[Congressional Record Volume 153, Number 123 (Monday, July 30, 2007)]
[Senate]
[Pages S10210-S10212]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              AMERICANS WITH DISABILITIES RESTORATION ACT

  Mr. HARKIN. Mr. President, last Thursday, July 26, 2007, was the 17th 
anniversary of the signing of the Americans with Disabilities Act. On 
that day in 1990, thousands of people gathered on the south lawn of the 
White House. It was the largest gathering at least to that date--it may 
still be--for the signing of legislation. It was a beautiful sunny day. 
President Bush signed the Americans with Disabilities Act into law. 
That bill had taken a long time to develop, years to develop. A lot of 
hard work and effort went into it.
  As the chief Senate sponsor of that bill, getting that bill passed 
was the proudest day in my life, having been raised with a brother who 
was disabled. Seeing how he was discriminated against all his life 
compelled me when

[[Page S10211]]

I first came to the House and then to the Senate to work on these 
issues, the issues of the discrimination against Americans with 
disabilities and how people with disabilities had been kept out of the 
mainstream of American life, how they had been shunted aside, 
warehoused, categorized in ways that demean their personhood in ways 
that prevented them from contributing all they could to our American 
society.
  So the Americans with Disabilities Act was a major civil rights act--
a major civil rights act--to ban discrimination, just as we did against 
people of color, against women, national origin, sex, for example. We 
now include people with disabilities under a broad civil rights 
umbrella.
  We have made great advances since that time. It is all over. One can 
see it wherever one goes--curb cuts, accessible buses, accessible 
trains, widened doors. Every building now built in the United States of 
America is fully accessible. Architecture has changed. I have a nephew 
who is an architect, and he said when that bill became law in the 
1990s, architecture school started teaching different subjects, 
architecture firms started designing buildings differently for 
universal accessibility. We have come to accept that situation.
  There is a problem, and the problem has come about through some 
Supreme Court decisions of late. That is why last Thursday on the 17th 
anniversary of the signing of the Americans with Disabilities Act, I 
joined with Senator Specter of Pennsylvania, with House majority leader 
Steny Hoyer, and the ranking member of the House Judiciary Committee, 
Congressman Jim Sensenbrenner, in introducing a bipartisan measure 
called the ADA Restoration Act of 2007.
  As I will explain in more detail shortly, this bill offers a modest, 
reasonable legislative fix in response to court decisions that have 
misconstrued the original legislative intent of the Americans with 
Disabilities Act, which I will refer to now on as the ADA.
  Again, what is remarkable about this legislation is that it was done 
in a spirit of genuine bipartisanship, with Members of both parties 
coming together to do the right thing for millions of Americans with 
disabilities. But that is the way we developed the first ADA in 1990. 
It was a truly overwhelming bipartisan effort. As I said, as I was the 
chief sponsor in the Senate, I worked very closely with then-Senator 
Bob Dole who had been the majority leader and then was the ranking 
minority member in the Senate. We had invaluable support, of course, 
from the White House. President George Bush, Bush 41, George Herbert 
Walker Bush, was very helpful; Key members of the administration--I 
especially want to note for the record Boyden Gray, White House 
counsel, without whose support and intervention the law probably would 
never have been passed; Attorney General Richard Thornburgh, again a 
key player in getting the ADA passed in 1990; Sam Skinner, then 
Transportation Secretary, also was very much involved.
  The introduction of the ADA Restoration Act last Thursday and the 
reaction to it has been a breath of fresh air amidst all the going back 
and forth politically in Washington, very much in the same spirit we 
had in 1990 when members of both parties embraced the legislation as 
something that can and should be done and should be beyond 
partisanship. There was a sense that on this one measure, we could put 
partisanship aside and come together as a unified body and make a real 
difference in the lives of our fellow citizens who have disabilities.
  The fact is, we all take pride in the progress we have made in the 
last 17 years. Nobody wants to go backward. The ADA, as I said, is one 
of the great landmark civil rights legislation of the 20th century, a 
long overdue emancipation proclamation for millions of Americans with 
disabilities.
  Again, we removed most physical barriers. We have required employers 
to provide reasonable accommodations so that people with disabilities 
can get jobs and have equal opportunity in the workplace.
  There were four goals of the ADA, four pillars, so to speak: equality 
of opportunity, full participation, independent living, and economic 
self-sufficiency.
  The reach of the ADA revolution struck me some time ago in 
Washington. I attended a downtown convention of several hundred 
disability rights advocates, many with very severe impairments. They 
arrived in Washington on trains and planes and buses built to 
accommodate people in wheelchairs. They came to the hotel on the Metro 
and in regular buses all seamlessly accessible by wheelchair. They 
navigated city streets equipped with curb cuts and ramps. The hotel 
where the convention took place was equipped in countless ways to 
accommodate people with disabilities. There were sign language 
interpreters on the dias so people with hearing disabilities could be 
full participants.
  For those of us able-bodied, these many changes are all but 
invisible, but for a person in a wheelchair, for a person without 
sight, for a person with deafness, they are transforming and 
liberating.
  So our provisions in ADA outlawed discrimination against qualified 
individuals with disabilities in the workplace and required employers 
to provide reasonable accommodations. But, as I said, a problem has 
arisen.
  In recent years, the courts have ignored Congress's clear intent as 
to who is to be covered by the ADA. The courts have narrowed the 
definition of who qualifies as an individual with a disability. As a 
consequence, millions of people whom we intended to be covered by the 
ADA, including people with epilepsy, diabetes, yes, even cancer, are 
not protected anymore. In a ruling this spring, the Eleventh Circuit 
Court even concluded that a person with mental retardation was not 
disabled under the ADA.
  Looking back to the legislative history, it is abundantly clear that 
we in Congress intended that the protections of the Americans with 
Disabilities Act apply to all persons without regard to mitigating 
circumstances, such as taking medicine or using an assistive device.
  Nonetheless, in a series of cases, the Supreme Court has all but 
ignored congressional intent. Together, these Supreme Court cases have 
created an absurd and unintended catch 22-type situation. People with 
serious health conditions, such as epilepsy or diabetes or seeing 
problems, who are fortunate to find treatments that make them more 
capable and independent and, thus, more able to work may find they are 
no longer protected by the ADA. If these individuals are no longer 
covered by the ADA, then their request for reasonable accommodations in 
the workplace can be ignored, denied, or they can be fired. On the 
other hand, if they stop taking their medication or stop using an 
assistive device, they will be considered a person with a disability 
under the ADA but they won't be qualified for the job.
  Think about what kind of a position this puts a person in. Let's say 
you have epilepsy and you take medication to control it. That makes you 
able to work. But under the Court decisions, if you take a job and the 
employer finds out you have epilepsy, they can fire you. And guess 
what. You are not covered by the ADA. On the other hand, if I have 
epilepsy, I don't take my medication, and I have seizures, I will never 
get the job. This is absurd. It is absurd, and it is wrong. It flies in 
the face of clear, unambiguous congressional intent.
  I often tell people that when we write laws here, we don't write 
every little thing into the law. That is why we have hearings, that is 
why we have committee prints, and that is why we have report language 
that goes with the laws we pass. It is very clear and it was common 
agreement at that time, on both sides of the aisle and with the White 
House, that the law was designed to protect any individual who is 
treated less favorably because of current, past, or a perceived 
disability--a perceived disability.
  Listen to the report language. Here is the report language we had in 
the Senate report accompanying the bill:

