
    \32\ See generally, James Sherk, The Heritage Foundation, Use And 
Abuse Of The Family And Medical Leave Act: What Workers And Employers 
Say (2007), available at http://www.heritage.org/Research/Labor/
sr16.cfm.
---------------------------------------------------------------------------
    As my Heritage Foundation colleague James Sherk has chronicled in 
great detail, it is coworkers who often bear the greatest burden of 
FMLA abuses. Conscientious employees suffer each time they have to 
cover the work or work unscheduled overtime when a coworker abuses 
FMLA. In many instances, employees also suffer reduced pay and bonuses 
due to FMLA abuse.\33\
---------------------------------------------------------------------------
    \33\ Id.
---------------------------------------------------------------------------
    Slower job growth leading to reduced potential employment would be 
most businesses' response to any change in the legal environment that 
increases the cost of labor--a troubling result at a time when economic 
growth has slowed and unemployment is already inching upwards. If 
Congress nonetheless feels compelled to expand the ADA's protections to 
an ever-larger body of workers, it should do so in a way that imposes 
as little collateral damage as possible by putting forward clear tests 
and definitions and reducing risk and uncertainty for both employers 
and their workers.
    It is an unfortunate and, to date, underappreciated risk that the 
ADAAA's radical expansion of ADA coverage may injure those who, subject 
to severe disabilities, who are undisputedly covered under the current 
law. A common accommodation for disabled workers, for example, is 
reassignment to a position that is less physically taxing, and no 
doubt, in certain industries, many employees, both disabled and not, 
wish to hold these positions. If all available slots are held by mildly 
disabled employees or employees abusing the ADAAA's protections, truly 
disabled individuals will have fewer alternatives available and, if 
unable to perform their current jobs, may be laid off, because creating 
a new position is not required by the ADA. Overall, it is likely that 
fewer resources would be available under the ADAAA to accommodate 
severely disabled individuals.
    It should also be noted that the ADA has not been an unqualified 
success for individuals with disabilities in the workforce. Though no 
single explanatory theory is dominant, the evidence is strong that the 
disabled earn less and work far less than they did prior to enactment 
of the ADA, a period during which those who do not identify as disabled 
increased their workforce participation and earnings.\34\ A number of 
economists, including MIT's Daron Acemoglu, blame the ADA for the 
reduced opportunities of the disabled.\35\ Other critics contend that 
the ADA has done little more than produce occasional windfalls for 
plaintiffs and attorneys.\36\ According to Acemoglu, as of 1997, 
employers faced 40,000 lawsuits per year under the ADA and spent, on 
average, $167,000 to defend themselves.\37\ Labor markets are complex, 
and it is difficult to intervene in them to produce specific results 
without encountering unexpected consequences. The risk that a broader 
ADA will redound to the detriment of those it is meant to protect 
cannot, based on the data, be overlooked or discounted.
---------------------------------------------------------------------------
    \34\ Richard Burkhauser & David Stapleton, Introduction, in The 
Decline In Employment Of People With Disabilities 3-4 (2003).
    \35\  Id. at 16-17; Daron Acemoglu & Joshua D. Angrist, 
Consequences of Employment Protection? The Case of the Americans with 
Disabilities Act, 109 J. Pol. Econ. 915, 957 (2001).
    \36\ Ruth Colker, The Disability Pendulum: The First Decade Of The 
Americans With Disabilities Act 71-72 (2005).
    \37\ Acemoglue & Angrist, supra note 35, at 920.
---------------------------------------------------------------------------
    Many of the problems that I have identified with the approach of 
this legislation can be corrected through more diligent re-drafting, 
though those economic effects stemming from the bill's central 
purpose--expanding the ADA's reach--may require changing the substance 
of the legislation in significant ways. To both those ends--fixing and 
reworking the current legislation--I offer the following suggestions:

    1. The term ``materially restricts'' is not readily susceptible to 
any apparent meaning and should be removed from the legislation. Rather 
than propound a vague definition and then demand that courts construe 
it broadly, Congress should put forward a clear definition (or retain 
the current one) and rely on the courts to employs the standard canons 
of construction to give statutory text meaning. If it is Congress's aim 
to expand ADA coverage so that it includes the majority of Americans or 
more, it should do so explicitly, and accept the consequences, rather 
than foisting the task on the courts.
    2. The current three-prong definition of ``disability'' is 
valuable, for all the case law and interpretive history built upon it, 
and significantly changing or modifying it will destroy this value. 
Congress should be very wary of enacting sudden, dramatic changes that 
would throw the law into turmoil. The ADAAA, as it currently stands, 
would be such a change.
    3. The legislative findings that the ADAAA would strike from the 
ADA have proven to be an essential tool for courts attempting to apply 
the ADA's principles and often vague language to real-world disputes. 
If Congress believes that these provisions mis-state its intentions, it 
should fix them rather than strike them. The ADA's findings should 
continue to state Congress's best estimate of how many Americans it 
intends to have covered by the act.
    4. Though doing so will have adverse economic consequences, 
reversing Sutton can be achieved in the context of a much more modest 
bill that does not otherwise modify the ADA's three-prong definition of 
``disability.''
    5. Granting the EEOC power to promulgate regulations under the non-
article sections of the ADA will advance legal certainty and improve 
compliance. This step alone may be sufficient to accomplish much of 
what drafters of the ADAAA hope that it will achieve.
    6. The subsection on mitigating measures, as drafted, excludes 
ordinary eyeglasses and contact lenses, recognizing that mild visual 
impairments, such as are suffered by millions of Americans, are not 
disabilities. Congress should extend this reasoning and, at the least, 
exclude from the mitigating measures rule other prevalent ameliorative 
devices, such as certain types of hearing aids and joint braces.

    The ADA Amendments Act, as currently drafted, is so vague that it 
is impossible to say with any degree of certainty that courts would 
uniformly decline to find such minor impairments as hangnails, tennis 
elbows, and infected cuts to be disabilities. The consequences of this 
confusion in the law would be significant, affecting millions of 
businesses and their employees, as well as the health of the national 
economy and American businesses' international competitiveness. If 
Congress's intention is to radically expand the coverage of the ADA, it 
should be clear in its mandates and do so with full transparency, 
accepting responsibility for its policy choices.
    The Heritage Foundation is a public policy, research, and 
educational organization operating under section 501(C)(3). It is 
privately supported, and receives no funds from any government at any 
level, nor does it perform any government or other contract work.
    The Heritage Foundation is the most broadly supported think tank in 
the United States. During 2006, it had more than 283,000 individual, 
foundation, and corporate supporters representing every State in the 
United States. Its 2006 income came from the following sources:

    Individuals: 64 percent; Foundations: 19 percent; Corporations: 3 
percent; Investment Income: 14 percent; and Publication Sales and 
Other: 0 percent.

    The top five corporate givers provided The Heritage Foundation with 
1.3 percent of its 2006 income. The Heritage Foundation's books are 
audited annually by the national accounting firm of Deloitte & Touche. 
A list of major donors is available from The Heritage Foundation upon 
request.
    Members of The Heritage Foundation staff testify as individuals 
discussing their own independent research. The views expressed are 
their own, and do not reflect an institutional position for The 
Heritage Foundation or its board of trustees.

