[Congressional Record Volume 153, Number 121 (Thursday, July 26, 2007)]
[Senate]
[Pages S10151-S10153]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
By Mr. HARKIN (for himself and Mr. Specter):
S. 1881. A bill to amend the Americans with Disabilities Act of 1990
to restore the intent and protections of that Act, and for other
purposes; to the Committee on Health, Education, Labor, and Pensions.
Mr. HARKIN. Mr. President, I am joining, today, with the senior
Senator from Pennsylvania, Senator Specter, in introducing the ADA
Restoration Act of 2007.
Today, July 26, marks the 17th anniversary of the signing of the
Americans with Disabilities Act, one of the landmark civil rights laws
of the 20th century, and a long-overdue emancipation proclamation for
the 50 million Americans with disabilities.
As chief sponsor of the ADA in the Senate, I take pride in the
progress we have made as a Nation since 1990. We have removed most
physical barriers to movement and access for the 50 million Americans
with disabilities. We have required employers to provide reasonable
accommodations so that people with disabilities can have equal
opportunity in the workplace. We have advanced the 4 goals of the ADA,
equality of opportunity, full participation, independent living, and
economic self-sufficiency.
So today is a day, first and foremost, to celebrate all that has been
accomplished over the last 17 years.
But despite that progress, there is a problem. In recent years, the
courts have ignored Congress's clear intent as to who should be
protected under the ADA. And the courts have narrowed the definition of
who qualifies as an ``individual with a disability.'' As a consequence,
millions of people we intended to be protected under the ADA, including
people with epilepsy, diabetes, and cancer, are not protected any more.
In a ruling just this spring, the 11th Circuit court even concluded
that a person with mental retardation was not ``disabled'' under the
ADA.
Looking back through the legislative history, it is abundantly clear
that Congress intended that the protections in the ADA apply to all
persons without regard to mitigating circumstances, such as taking
medication or using an assistive device.
In the Senate Labor and Human Resources Committee report Congress
said:
Whether a person has a disability should be assessed
without regard to the availability of mitigating measures,
such as reasonable accommodations or auxiliary aids.
The House Education and Labor Committee report says the same thing,
and goes on to say:
For example, a person who is hard of hearing is
substantially limited in the major life activity of hearing,
even though the loss may be corrected through the use of a
hearing aid. Likewise, persons with impairments, such as
epilepsy or diabetes, which substantially limit a major life
activity are covered under . . . the definition of
disability, even if the effects of the impairment are
controlled by medication.
Nonetheless, in a series of cases, the Supreme Court ignored
Congressional intent. Together, these Supreme Court cases have created
an absurd and unintended Catch 22. People with serious health
conditions like epilepsy or diabetes who are fortunate to find
treatments that make them more capable and independent, and more able
to work, may find that they are no longer protected by the ADA. If
these individuals are no longer covered under the ADA, then their
requests for a reasonable accommodation at work can be denied, or they
can be fired. On the other hand, if they stop taking their medication,
they will be considered a person with a disability under the ADA, but
they will be unable to do their job.
This is not just absurd, it is wrong. It flies in the face of clear,
unambiguous Congressional intent. When we passed the law, there was
common agreement on both sides of the aisle, and on the part of the
White House, that the law was designed to protect any individual who is
treated less favorably because of a current, past, or perceived
disability.
[[Page S10152]]
This situation cries out for a modest, reasonable legislative fix,
and that is exactly what we are doing, today, by introducing the ADA
Restoration Act of 2007.
Our bill amends the definition of ``disability'' so that people who
Congress originally intended to be protected from discrimination are
covered under the ADA.
Mr. Presdient, 17 years ago, the Americans with Disabilities Act
passed with overwhelming bipartisan support. Likewise, today, we are
building a strong bicameral, bipartisan majority to support ADA
Restoration. A companion bill is being introduced, today, in the House.
As with the original passage of the ADA in 1990, it is going to take
time to hold hearings and build strong majorities. But I look forward
to working to restore Congress' original intent, and, once again, to
ensure that Americans with disabilities are protected from
discrimination.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the text of the bill was orderd to be
printed in the Record, as follows:
S. 1881
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Americans with Disabilities
Act Restoration Act of 2007''.
SEC. 2. FINDINGS AND PURPOSES.