       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 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

[[Page S10212]]

     under the definition of disability, even if the effects of 
     the impairment are controlled by medication.

  This is important because if an individual, I repeat, is not 
considered to be disabled under the ADA, then they do not have the 
protections of the Americans with Disabilities Act. For example, as I 
said, they are not entitled to reasonable accommodation on the job and 
they can be fired for any reason--let's say not being able to do the 
job without an accommodation. So if you are a person with a disability 
and you have an assistive device, you get the job and you need a 
reasonable accommodation so you can do the job, but the employer says: 
I am not going to do it, well, guess what. They do not have to because 
the individual is no longer considered disabled. But if they didn't 
have the assistive device, they wouldn't get the job in the first 
place.
  This is what has happened, and it has created consternation among 
people with disabilities who want to use assistive devices and take 
medication and do things--they want to work. But if they do that, they 
are no longer protected by the ADA.
  So that is why we have introduced the ADA restoration bill, to again 
overcome the hurdles the Supreme Court has pronounced in three or four 
cases--I won't get into those now--and so that we get to the original 
intent of the ADA, which is to say you are covered if you have a past 
disability, a present disability, or you are perceived to have a 
disability.
  Again, I repeat, we have a supreme absurdity confronting people with 
disabilities now. People with serious health conditions, such as 
epilepsy or diabetes, who are fortunate to find treatments that make 
them more capable and independent, more able to work, may now find they 
are no longer covered by the ADA.
  One last thing. In another Supreme Court case, the Court held there 
must be ``a demanding standard for qualifying as disabled.'' This, too, 
has resulted in a much more restrictive requirement than Congress 
intended and has had the effect of excluding countless individuals with 
disabilities from the protections of the law.
  So the situation cries out for a modest, reasonable legislative fix, 
and that is exactly what Senator Specter and Congressmen Hoyer and 
Sensenbrenner and I and many other cosponsors propose to do with the 
ADA Restoration Act of 2007. Our bill amends the definition of 
disability so that people Congress originally intended to be protected 
are covered under the ADA.
  Mr. President, 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. As I said, the companion bill was introduced in the House 
last week. Now, as with the ADA in 1990, it will take some time. We 
have to have hearings. It has been referred to four committees in the 
House and referred to the HELP Committee here in the Senate. But I am 
grateful for the bipartisan spirit with which we are approaching this 
legislation.
  We have said all along, going clear back to the 1980s, that the 
Americans with Disabilities Act is supremely nonpartisan. There is 
nothing Republican, Democratic, liberal, conservative, or anything else 
about this. It is simply doing the right thing. As we look back over 
the last 17 years, we can take pride in what we have done, particularly 
when you see the curb cuts all over America or you go into movie 
theaters now and you see places where people with wheelchairs can come 
in or you go into restaurants now and see families taking out somebody 
who maybe has a seeing-eye dog or a companion dog. We have even made 
the Capitol of the United States fully accessible to people with 
disabilities. As I said, every place all over America, even sports 
stadiums, has been transformed.
  The ACTING PRESIDENT pro tempore. The time of the Senator has 
expired, and the time of the majority has also expired.
  Mr. HARKIN. Mr. President, I ask unanimous consent for 1 more minute.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. HARKIN. Again, we have come to the point where we have to go back 
and put into law what it is we originally intended and to cover people 
now who are caught in this absurd catch-22 situation. We have an 
opportunity again to come together as Republicans and Democrats. We 
have a chance to come together for millions of Americans with 
disabilities.
  I look forward to working with colleagues on both sides of the aisle 
to restore Congress's original intent, to ensure that Americans with 
disabilities are protected from discrimination. So on behalf of Senator 
Specter and myself, the Senate bill is S. 1881, and we encourage 
Senators to take a look at it. We hope we can get good bipartisan 
support, have our hearings on it this fall, and get this enacted as 
soon as possible, probably early next year sometime.
  Mr. President, I yield the floor, and I suggest the absence of a 
quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. BAUCUS. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.

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