    Senator Harkin. Thank you very much, Mr. Grossman. Thank 
you all very much for keeping those comments short and to the 
point.
    I was jotting some notes down this morning before we 
started the hearing. One of the things we want to do here is 
get a better understanding of what materially restricts means.
    Second, we wanted to provide an opportunity for education 
groups to be heard and have input into this and we are hearing 
that right now and allow members of the committee to express 
their concerns. As mentioned, we took a big step forward with 
the House bill, 402 votes. I want to keep that momentum going. 
We may have to change some things. We will write a Senate bill 
sometime this month and hopefully get it done this year.
    First of all, let's go to the question of education. What 
is it that seems to be problematic? Now we heard from Ms. Simon 
and then Ms. Gamm took an opposite position and so did Mr. 
Hartle. One with sort of higher education, as I understand it 
and one with K through 12.
    What is it in this bill that again--let's flesh this out--
causes you the most concern?
    As I read it, as I understand it, I've talked to the staff 
and I worked with this for 20-some years now, that there is 
nothing in here that changes what was an issue in 504 anyway, 
that we lived with since 1973 and that you lived with since 
1973.
    If nothing has changed I'm trying to get a handle on what 
is problematic here. Because we don't change the fundamentally 
altered--I believe Ms. Simon mentioned that. That there is 
nothing in here that changes that language. That if something 
fundamentally alters a test, for example, then it does not 
apply. So, I need to get a handle on what we need to be 
concerned about in terms of education. It seems like you are 
already covering these kids anyway.
    Ms. Gamm. I'm not concerned about the fundamentally altered 
provision--that's not my concern. My concern is the new terms 
that is being introduced around material restriction. And some 
of the comments that were specifically included in the House 
congressional report, which quite frankly took my breath away. 
You would not have read that in the act but reading that full 
report gave me a much different perspective in terms of at 
least what the House intended.
    And it's in two areas. One is by implication resulting from 
the first area and that is a new application that would, I 
believe, contradict what has been in terms of the ADA and its 
application with section 504.
    For example, in the original 1990 House committee report 
there was a specific statement in there that said a disability 
would apply when a major life activity is restricted in the 
conditions, manner, or duration under which they can be 
performed in comparison to most people. That directly 
contradicts statements in the House report that just came out 
that would say that would not be the standard and individuals 
who actually are performing at a very high level of academic 
success would in fact be covered and entitled to accommodation. 
That opens up a huge range of individuals who under IDEA law--
there has been three appellate court decisions that do not have 
that standard. They say if a student is performing well in 
school, that would be something to be taken into consideration 
as well as the very few number--I can count them on two hands 
the number of cases that I was able to find recorded either by 
a hearing officer or office of civil rights or a court decision 
that went the same way. That's one huge change.
    The second is while we are talking about high performing 
kids--what about low performing kids? There is a very 
interesting chart in rethinking learning disabilities that I 
submitted to you on page 5 where researchers are now looking 
at, this is actually one of the very important changes in the 
reauthorization by the IDEA in regulations that followed around 
what is a learning disability. And as we know in the area of 
special education, that's almost 50 percent of all kids have 
mushroomed through the years in the area of learning 
disabilities and I think this chart is incredible in that it 
shows what the research has shown, that it's very difficult to 
determine whether a child's difficulty in reading is due to 
what might be a statutory defined learning disability as 
opposed to a child that begins school with insufficient skills 
and does not have the phonemic awareness that you need, the 
building blocks of reading, does not get instruction to change 
that and as a result has difficulty reading in life.
    Here we see in this chart, there are two lines of kids with 
learning disabilities under the statute and the same under-
achieving line, virtually the same, of kids who don't meet that 
burden under the IDEA, but nevertheless are not readers.
    So my concern is for the under-achieving kids--we don't 
know if the changes in definition will actually open up the 
door and have a legally protected right and legal procedures 
under this bill.
    Senator Harkin. We have two situations here. Under IDEA, we 
don't have to worry about that. That is taken care of. IDEA is 
taken care of, with an IEP. We know what that is. It seems to 
me that the problem we have here is 504. Is that right?
    Ms. Gamm. However, under the regulations, the original 
regulations with the U.S. Department of Education they actually 
talk about the synergy between the two and that under 504 you 
look at IDEA and there is a relationship between the two, 
especially in the area of learning disabilities. My concern is 
whether this change in definition. I don't know. But it could 
have an impact and could broaden the definition of who has a 
reading disability.
    Senator Harkin. Some of this may be over my head. Could 
somebody help me out here?
    Ms. Simon. Senator, I would be happy to address that.
    Senator Harkin. If you want to speak to the topic, turn 
your card on end or signal me and I'll call on you.
    Professor Bagenstos is first, I think.
    Mr. Bagenstos. A couple of points about that. One is that 
although the regulations under 504 do reference the IDEA, there 
is case law and these cases get decided on a weekly or monthly 
basis that say, ``Well, this is a student who is not eligible 
under IDEA, but may have a disability under section 504 and 
therefore doesn't get an IEP and all the same IDEA 
requirements.'' The statutes have different requirements in 
them and there is a synergy between them. It makes sense in a 
lot of cases there is an overlap, but by extending the ADA or 
section 504 to these children it's not going to incorporate all 
of the IDEA obligations, child find obligations to ADA is quite 
clear under the case law that it is an obligation to 
accommodate a disability that's known or at least that there is 
some particular reason to believe that their covered and should 
have been known. That is you don't have to go out and see 
whether or not this person has a disability and these other 
obligations under IDEA. I think we can. I think you are right, 
Senator Harkin, we can deal with them as separate, and deal 
with the terms of this statute as the terms of this statute.
    Senator Harkin. It seems to me that IDEA is so clear cut 
and so separate and apart that we don't have a problem with 
that.
    Ms. Gamm. My concern is that that's true, but that this 
change would actually broaden an addition under 504, a whole 
new group of children that we are serving but not currently 
under the strict procedural requirements of section 504.
    Senator Harkin. OK.
    Ms. Gamm. That was my concern.
    Senator Harkin. Anybody else want to comment on this at 
all?
    Ms. Simon.
    Ms. Simon. Yes, thank you, Senator. I think the problem is 
that we have an exhaustion requirement under IDEA, an 
exhaustion of the procedural remedies. So for a child who might 
be arguably covered by both statutes, when a parent has a 
dispute with the school system they have to exhaust the 
administrative remedies under IDEA anyway. The issue really is 
that IDEA is taken care of. To the extent that this would 
expand the number of students who might be protected, I think 
it is very important to recognize that protection is not the 
same thing as services. There are many ways in which a 
student's rights might not be fulfilled, but that may not mean 
that there is any need for procedural requirements or for due 
process or for expensive services.
    I also think that the issue about learning disability 
(L.D.) gets raised all the time in terms of low performance. 
There are two reasons why this may happen. One is a common 
misperception that learning disabilities are the same thing as 
low intellectual ability. They are not. So, the fact that 
someone who does well because of accommodation or class size 
doesn't mean they don't have a learning disability.
    A learning disability is a processing disorder, it's not an 
academic disorder. It may be demonstrated in academic 
difficulties but it need not be demonstrated in academic 
difficulties. The problem is when you try to make one thing 
something else, you then lose the essence of what it is. It is 
very important that students with learning disabilities get the 
right kind of instruction. And to the extent that the chart 
that was shown before indicates that they fall off along with 
students who have low achievement may, in fact, be an issue 
with regard to instructional responses as opposed to whether or 
not those students have a disability and would be protected by 
the law.
    I think that the way that we can be assured that we are 
protecting students who need protection is to have a thorough 
comprehensive clinical assessment of how that child learns. 
That will separate out those students who have a processing 
disorder or learning disability from those who have an academic 
disorder. Thank you.
    Senator Harkin. Professor Feldblum.
    Ms. Feldblum. If I can add some clarity to this 
conversation. Sue says that she is concerned that there is 
going to be a whole new group of students now under section 
504--that schools she has been consulting with and advising, 
who want to do right by the kids, are suddenly going to have a 
whole new group. And I'm sitting here telling you we don't 
think that is going to be the case.
    In fact, as we went through this language we thought about 
all entities under the law, not just employers. So how can both 
of those things be true? This is how I see it. The schools have 
