[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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