(a) Findings.--Congress finds that--
(1) in enacting the Americans with Disabilities Act of
1990, Congress intended that the Act ``establish a clear and
comprehensive prohibition of discrimination on the basis of
disability'', and provide broad coverage and vigorous and
effective remedies without unnecessary and obstructive
defenses;
(2) decisions and opinions of the Supreme Court have unduly
narrowed the broad scope of protection afforded by the
Americans with Disabilities Act of 1990, eliminating
protection for a broad range of individuals whom Congress
intended to protect;
(3) in enacting the Americans with Disabilities Act of
1990, Congress recognized that physical and mental
impairments are natural parts of the human experience that in
no way diminish a person's right to fully participate in all
aspects of society, but Congress also recognized that people
with physical or mental impairments having the talent,
skills, abilities, and desire to participate in society are
frequently precluded from doing so because of prejudice,
antiquated attitudes, or the failure to remove societal and
institutional barriers;
(4)(A) Congress modeled the Americans with Disabilities Act
of 1990 definition of disability on that of section 504 of
the Rehabilitation Act of 1973 (referred to in this section
as ``section 504''), which had, prior to the date of
enactment of the Americans with Disabilities Act of 1990,
been construed broadly to encompass both actual and perceived
limitations, and limitations imposed by society; and
(B) the broad conception of the definition contained in
section 504 had been underscored by the Supreme Court's
statement in its decision in School Board of Nassau County v.
Arline, 480 U.S. 273 (1987), that the definition
``acknowledged that society's myths and fears about
disability and disease are as handicapping as are the
physical limitations that flow from actual impairment'';
(5) in adopting, in the Americans with Disabilities Act of
1990, the concept of disability expressed in section 504,
Congress understood that adverse action based on a person's
physical or mental impairment is often unrelated to the
limitations caused by the impairment itself;
(6) instead of following congressional expectations that
the term ``disability'' would be interpreted broadly in the
Americans with Disabilities Act of 1990, the Supreme Court
has ruled, in Toyota Motor Manufacturing, Kentucky, Inc. v.
Williams, 534 U.S. 184 (2002), that the elements of the
definition ``need to be interpreted strictly to create a
demanding standard for qualifying as disabled'' and,
consistent with that view, has narrowed the application of
the definition in various ways; and
(7) contrary to explicit congressional intent expressed in
the committee reports for the Americans with Disabilities Act
of 1990, the Supreme Court has eliminated from the Act's
coverage individuals who have mitigated the effects of their
impairments through the use of such measures as medication
and assistive devices.
(b) Purpose.--The purposes of this Act are--
(1) to effect the Americans with Disabilities Act of 1990's
objectives of providing ``a clear and comprehensive national
mandate for the elimination of discrimination'' and ``clear,
strong, consistent, enforceable standards addressing
discrimination'' by restoring the broad scope of protection
available under the Americans with Disabilities Act of 1990;
(2) to respond to certain decisions of the Supreme Court,
including Sutton v. United Air Lines, 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), and Toyota Motor Manufacturing, Kentucky, Inc. v.
Williams, 534 U.S. 184 (2002), that have narrowed the class
of people who can invoke the protection from discrimination
that the Americans with Disabilities Act of 1990 provides;
and
(3) to reinstate the original congressional intent
regarding the definition of disability in the Americans with
Disabilities Act of 1990 by clarifying that the protection of
that Act is available for all individuals who are--
(A) subjected to adverse treatment based on an actual or
perceived impairment, or a record of impairment; or
(B) adversely affected--
(i) by prejudiced attitudes, such as myths, fears,
ignorance, or stereotypes concerning disability or particular
disabilities; or
(ii) by the failure to remove societal and institutional
barriers, including communication, transportation, and
architectural barriers, or the failure to provide reasonable
modifications to policies, practices, and procedures,
reasonable accommodations, and auxiliary aids and services.
SEC. 3. FINDINGS IN AMERICANS WITH DISABILITIES ACT OF 1990.
Section 2(a) of the Americans with Disabilities Act of 1990
(42 U.S.C. 12101(a)) is amended--
(1) by striking paragraph (1) and inserting the following:
``(1)(A) physical and mental disabilities are natural parts
of the human experience that in no way diminish a person's
right to fully participate in all aspects of society; and
``(B)(i) people with physical or mental disabilities having
the talent, skills, abilities, and desire to participate in
society are frequently precluded from doing so because of
discrimination; and
``(ii) other people who have a record of a disability or
are regarded as having a disability have also been subjected
to discrimination;''; and
(2) by striking paragraph (7) and inserting the following:
``(7)(A) individuals with disabilities have been subjected
to a history of purposeful unequal treatment, have had
restrictions and limitations imposed upon them because of
their disabilities, and have been relegated to positions of
political powerlessness in society; and
``(B) classifications and selection criteria that exclude
individuals with disabilities should be strongly disfavored,
subjected to skeptical and meticulous examination, and
permitted only for highly compelling reasons, and never on
the basis of prejudice, myths, irrational fears, ignorance,
or stereotypes about disability;''.
SEC. 4. DISABILITY DEFINED.
Section 3 of the Americans with Disabilities Act of 1990
(42 U.S.C. 12102) is amended--
(1) by striking paragraph (2) and inserting the following:
``(2) Disability.--
``(A) In general.--The term `disability' means--
``(i) a physical or mental impairment;
``(ii) a record of a physical or mental impairment; or
``(iii) being regarded as having a physical or mental
impairment.