been dealing with the words ``substantially limits a major life 
activity,'' but they have not been taking the U.S. Supreme 
Court cases that allow them to say, that kid with epilepsy, 
that kid with diabetes, that kid with bad asthma, you don't 
have to do anything for them because with the medication, they 
are not disabled.
    Schools haven't been doing that. They have been doing the 
accommodations for kids with epilepsy, diabetes, and severe 
asthma. They have been doing that. The only time, and I've read 
all the cases, where schools have come and said, ``this kid 
with asthma does not have a disability'' because with the 
medication the kid doesn't have a disability, is when they have 
done amazing accommodations for the kid already and the parents 
are saying, ``no, no, I still want more.'' Where the court 
could have decided, ``yes, the kid has a disability but you 
have done everything you need to do school.'' Instead, in a few 
cases the courts have done what they have done with employment 
and said ``that kid doesn't have a disability.'' What is 
happening is that, there was a change in the definition that 
was done by the U.S. Supreme Court by saying, ``You look at the 
medication, take that into account.'' Because those cases arose 
in the employment context, they were mostly used in the 
employment context. In the school context, it's sort of like 
they had that opportunity, they didn't really pick it up. It's 
not that they didn't use it at all. Like I said, in some 
litigation they did use it. But in their practice they didn't 
pick it up. If this Senate would pass the original ADA 
Restoration Act as introduced then I understand the concern, 
because it really was a different standard.
    But the ADA Amendments Act, what the employer community 
asked for and got, was essentially the same definition 
``substantially limits a major life activity,'' but by using 
the term materially restricts, simply saying to the courts, we 
don't want the over-the-top strict standard that you applied 
before.
    So, I understand the fear because it's a new piece of 
language, but it is not a new piece of language intended to 
expand the students that they serve right now. One thing that I 
heard here that is slightly different from Sue today is the 
concern that somehow we are trying to change the rule that you 
decide whether someone's impairment substantially limits an 
activity by looking at the manner, condition, or duration of 
that impairment. That is not the intention of those of us who 
have been working on this bill to change. In fact, that was 
discussed clearly. The employer community wanted to make sure 
that standard still applied. As you heard from Jo Anne Simon, 
someone with a learning disability is different in the manner 
in which they learn, OK? And that is not intended to be 
changed.
    I do understand that there might have been some concern 
with some report language, and that is something that can be 
discussed in terms of doing it differently but there was not an 
intention of changing that comparitor standard.
    Senator Harkin. This brings to light one of the reasons we 
wanted to have people from education here because we had heard 
obviously from the education community that there were problems 
here and I wanted to get this aired. I'm not sure I understand 
all the implications here, but just listening to this, Mr. 
Hartle--if you have anything to add to that?
    Mr. Hartle. Our concern is a little different, Senator. We 
believe that the ADA Restoration Act will increase the number 
of people who are eligible for services and we will provide 
those.
    But we are worried that the provision of current law that 
says accommodations do not have to be provided if they alter 
the essential elements of the academic program could be 
impacted by the legislation. Indeed the purpose of this bill is 
largely to overturn existing case law that people believe has 
narrowed the reach of ADA. And the House report specifically 
rejects the findings of several higher education cases, and in 
light of this we think it's important to make clear that 
current case law regarding the essential elements of the 
academic program be reaffirmed in the statute.
    We think it's important that current case law provisions 
regarding the ability of institutions to make decisions based 
on the essential elements of the academic program be reaffirmed 
in the statute.
    Senator Enzi. I want to note that as we move through this 
process, we may have additional questions. If we do have 
additional questions, we will get them to you and hope you can 
provide us with supplemental responses. There are a lot of 
people who aren't here, and we will encourage them to read the 
information you provide, some of which is very technical and 
may require additional clarification. So I would appreciate it 
if you would respond to those questions as quickly as possible.
    Senator Harkin. I am trying to figure something out, Mr. 
Hartle. Would you repeat the last statement that you made for 
me again? You said you did not want to see essential functions.
    Mr. Hartle. The essential elements of the academic program.
    Senator Harkin. The essential elements of the academic 
program altered?
    Mr. Hartle. If someone wanted to get a Ph.D. in comparative 
literature, you have to be able to read and speak foreign 
languages, to get a Ph.D. in comparative literature. Current 
case law would reaffirm that, we would not have to make an 
accommodation in that particular case. What we are concerned 
about is that the statute's language you are considering may 
weaken the protection we currently enjoy in current case law 
that says we don't have to grant accommodation if it changes 
the fundamental nature of the program.
    Senator Harkin. And that was not changed in the bill?
    Mr. Hartle. It wasn't changed in the bill but we are afraid 
the courts will look at this legislation which substantially 
changes ADA.
    Senator Harkin. We did not change that in the bill, and I 
don't know about your concern with the courts changing it, but 
I will say this from my standpoint and this goes way back. A 
lot of times programs are set up with the best of intentions. 
Education programs are set up with the best of intentions and 
these harken back to old ways of doing things. Sometimes 
especially in higher education and when you look at the modern 
world and what people are doing these days with the Internet 
and that type of communication skills, that perhaps some of the 
things that were laid down by higher education communities in 
the past in order to get a certain degree or a certain diploma 
of higher education, whatever those requirements were, don't 
apply in the modern age, and some of them may need to be 
changed. And if they don't do it internally, maybe the courts 
should look at that and say, ``why is it necessary for someone 
who wants to get a Ph.D. in comparative literature to be able 
to speak a foreign language if, for example, they can't 
speak?'' Say they have cerebral palsy and they don't have a 
language skill but they have every other skill. They can 
communicate perfectly well over the Internet. But they may not 
be able to communicate verbally. What is wrong with that, I 
ask?
    Mr. Hartle. Senator, comparative literature is the study of 
literature written in foreign languages, and to get a Ph.D. in 
comparative literature, it's a basic requirement that you have 
to be able to read a foreign language.
    Senator Harkin. Read is different. You said speak.
    Mr. Hartle. Reading is different. One of the most frequent 
requests we get for accommodation are from people who want a 
foreign language requirement waived. So the issue here is 
simply to say, we want to protect the academic integrity and 
standards of institutional programs so that the degrees 
continue to mean what they have meant in the past.
    Senator Harkin. I am challenging you a little bit on this. 
I don't mind institutional integrity if the institutional 
integrity is not based on antiquated conceptions and dictums 
handed down from centuries ago that have no real relevance in 
today's world. I don't mean to single out higher education, 
there are a lot of those in this institution, too, by the way, 
in Congress. So those fundamental things have to be challenged 
once in a while. The idea of reading rather than speaking seems 
to be an accommodation to me. That's an accommodation. It's not 
fundamentally altering anything. That's an accommodation. Isn't 
that what we are about, providing those kinds of 
accommodations? I don't see that as a big concern.
    We don't change that fundamentally altered, we leave that 
alone. But, you may be right--courts may in the future look at 
a case and say, ``Why is this a requirement? Why do you have 
it? What is the essence of this requirement that you may have 
for a degree or something else? Is it pertinent to today's 
life, the way we live?''
    The court may say, ``Under the accommodations exception 
here, you need to provide an accommodation for this 
individual.'' I personally don't find anything wrong with that, 
as a matter of fact. I think that's the evolution of society.
    As we progress as a society and we see those kinds of 
changes made, some are done legislatively, some have been 
through common law through our court systems. But we left it 
there, ``fundamentally altered.'' But I'm not saying that 
sometime in the future the court might not look at something 
like that and decide to reach a different conclusion. I can't 
protect you against that. That's common law.
    Mr. Hartle. It would protect us if there were a provision 
in the statute that ensured that the fundamentally altered 
provision remains.
    Senator Harkin. The only way we can protect that is to say 
that in the institution of higher learning, or any other 
institution, whatever they set down as their requirements, a 
court can't challenge that, a person can't challenge that. We 
can't do that.
    Mr. Hartle. They can be challenged, Senator. The 
institutions would have to demonstrate that it is a fundamental 
element of the academic program. It doesn't give the 
institutions carte blanch to act badly and there is nothing in 
the record over the last 18 years to suggest that colleges and 
universities wouldn't try to be as accommodating as possible.
    Senator Harkin. I think that is right. And I would think 
that there would be a presumption on the part of the individual 
