Congressional Record, Volume 154 Issue 106 (Wednesday, June 25, 2008)

[Congressional Record Volume 154, Number 106 (Wednesday, June 25, 2008)]
[House]
[Pages H6058-H6075]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

{time} 1615
ADA AMENDMENTS ACT OF 2008

Mr. GEORGE MILLER of California. Madam Speaker, pursuant to H. Res.
1299, I call up the bill (H.R. 3195) to restore the intent and
protections of the Americans with Disabilities Act of 1990, and ask for
its immediate consideration.
The Clerk read the title of the bill.
The text of the bill is as follows:

H.R. 3195

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 ``ADA Restoration Act of
2007''.

SEC. 2. FINDINGS AND PURPOSES.

(a) Findings.--Congress finds that--
(1) in enacting the Americans with Disabilities Act of 1990
(ADA), 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 in the ADA,
eliminating protection for a broad range of individuals who
Congress intended to protect;
(3) in enacting the ADA, 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) Congress modeled the ADA definition of disability on
that of section 504 of the Rehabilitation Act of 1973, which,
through the time of the ADA's enactment, had been construed
broadly to encompass both actual and perceived limitations,
and limitations imposed by society;
(5) the broad conception of the definition had been
underscored by the Supreme Court's statement in its decision
in School Board of Nassau County v. Arline, 480 U.S. 273, 284
(1987), that the section 504 definition ``acknowledged that
society's accumulated myths and fears about disability and
disease are as handicapping as are the physical limitations
that flow from actual impairment'';
(6) in adopting the section 504 concept of disability in
the ADA, 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;
(7) instead of following congressional expectations that
disability would be interpreted broadly in the ADA, the
Supreme Court has ruled, in Toyota Motor Manufacturing,
Kentucky, Inc. v. Williams, 534 U.S. 184, 197 (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
(8) contrary to explicit congressional intent expressed in
the ADA committee reports, 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 ADA'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 ADA;
(2) to respond to certain decisions of the Supreme Court,
including 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), 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
the ADA provides; and
(3) to reinstate original congressional intent regarding
the definition of disability by clarifying that ADA
protection is available for all individuals who are subjected
to adverse treatment based on actual or perceived impairment,
or record of impairment, or are adversely affected by
prejudiced attitudes, such as myths, fears, ignorance, or
stereotypes concerning disability or particular disabilities,
or by the failure to remove societal and institutional
barriers, including communication, transportation, and
architectural barriers, and the failure to provide reasonable
modifications to policies, practices, and procedures,
reasonable accommodations, and auxiliary aids and services.

SEC. 3. CODIFIED FINDINGS.

Section 2(a) of the Americans with Disabilities Act of 1990
(42 U.S.C. 12101) is amended--
(1) by amending paragraph (1) to read as follows:
``(1) physical or 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, yet people
with physical or mental disabilities having the talent,
skills, abilities, and desires to participate in society
frequently are precluded from doing so because of
discrimination; others who have a record of a disability or
are regarded as having a disability also have been subjected
to discrimination;''.
(2) by amending paragraph (7) to read as follows:
``(7) individuals with disabilities have been subject 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; classifications and
selection criteria that exclude persons 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,
ignorance, myths, irrational fears, 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 amending paragraph (2) to read as follows:
``(2) Disability.--
``(A) In general.--The term `disability' means, with
respect to an individual--
``(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) The determination of whether an individual has a
physical or mental impairment shall be made without
considering the impact of any mitigating measures the
individual may or may not be using or whether or not any
manifestations of an impairment are episodic, in remission,
or latent.
``(ii) The term `mitigating measures' 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, or auxiliary aids and
services.