``(B) Rule of construction.--
``(i) Determination of impairment.--The determination of
whether an individual has a physical or mental impairment
shall be made without regard to--
``(I) whether the individual uses a mitigating measure;
``(II) the impact of any mitigating measures the individual
may or may not be using;
``(III) whether any manifestation of the impairment is
episodic; or
``(IV) whether the impairment is in remission or latent.
``(ii) Mitigating measures.--The term `mitigating measure'
means any treatment, medication, device, or other measure
used to eliminate, mitigate, or compensate for the effect of
an impairment, and includes prescription and other
medications, personal aids and devices (including assistive
technology devices and services), reasonable accommodations,
and auxiliary aids and services.''; and
(2) by redesignating paragraph (3) as paragraph (7) and
inserting after paragraph (2) the following:
``(3) Mental impairment.--The term `mental', used with
respect to an impairment, means any mental or psychological
disorder such as mental retardation, organic brain syndrome,
emotional or mental illness, or specific learning disability.
``(4) Physical impairment.--The term `physical', used with
respect to an impairment, means any physiological disorder or
condition, cosmetic disfigurement, or anatomical loss
affecting 1 or more of the following body systems:
``(A) Neurological.
``(B) Musculoskeletal.
``(C) Special sense organs.
``(D) Respiratory, including speech organs.
``(E) Cardiovascular.
``(F) Reproductive.
``(G) Digestive.
``(H) Genitourinary.
``(I) Hemic and lymphatic.
``(J) Skin.
``(K) Endocrine.
``(5) Record of a physical or mental impairment.--The term
`record of a physical or mental impairment' means a history
of, or a
[[Page S10153]]
misclassification as having, a physical or mental impairment.
``(6) Regarded as having a physical or mental impairment.--
The term `regarded as having a physical or mental impairment'
means perceived or treated as having a physical or mental
impairment, whether or not the individual involved has an
impairment.''.
SEC. 5. ADVERSE ACTION.
The Americans with Disabilities Act of 1990 is amended by
inserting after section 3 (42 U.S.C. 12102) the following:
``SEC. 4. ADVERSE ACTION.
``An adverse action taken by an entity covered under this
Act against an individual because of that individual's use of
a mitigating measure or because of a side effect or other
consequence of the use of such a measure shall constitute
discrimination under this Act.''.
SEC. 6. DISCRIMINATION ON THE BASIS OF DISABILITY.
Section 102 of the Americans with Disabilities Act of 1990
(42 U.S.C. 12112) is amended--
(1) in subsection (a), by striking ``against a qualified
individual with a disability because of the disability of
such individual'' and inserting ``against an individual on
the basis of disability''; and
(2) in subsection (b), in the matter preceding paragraph
(1), by striking the term ``discriminate'' and inserting
``discriminate against an individual on the basis of
disability''.
SEC. 7. QUALIFIED INDIVIDUAL.
Section 103(a) of the Americans with Disabilities Act of
1990 (42 U.S.C. 2113(a)) is amended by striking ``that an
alleged'' and inserting ``that--
``(1) the individual alleging discrimination under this
title is not a qualified individual with a disability; or
``(2) an alleged''.
SEC. 8. RULE OF CONSTRUCTION.
Section 501 of the Americans with Disabilities Act of 1990
(42 U.S.C. 12201) is amended by adding at the end the
following:
``(e) Broad Construction.--In order to ensure that this Act
achieves the purpose of providing a comprehensive prohibition
of discrimination on the basis of disability and to advance
the remedial purpose of this Act, the provisions of this Act
shall be broadly construed.
``(f) Regulations.--
``(1) In general.--Not later than 180 days after the date
of enactment of the Americans with Disabilities Act
Restoration Act of 2007--
``(A) the Attorney General, the Equal Employment
Opportunity Commission, and the Secretary of Transportation
shall issue regulations described in sections 106, 204, 223,
229, 244, and 306, as appropriate, including regulations that
implement sections 3 and 4, to carry out the corresponding
provisions of this Act, as this Act is amended by the
Americans with Disabilities Act Restoration Act of 2007; and
``(B) the Architectural and Transportation Barriers
Compliance Board shall issue supplementary guidelines
described in section 504, to supplement the existing Minimum
Guidelines and Requirements for Accessible Design for
purposes of titles II and III of this Act, as this Act is
amended by the Americans with Disabilities Act Restoration
Act of 2007.
``(2) Construction.--Nothing in this subsection shall be
construed to limit the authority of an officer or agency
described in paragraph (1) to issue regulations or guidelines
under any other provision of this Act, other than this
subsection.
``(g) Deference to Regulations and Guidance.--Duly issued
Federal regulations and guidance for the implementation of
the Americans with Disabilities Act of 1990, including
provisions implementing and interpreting the definition of
disability, shall be entitled to deference by administrative
agencies or officers, and courts, deciding an issue in any
action brought under this Act.''.
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