that an accommodation could be made, it would have to be up to 
the university to show that whatever rules or regulations that 
they are abiding by overcomes the civil rights protections of 
ADA or 504. Somehow that overcomes the broad civil rights 
protection and I think that's a pretty high hurdle to overcome. 
You might be able to show that. But I would think you have to 
overcome the civil rights protection that an individual would 
have who has a disability.
    To close out on education--I want to move to materially 
restricts--would you on the education side, are you telling us 
that we need a better definition of ``materially restricts?'' 
Is that what you are saying?
    Ms. Gamm. Yes, that and also in terms of looking at 
mitigating measures in terms of elementary and secondary. For 
example, as was pointed out, students would require a thorough 
clinical assessment.
    The question becomes now, are there are many, many more 
students that are required to get that thorough clinical 
assessment?
    Senator Harkin. I think that is very legitimate.
    Ms. Gamm. Right now, for example, I would agree with you 
100 percent. The districts are doing lots of plans for kids 
with different health impairments. The issues are most of those 
plans--as I have talked to my colleagues--are very informal and 
probably would not reach the threshold of an OCR review in 
terms of the 504 regulation. Because they don't view them as 
necessarily disabled under 504, they view them as kids that 
need some assistance.
    For example, I was talking to Chicago and they were 
thinking about doing more informal plans as opposed to formal 
504 procedures. Which, trust me, I monitored for 13 years in 
school districts. They expect to see the I's dotted and the T's 
crossed.
    Senator Harkin. What does ``materially restricts'' mean?
    Ms. Gamm. I think we don't know.
    [Laughter.]
    Senator Harkin. Mr. Grossman. You had your hand up.
    Mr. Grossman. Yes, Senator. In my written testimony I've 
gone through and applied the standard statutory approaches to 
determining meaning of statutory language. I think the language 
is challenging in the sense that this language is unprecedented 
in the disability context. In other cases in which courts have 
construed the term materiality, they have always relied upon 
generally common law or other statutory history that builds up 
over many, many cases that gives a gloss on the word and that 
shows how it is limited and how it is to be applied. In other 
words, it's the history of the case law that allows legislators 
to use the word in such a way that it cabins judicial 
discretion. In this case however that body of case law does not 
exist. The other methods of statutory interpretation that the 
courts regularly apply are similarly unavailing of a concrete 
definition.
    Indeed, references to other portions of the statute which 
the courts have made before in construing the ADA would be 
altered by the Amendments Act. It's sort of removing another 
touchstone that the courts might apply to determine the precise 
meaning of that language. Without there being any sort of 
limiting principle inherent in the language itself there will 
be confusion and I think that's very evident in the two House 
reports on the bill. The members who contributed to the House 
reports have a different understanding of what this actually 
means, what it would require and what it would not require. 
That confusion reasonably reflects the actual text of the 
statute. I think what you could expect to see is that courts 
would be free to stamp their own policy preferences upon the 
law to prevent what they see as bad results. In some cases that 
may align with Congress' intent but in other cases it may not. 
I don't think there is anything in the statute that would 
necessarily prevent courts from interpreting and exercising 
their discretion under the statute in that way.
    Senator Harkin. Professor Bagenstos, I read your statement 
last night, and you had something in there about that. What say 
you on this?
    Mr. Bagenstos. As an introductory point, the reason why we 
are here, is because courts have stamped policy preferences on 
the original ADA's definition of disability. This is trying to 
stop it. If you look at the term ``material,'' it's not a term 
that just appears in one place in the law. It appears all over 
the law.
    There is material omission, material misrepresentation, 
material breach, material adverse change, all over the law. And 
so that it's unprecedented in the disability discrimination law 
context, I don't think it's that significant from the 
perspective of courts developing a body of case law that makes 
consistent and clear understanding of this term.
    What I would say about this is one of the things that was 
true, going back to the original ADA, is the notion that 
disability is not--we have a clear line, you're in a group, 
you're defined as disabled for everything in your life. It's a 
very individual characteristic going back to the very 
beginnings of the work that you did, Senator Harkin, on the 
ADA. Disability is not something where we can just say you have 
X condition, therefore, you are disabled. It requires an 
analysis of particular facts. The materiality standard is a 
standard that is used in the law to address particular facts in 
widely varying fact situations to make sense of the law. I 
think that because it's so common, because it's so well 
understood by judges, it's something that will develop a case 
law that will be very consistent.
    As I say in my testimony, if you are concerned about how do 
we elaborate this, can we elaborate this more? There are 
definitely ways that you could elaborate this more. You could 
elaborate this more by taking what I understood both Sue Gamm 
and Chai Feldblum to agree on, which is the notion that we are 
talking about condition, manner, or duration here when you are 
talking about materially restricts.
    You could elaborate that by saying something like 
materially restricts refers to a restriction on the condition, 
manner, or duration of an individual's ability to engage in a 
major life activity as compared to that of either the average 
person or most people which are the different terms used in the 
different regulations under the ADA. EEOC v. DOJ.
    You could do that, and that might well add a little bit 
more confidence in people that there will be consistency and 
clarity here. But the term itself is one that is well known in 
the courts. When there have been attempts to create per se 
rules, saying this isn't material or this is material. The 
courts have said, we don't need that, because we know what 
material means.
    Senator Harkin. Ms. Simon.
    Ms. Simon. Thank you, Senator. I would just like to add a 
brief comment to the professor's discussion here. And that is 
that one of the things that I think we need to do is exercise 
common sense when we review these situations.
    And that is, if you take the statement that professor just 
talked about, whether someone is restricted in the condition, 
manner, or duration in which they perform the activity compared 
to that of other persons, it becomes very obvious that what we 
are comparing are the condition, manner, or duration in which 
one person performs an activity versus the condition, manner, 
or duration in which another person does.
    So the person who walks with two artificial limbs is 
walking, and he may actually walk quickly in certain 
circumstances, but he's doing it in a fundamentally different 
way, a materially restricted way. I think what is important is 
to make sure that we are comparing like things. When we compare 
performance outcomes to the manner in which someone performs, 
we end up comparing apples and oranges and we end up with fruit 
salad and then we are just confused.
    I think what is important is that we start separating 
things out so we start comparing that which needs to be 
compared and not muddying the waters.
    Senator Harkin. Professor Feldblum.
    Ms. Feldblum. My comment actually will follow right on 
that, I hope. As you heard, the point about putting in the 
words materially restricts was simply to communicate to the 
courts that what they had done with the word ``substantially 
limits'' was too strict, too tough, excluded too many people. 
The original S. 1881 had no limitation at all. It would be any 
impairment.
    In our original conversations we wanted to cover only 
impairment with more than a minor impact, just more than a 
minor restriction. That wasn't enough for the business 
community. They needed something that was a higher level of 
severity and ultimately the disability community agreed with 
the higher level of severity because once you don't take into 
account mitigating measures, we believe you will cover the 
people with the impairment that should be covered. That's why 
we also do not disagree that when you look at the term 
materially restricts, and again, it's a functional limitation. 
I agree with Sam Bagenstos that there is a history of courts 
applying that in functional ways.
    When you look at it, it's helpful to think about it as a 
condition, manner, or duration in which you perform that 
activity as compared to the way most people perform that 
activity, be it walking, thinking, concentrating, speaking, et 
cetera. There is no confusion, Mr. Grossman, on the House 
report on this. There was an effort in the House reports to 
undo the fruit salad. There was an effort with regard to 
learning disability to explain what Jo Anne Simon just said, 
that when you decide whether someone with a learning disability 
is materially restricted you don't look at the final outcome, 
did they get A's? Maybe they did get A's, you look at whether 
their manner, duration, or condition of performing the right 
activity is different than that of most people, and that's what 
you get from a medical diagnosis.
    So it might be it looks a little too much like fruit salad 
now, and I think it would be great if the Senate could undo 
that, make more clear what are apples and what are oranges, but 
I don't think there is a disagreement of understanding in terms 
of what materially restricts is to mean.
    Senator Harkin. Before I call on you Mr. Eastman, let me 
read this. I am looking this over, and this is the final rule 
on title II of ADA. It's interesting in the final rule, under 
the substantial limitation of major life activity, they said 
here that:

          A person is considered an individual with a 
        disability for purposes of test A, the first prong, 
        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.

    You mentioned that. Most people or average person. Does 
that give us some guidance?
    Mr. Eastman.
    Mr. Eastman. Thank you. First of all I think it does. I 
agree with the prior witnesses on the condition, manner, or 
duration language. That may be an appropriate clarification 
that you may wish to consider. I would say more generally that 
materially restricts language came about because the current 
ADA does not provide any definition for ``substantially 
limits.'' The EEOC in its regulations essentially said 
substantially limits means significantly restricts.
    Now the U.S. Supreme Court questioned whether those 
regulations, whether the EEOC even had the ability to issue 
those regulations, but it said substantially limits effectively 
means severely restricts.
    In a discussion over what words we use to describe 
substantial limitation, we talked about a lot of words. We 
tried to pick a word that made it clear we are not talking 
about minor impairment and that on a scale of 1 to 10 might be 
a 1. We are not talking about moderate that might be more in 
the five range. But we are talking material. We are not talking 
severe, or severity but it's still something more than 
moderate.
    That's where the word came about. We welcome the ability to 
have a conversation about how we can further clarify it. And I 
think the condition, manner, or duration language that has been 
proposed here today would go a long way toward that.
    Senator Harkin. Well, for example, referring back to the 
final rule of title II, it says here, ``A person with a minor 
impairment such as a simple infected finger is not a symptom 
for major life activity.'' This goes on to say, ``a person who 
can walk 10 miles continuously is not substantially limited in 
walking merely because on the 11th mile he or she experiences 
pain,'' because most people would not be able to walk 11 miles 
without experiencing some discomfort,'' so again, the average 
person, most people.
    I must, for emphasis, repeat here again what they said in 
this final rule on mitigating measures. I don't know how the 
court got this wrong. I just for the life of me can't 
understand this. We put it in our report on the Senate side. It 
was in the House report, and here is the final rule that says 
``the question of whether a person has a disability should be 
assessed without regard to the availability of mitigating 
measures such as reasonable modification or auxiliary aids and 
services.''
    ``Personal hearing loss is substantially limited in the 
major life activity of hearing even though the loss may be 
improved through the use of a hearing aid. Likewise, persons 
with impairments such as epilepsy or diabetes, which could 
substantially limit a major life activity, are covered under 
the first prong of the definition of disability, even if the 
effects of the impairment are controlled by medication.''
    I just don't know how the courts got that wrong. I don't.
    Mr. Grossman.
    Mr. Grossman. Thank you. With respect to the comments of 
Ms. Simon as agreed to by Professor Feldblum, they bring up the 
concept of common sense as a limiting factor. I think it's 
important to note that with respect to the notion of 
commonsense as a means of interpreting sort of the breadth and 
the reach of the statute, I think it's important to note that 
the House drafters avowed aim was to reduce judicial discretion 
and try to pull out judge's applying their own common sense and 
engrained wisdom where it differs from Congress'.
    If Congress wishes to change the standard that is in the 
statute it should do that in a way that is clear, that is 
easily applied, and that provides appropriate guidance that may 
be enhanced through findings such as are removed by the 
Amendments Act. It may be enhanced by other parts of the 
structure of the statute and it may be enhanced by more precise 
language. That is what my greatest concern is, is that all of 
these factors are lacking in the House's text.
    Senator Harkin. Mr. Bagenstos.
    Mr. Bagenstos. I think what this bill does is not the 
common sense term but a common law term and there is a real 
difference there. With a common sense term the idea is--let's 
think about what it means to us. A common law term takes on a 
history that goes back in this case--materiality, the term 
material is used in blackstone, it is hundreds of years old in 
the common law. It confines judicial discretion by using the 
common law.
    I think given the sense of the history that we have gotten 
today, also the sense that it's material as a replacement for 
substantial, because ``substantial'' is a term, and I talk 
about this in my testimony, that everybody in the law 
recognizes can mean two totally opposite things. It could mean 
``he won the election by a substantial majority'' or it could 
mean ``substantial evidence review under the Administrative 
Procedure Act'' which means they have to have just the tiniest 
bit of evidence to support them. ``Substantial'' as a term used 
in the original ADA--very vague--did call on the courts 
effectively to pour their own policy judgments in.
    Material, not true. Material is a term that has been used 
for generations and in this context it would be applied in a 
way sensitive to this context but also bringing that meaning it 
has for generations. So, I don't think it's common sense, it's 
common law.
    Senator Enzi. I'm trying to figure this out a little bit, 
too. But I think what Mr. Hartle is talking about is the change 
of adding, as a function, thinking and concentrating, whereas 
before that wasn't as clearly defined as some of the other 
physical activities.
    How does the court construe the duty to accommodate in 
those areas? We talked about disability, different people have 
different abilities to think and concentrate. Some people need 
different surroundings to be able to do that.
    To what degree does the university have to provide that 
kind of accommodation, that's the question I ask.
    Ms. Feldblum. If I can respond to that directly. In fact, 
the major life activities of thinking and concentrating have 
been in the law for a significant amount of time. There are 
cases that have recognized thinking, concentrating as major 
life activities.
    In fact, as Sue mentions in her testimony and also the 
higher education folks, the Office of Civil Rights for the 
Department of Education, when it issued guidance to the 
schools, it specifically noted thinking and concentrating as 
major life activities.
    For years we have had thinking and concentrating as major 
life activities that have been recognized both by the courts 
and by the agencies. So, this bill is not going to change that 
in terms of these being major life activities. There is a 
difference here. As I understand their concern, in some 
situations if colleges want to be able to say, ``In order for 
you to get this degree, you need to meet certain requirements 
that might in fact require you to think and concentrate in a 
certain way or maybe even think and concentrate in a different 
language.'' There seems to be a concern, I'm not exactly sure 
why, but there seems to be a concern that schools will no 
longer be able to have those eligibility requirements. That is 
not true in terms of what the law does. So adding thinking and 
concentrating to the major life activities does not affect the 
requirements that a school can put in.
    My only concern, by the way, as to putting something in 
statutory language is because it would be really redundant of 
existing law, I'm not sure what a court would do with it. 
Certainly in legislative history, I have no problem at all 
saying that has not at all changed. In fact, a court might 
wonder why you put it in, but there would be no reason not to, 
in terms of what this bill is intended to do.
    Senator Enzi. They wonder about a lot of things we put in.
    [Laughter.]
    Senator Harkin. Is there anything else you want to bring up 
before I prod a little further on something else? If there is 
anything that you want to bring up for discussion?
    Mr. Grossman. If I might, in response to Professor 
Bagenstos--I apologize if I have mispronounced your name. In 
response to his contention that materiality is a straight 
forward concept of common law, I think it is a little bit 
misleading and potentially incorrect to say that. The term has 
been construed by the courts going back to other cases, and 
there is no doubt about that. It is construed very differently, 
however, in different context and I think that the case law is 
very clear on that point.
    The U.S. Supreme Court has actually, in the case Kungys v. 
United States, actually put forward--this is Justice Scalia--
several paragraphs on explication of how it would arrive at a 
construction of the word materiality in the context of a 
criminal statute, and it was actually looking at different uses 
of the word material in different areas of U.S. law, and 
explicitly rejected pulling in dissimilar areas of the law to 
construe the statute. I think it's also worth saying that the 
U.S. Supreme Court, when it encounters this kind of ambiguity, 
does resort to other methods such as looking things up in the 
dictionary and I think like the word substantial, you wind up 
in the dictionary definition of material which is sort of this 
bifurcated definition.
    Because, at least according to the same sort of 
dictionaries that the U.S. Supreme Court commonly applies, you 
wind up with several definitions that would seem to match 
almost with severe, which the House legislation explicitly 
rejects. On the other hand, you also see much lesser or much 
looser standards that speak to you--pertinence that speak to 
mere relevance. In other words, standards that seem, at least 
according to the House's legislative history, much lower than 
what the House is hoping to achieve in its draft language. If 
Congress aims to expand coverage of the act, it should just do 
so in a clear and straight forward way. It should use numbers, 
it should use examples, it should use clear language. It 
shouldn't replace one cipher with another.
    Mr. Bagenstos. I think it would be very difficult to use 
numbers or use examples that would really clarify things. We 
have had a lot of efforts to try to do that and they all either 
cover people we don't want to cover or don't cover people we do 
want to cover. When you look at the Kungys case--I love this 
because this is like a law school seminar, we could talk about 
discussing cases. When you look at the Kungys case, what 
Justice Scalia says as he goes through that long explication 
is, here's the thing about materiality. When you try to create 
a per se rule saying this is material and this isn't, it 
doesn't work. What we have to do is apply it sensitive to the 
context in which the term is being applied and sensitive to the 
facts surrounding it which is really what the common law does 
with very fact intensive questions like the question of what is 
a disability. Unless what we are going to do is have a list in 
the statute--amputation, epilepsy, intellectual developmental 
disabilities, on down the line--these are disabilities and 
there are very good reasons I think, why this Congress has 
rejected that in the past, then we have to use a term that 
takes account of context and that recognizes the fact intensive 
nature of these decisions and the factual specificity of these 
decisions. Using a term like ``substantial'' with no particular 
common law meaning is a problem, using a common law term is a 
good way of dealing with that.
    Senator Harkin. Again, Mr. Grossman and Mr. Bagenstos, you 
said in your written statement, as you have said here too, you 
felt that the materiality was sufficient. But you said that if 
the committee believes that additional elaboration on the 
statutory text is necessary, one possibility readily suggests 
itself--and you go on to basically use the same language that 
was in the rule on title II. Would that suffice for you, the 
same language that was used in the final rule on title II, 
which says that conditions, manner, or duration in comparison 
to most people or the average person?
    Mr. Grossman. It's my view that it certainly would add a 
lot of clarity to the legislation.
    Senator Harkin. OK. I am trying to figure this out. It 
seems there is a general consensus that we have to do more with 
the term ``materially restricts.''
    The other thing that we didn't really get to--and I see 
that the vote has started--is the whole idea of broad 
construction. On the broad construction aspect, is there 
anything more that we need to say in terms of broad 
construction other than what the House has said in this bill, 
in terms of applying this broadly. Does that need to be more 
specific or not?
    Mr. Grossman.
    Mr. Grossman. In other areas of the Federal statutory law 
Congress has usually been much more specific when it encourages 
courts to imply broad construction to the law. In other words 
it will frequently say, the exact provisions will say something 
along the lines of, ``broadly construed with respect to,'' and 
then it will list specific ends, specific factors, specific 
considerations. Those are things that are lacking from the 
current HELP language, that again adds to the confusion about 
the meaning of the law in this particular case.
    Senator Harkin. Anything else on broadly construct?
    Mr. Bagenstos. I think it is possible to write a broad 
construction provision that is like the one that is written in 
the Religious Land Use and Institutionalized Persons Act, which 
is of the type that Mr. Grossman is talking about. I just want 
to point out that actually in the statutes there are a number 
of provisions. I cite a couple of them on page 4 of my prepared 
testimony that say, and I am quoting: ``The provisions of this 
section shall be liberally construed to effectuate its 
purposes.''
    It's perfectly consistent with statutory drafting practice 
in the past, to have a provision like that in the ADA 
Amendments Act. It is also consistent with what I took to be, 
at the time the ADA was adopted, the background principles 
construing Civil Rights Laws, which is to broadly construe them 
to effectuate their purposes as Justice Stevens said in his 
descent in the Sutton case. It is sensible to have the 
provision that is currently in the bill and it is also quite 
plausible to write a different kind of more focused provision.
    Senator Harkin. As you said under the broad construction, 
broad construction provisions does nothing more than declare 
that in cases of ambiguity the plaintiff are entitled to have 
their claims of discrimination heard on the merits. That brings 
me back to Mr. McClure. A live person who basically never got 
to have his case heard. Here is a person who, correct me if I 
am wrong Mr. McClure, was hired to do a certain job and had 
done this job for many years before. The GM doctor examined him 
and found out through the examination that he couldn't raise 
his arms above his head and therefore declared him to be 
disabled, basically.
    Well GM didn't hire him. He took it to court and the court 
said, you are not disabled. So he never really got to get to 
the merits of his case. So it seems to me that this is a 
profound instance of where someone was carved out from the 
first prong and was never allowed to ever be heard on the 
merits of the case. Mr. McClure never, ever got to the merits 
of the case.
    That's why I point to this and say somehow this has to be 
more broadly construed so that people can't just be carved out 
without getting to that next step. So, it seems to me we have 
to have this construct in this bill somehow. It's very 
frustrating when people with epilepsy, amputation--and you 
think of all the veterans coming back from Iraq who are going 
to have a lot of prostheses and artificial limbs. They may be 
able to function pretty well, but if they are discriminated 
against, they will never have their case heard on the merits, 
because they fall under here, what the U.S. Supreme Court has 
now decided.
    I think this is one of the essential elements of this bill 
that we have to make sure we have it right. I am asking what 
you thought about the construct of the bill itself. I am not 
hearing anything opposite or--what I am hearing is that what's 
in the bill is good, is acceptable.
    Mr. Eastman.
    Mr. Eastman. Thank you. I wanted to emphasize the point you 
raised, Senator, which is a point that was helpful in 
explaining to employers the House bill and why it might be 
workable. Even though there is broad construction language and 
even though parts of this bill when looked at alone appear to 
be fairly broad, the fact of the matter is it's not universal 
coverage, an employee will still need to be qualified for the 
job in question, they would still need to prove their case on 
the merits.
    The employer could certainly articulate legitimate non-
discriminatory reasons for their actions, just like title VII. 
Employers, we think, will still win the cases they should win--
the frivolous cases and non-meritorious cases on that basis.
    Senator Harkin. Thank you, Mr. Eastman, and Ms. Gamm. We 
are about half way through the vote and we have to close it up.
    Ms. Gamm. I wanted to voice my dilemma. I wish I was smart 
enough to know how to deal with it. The dilemma is this. You 
look at what is a disability in all the various medical and 
physical impairments, health impairments and you look at school 
situations. Look at this huge number of kids now who somewhere, 
somehow are getting diagnosed with ADHD, or allergies--now 
there are schools that don't allow peanuts to deal with the 
peanut allergy, for example--diabetes, obesity, the numbers are 
growing. The issue becomes, those kids are in school, it's not 
like they are getting a job or getting terminated, they have a 
right to an education and the question becomes the means by 
which they get access and are able to benefit. Our concern is, 
under the current 504 regulation, there is very strict protocol 
and processes including, thorough evaluations, etc., for any 
child to determine if it rises to a level of disability and how 
do we achieve that balance between informality and informal 
planning which is now taking place and the higher threshold 
under the current 504 regulation, that requires much more 
precision and detailed direction, even though the results might 
be the same.
    Senator Harkin. Here's 504 right here.
    Ms. Gamm. We are talking about the procedural regulation.
    Senator Harkin. That's what I have up here.
    Ms. Gamm. It's a procedural regulation in terms of how you 
get to that point. I have it with me. If you want to look at 
it. It's very detailed.
    Senator Harkin. Ms. Simon, I'm a little confused myself 
right now, but go ahead.
    Ms. Simon. I think the issue is this, those procedural 
requirements to the extent that they exist in the regulations, 
are not going to be changed by this statute. The amendment to 
the ADA is not going to change that at all.
    I think the concern might be that there are students who 
might be identified who currently are not identified, and the 
question really is, whether they are protected from 
discriminatory conduct, if they don't need services, they are 
not going to be entitled to services. Whether they are 
protected by the statute or not. I think that it's very 
important that again we keep our eye on the ball with regard to 
what it is we are trying to do here. We are trying to cover 
those people who Congress originally intended to cover and who 
have been denied those protections by the courts.
    Senator Harkin. I would invite you to submit additional 
testimony to us, elaborating on this and we will be looking at 
this closely and taking everything into account. We really have 
to go. I am going to miss my vote if I don't. I want to thank 
all of you for being here and more importantly, I want to thank 
you for your long-time involvement in the process. We will be 
working on this legislation this month. Hopefully we will be 
able to move this bill. I hope to get it done this year and 
with your help, I think we can do that. So thank you all very 
much.
    We are adjourned, subject to the call of the Chair.
    [Additional material follows.]

                          ADDITIONAL MATERIAL

                  Prepared Statement of Senator Obama

    I want to thank the Chairman for holding this important 
hearing regarding the proper scope of coverage of the Americans 
with Disabilities Act. As many of you know, 54 million 
Americans--roughly 1 in 6--personally experience some form of 
disability. And the wars in Iraq and Afghanistan continue to 
increase those numbers. Yet 17 years after Congress enacted the 
Americans with Disabilities Act (ADA), Americans with 
disabilities still do not have an equal opportunity to fulfill 
the American Dream.
    In 2006, working-age Americans with disabilities were 
almost three times more likely to live below the poverty line 
than those without disabilities. While the average annual 
household income of individuals in the United States without 
disabilities was $65,400 in 2006, the average annual household 
income for people with disabilities was $36,300. And the 
employment rate for persons with disabilities in 2006 was at 
least 40 points lower than the employment rate of working-age 
individuals without disabilities. These dismal statistics offer 
evidence of severe shortcomings in our country's efforts to 
break down the barriers that exclude people with disabilities 
and deprive them of true equality of opportunity and 
independence.
    I believe the United States should lead the world in 
empowering people with disabilities to take full advantage of 
their talents so they can become independent, integrated 
members of society. Dozens of countries have adopted laws 
modeled on the Americans with Disabilities Act, but America's 
leadership in the world has faded in recent years. Passage of 
the Americans with Disabilities Restoration Act is an important 
first step in restoring our Nation's leadership in this 
important area. In recent years, the U.S. Supreme Court has 
severely restricted the application of the Americans with 
Disabilities Act (ADA) by narrowly defining what it means to 
have a ``disability.'' As a result, lower courts have held that 
people with epilepsy, diabetes, heart disease, and cancer can 
be fired from their jobs because they have those conditions. As 
a nation, that is something we should be ashamed of.
    My good friend, Senator Tom Harkin, has long been a 
national leader in the area of disability rights and I am proud 
to support his legislation, which would overturn the U.S. 
Supreme Court decisions that limit the ADA's coverage and 
effectiveness. I urge my colleagues in the Senate to join this 
bipartisan effort. I thank the Chairman for holding this 
hearing, and I thank the witnesses for their time.

                   Prepared Statement Duke University
    Duke University is strongly committed to protecting the civil 
rights of people with disabilities. The University's Disability 
Management System (DMS) provides leadership to the University and the 
University Health System in their efforts to ensure an accessible, 
hospitable working and learning environment for people with 
disabilities while ensuring compliance with Federal and State 
regulations.
    The DMS serves as a central clearinghouse for disability-related 
information, procedures and services. We provide expertise in the 
development, implementation, and acquisition of standard disability-
related University practices, procedures, and resources, including but 
not limited to:

     Reasonable Accommodation Procedures (Students, Faculty, 
Staff, Visitors)
     Effective Communication
     Assistive Technology/Adaptive Equipment
     ADA Facilities and Site Surveys/Reviews
     Disability Discrimination Grievance Procedure (in 
collaboration with the Office for Institutional Equity)

    At the outset, we express our sincere concerns about the ADA 
Amendments which will add new definitions that are unclear and will 
rely upon court decisions to reinterpret their meaning. For the 
Nation's colleges and universities, we hope that the Congress will 
ensure that however it chooses to amend this legislation, that it does 
so in a manner that enables postsecondary institutions, serving 
hundreds of thousands of students and staff with disabilities, to meet 
their obligations in a sensible manner that does not require burdensome 
analyses and engagement of high level consultants. To this end, we are 
particularly concerned about redefining ``substantially limits'' as 
``materially restricts,'' which, in our view, will again require 
judicial interpretation.
    It is clear from reviewing the House Committee Report that 
Congress' primary concern with the act's implementation as interpreted 
by the courts has been in the area of the employment of persons with 
disabilities. We believe that if the primary concern is in the 
employment area, then Congressional revisions to the act should address 
the perceived inequities in that area alone.
    We have reviewed the Senate Committee Roundtable discussion of July 
15, 2008 and offer these additional comments. First, we do not agree 
that Duke University, let alone the vast numbers of colleges and 
universities, denies accommodations to students with disabilities, such 
as individuals with cerebral palsy, epilepsy and diabetes, as suggested 
at the Roundtable. Rather, Duke University, in keeping with 
pronouncements made by the courts and OCR, has always made decisions on 
an individualized basis and we assume that Congress would want 
postsecondary institutions to continue to do so.
    We recommend that the Congress amend the proposed language to 
ensure that short-term conditions, which have not or are not expected 
to last more than 6 months, are not disabling for purposes of 
accommodation. The current proposed language only makes that clear for 
the ``regarded as'' prong and we see no basis for extending legal 
protections to individuals with short-term illnesses or conditions.
    There is an unfortunate misuse of assessments in the clinical field 
today. Our learning disability specialist can see up to 150 different 
types of assessments to document a learning disability. We note that 
certain clinicians, with a design to document a learning disability, 
will use certain subtests in a manner designed to elicit a particular 
response. The quality of many of these assessments is quite poor, and 
sadly, in some instances, is obviously designed to mislead the campus. 
We encourage the Congress to review the court decision in Love v. LSAC, 
513 F.Supp.2d 206 (E.D. Penn. 2007) to appreciate the unfortunate 
reality of what may occur when students with no or minor impairments 
attempt to garner an unfair advantage over other students by 
manipulating our civil rights laws. We cannot envision that the 
Congress would seek to cloak such deception/misuse in civil rights 
protections. Unfortunately, should Congress weaken the documentation 
requirements, we anticipate a significant rise in the number of 
requests for accommodation sought by individuals with minor or no 
impairments.
    Covering all individuals with impairments, regardless of the 
limitations imposed by such impairments, would have a significant 
impact on postsecondary institutions. Colleges and universities would 
be required to process many more requests, not merely for classroom 
accommodations but also in housing where we receive many, many requests 
for what we have historically viewed as health conditions which are in 
most cases not disabling. We anticipate that the addition of major 
bodily functions to the definition of major life activities, regardless 
of severity or mitigation, will significantly expand requests for 
accessible housing beyond management.
    What is the purpose of an accommodation? We have always interpreted 
the Federal disability laws in a manner that promotes equal opportunity 
to the goods and services that our institution provides nondisabled 
students, visitors and employees. Frankly, we are at a loss to 
understand when a person who has no current disabling condition could 
ever warrant an accommodation because there would seem to be no basis 
to support such a need if there are no current functional limitations 
associated with a past disorder.
    If Congress significantly expands the roles of who qualifies as 
disabled by increasing the major life activities in nine ways, removing 
consideration of mitigating measures (other than use of eye glasses and 
contact lenses), and modifies ``substantially limits'' to a lesser 
standard, such as ``materially restricts'' we are concerned that every 
student who has ever had a 504 plan or IEP, regardless of even the 
existence of a current impairment, would qualify for accommodations 
under the ADA/Rehabilitation Act. We find no support in anything that 
we have reviewed that has been presented to Congress to justify such a 
significant expansion. On the other hand, if Congress believes that 
colleges and universities have discriminated against students with a 
record of a disorder, we believe that the current provisions adequately 
address those concerns, which we support. Consequently, we respectfully 
see no need to alter the U.S. Department of Education's long-standing 
policy in this regard.
    In a similar vein, we do not understand why Congress would want to 
expand the obligation to provide accommodations to students who have 
conditions that are in remission. Our practice has consistently been to 
advise students that if their condition changes and they believe they 
need some form of accommodation merely to update the university on the 
status of their condition and we will reconsider their request. But we 
stress, as we believe holds true for the majority of institutions of 
higher education, our campus extends support to all patrons, be they 
employees, visitors, parents, alumni and current students who seek 
assistance, regardless of the existence of a disabling condition. 
However, as a selective institution, we are concerned that some 
students may use these amendments (designed to extend the right to 
accommodation to individuals with little or no functional limitations 
associated with a current or past disorder) to effectuate an unfair 
advantage over other students, and, as noted above, to request housing 
accommodations that will be very costly and limit the availability of 
accessible housing for those who have serious disabling conditions.
    We understand that in 2004, concerned with the significant number 
of students qualifying as disabled under the Individuals with 
Disabilities Education Act, Congress amended that act to encourage 
school systems to use interventions with students experiencing academic 
difficulties before evaluating them. We are surprised that Congress 
would now propose legislation that would seemingly result in these 
students being considered disabled under the ADA as they are using 
mitigating measures by the school's employment of response to 
intervention techniques. Again, is it Congress' intent to consider all 
of these students to be disabled under the ADA and Rehabilitation Act 
and then entitled to accommodations in postsecondary education?
    We express our concern about the elimination of mitigating measures 
from the analysis of who qualifies as having a current disabling 
condition. We frankly can think of no student who has ever had any 
impairment other than a short-term illness or injury, that is not 
episodic, who would NOT qualify for accommodations. Every student who 
has been on an IEP or a 504 plan has received mitigating measures--by 
definition. We speak with lengthy experience formed by our own 
disability experts as well as consultants we use to assist us in this 
area as to the difficulty in making decisions based on self-reporting. 
As an example, many of our students, with or without impairments, have 
studied long hours in order to gain admission to this university--
studying long hours could qualify as a behavioral adaptation for any 
impairment. Many students have purchased tutorial assistance, again a 
mitigating measure, to assist them in their educational careers. If 
these students have any impairment that they link with their tutorial 
assistance, we are concerned that these students would also qualify for 
accommodations.
    Finally, as the Congress understands, the number of students with 
an array of mental health problems is increasing on our campuses. We, 
like many other institutions, afford counseling services and other 
supports to assist students. We have consistently provided 
accommodations to those students with chronic serious mental health 
conditions whose conditions are not well-controlled with medication 
and/or treatment. We express our sincere concerns that if the ADA 
Amendments as currently written are adopted, that virtually any student 
experiencing anxiety or depression, no matter how severe, that extends 
for more than a short period of time, even if episodic, would be 
eligible for accommodations. The proposed Amendments will render most 
students served by our Counseling and Psychological Services office as 
members of a protected class. Again, given the breadth of the proposed 
expansion of the definition of who is considered to be a person with a 
disability, we believe that Congress may not have appreciated how the 
proposed Amendments would significantly expand the number of affected 
students whose conditions are not chronic, do not pose significant 
limitations and/or are treatable.
    In conclusion, we appreciate that the Congress is concerned about 
how the courts have interpreted the ADA in the employment sector. Our 
review of the testimony at the hearings appears largely about when an 
employer has refused to permit an employee to use mitigating measures 
that would permit him/her to perform a job. We have no objection to 
Congress enacting legislation to curb that ill. Similarly, we have no 
objection to Congress ensuring that the ``regarded as'' prong protects 
individuals who suffer adverse consequences as a result of the negative 
attitudes and/or misperceptions about an actual or perceived disorder. 
The University's primary concern is Congress' effort to expand the 
right to receive accommodations to significant numbers of students with 
minor or no current impairments. We truly believe that in the end, this 
will work a disservice to students with serious impairments with 
accompanying functional limitations. Thank you for considering our 
comments.

    Questions regarding this statement should be directed to: 
Christopher Simmons, Associate Vice President, Office of Federal 
Relations, Duke University, Durham, North Carolina 919-668-6270.

    [Whereupon, at 11:48 a.m., the hearing was adjourned.]