[[Page H6059]]

``(iii) Actions taken by a covered entity with respect to
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 be considered
actions taken on the basis of a disability under this Act.''.
(2) by redesignating paragraph (3) as paragraph (7) and
inserting after paragraph (2) the following:
``(3) Physical impairment.--The term `physical impairment'
means any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more of
the following body systems: neurological; musculoskeletal;
special sense organs; respiratory, including speech organs;
cardiovascular; reproductive; digestive; genito-urinary;
hemic and lymphatic; skin; and endocrine.
``(4) Mental impairment.--The term `mental impairment'
means any mental or psychological disorder such as mental
retardation, organic brain syndrome, emotional or mental
illness, or specific learning disabilities.
``(5) Record of physical or mental impairment.--The term
`record of physical or mental impairment' means having a
history of, or having been misclassified 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 being perceived or treated as having a physical or
mental impairment whether or not the individual has an
impairment.''.

SEC. 5. 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 ``discriminate'' and inserting
``discriminate against an individual on the basis of
disability''.

SEC. 6. QUALIFIED INDIVIDUAL.

Section 103(a) of the Americans with Disabilities Act of
1990 (42 U.S.C. 12113(a)) is amended by striking ``that an
alleged application'' and inserting ``that--
``(1) the individual alleging discrimination under this
title is not a qualified individual with a disability; or
``(2) an alleged application''.

SEC. 7. 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 its purpose of providing a comprehensive prohibition
of discrimination on the basis of disability, the provisions
of this Act shall be broadly construed to advance their
remedial purpose.
``(f) Regulations.--In order to provide for consistent and
effective standards among the agencies responsible for
enforcing this Act, the Attorney General shall promulgate
regulations and guidance in alternate accessible formats
implementing the provisions herein. The Equal Employment
Opportunity Commission and Secretary of Transportation shall
then issue appropriate implementing directives, whether in
the nature of regulations or policy guidance, consistent with
the requirements prescribed by the Attorney General.
``(g) Deference to Regulations and Guidance.--Duly issued
Federal regulations and guidance for the implementation of
this Act, including provisions implementing and interpreting
the definition of disability, shall be entitled to deference
by administrative bodies or officers and courts hearing any
action brought under this Act.''.

The SPEAKER pro tempore. Pursuant to House Resolution 1299, the
amendment in the nature of a substitute recommended by the Committee on
Education and Labor, printed in the bill is adopted and the bill, as
amended, is considered read.
The text of the bill, as amended, is as follows:

H.R. 3195

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 ``ADA Amendments Act of
2008''.

SEC. 2. FINDINGS AND PURPOSES.

(a) Findings.--Congress finds that--
(1) in enacting the Americans with Disabilities Act of 1990
(ADA), Congress intended that the Act ``provide a clear and
comprehensive national mandate for the elimination of
discrimination against individuals with disabilities'' and
provide broad coverage;
(2) in enacting the ADA, Congress recognized that physical
and mental disabilities in no way diminish a person's right
to fully participate in all aspects of society, but that
people with physical or mental disabilities are frequently
precluded from doing so because of prejudice, antiquated
attitudes, or the failure to remove societal and
institutional barriers;
(3) while Congress expected that the definition of
disability under the ADA would be interpreted consistently
with how courts had applied the definition of handicap under
the Rehabilitation Act of 1973, that expectation has not been
fulfilled;
(4) the holdings of the Supreme Court in Sutton v. United
Airlines, Inc., 527 U.S. 471 (1999) and its companion cases,
and in Toyota Motor Manufacturing, Kentucky, Inc. v.
Williams, 534 U.S. 184 (2002) have narrowed the broad scope
of protection intended to be afforded by the ADA, thus
eliminating protection for many individuals whom Congress
intended to protect; and
(5) as a result of these Supreme Court cases, lower courts
have incorrectly found in individual cases that people with a
range of substantially limiting impairments are not people
with disabilities.
(b) Purposes.--The purposes of this Act are--
(1) to carry out the ADA's objectives of providing ``a
clear and comprehensive national mandate for the elimination
of discrimination'' and ``clear, strong, consistent,
enforceable standards addressing discrimination'' by
reinstating a broad scope of protection to be available under
the ADA;
(2) to reject the requirement enunciated by the Supreme
Court in Sutton v. United Airlines, Inc., 527 U.S. 471 (1999)
and its companion cases that whether an impairment
substantially limits a major life activity is to be
determined with reference to the ameliorative effects of
mitigating measures;
(3) to reject the Supreme Court's reasoning in Sutton v.
United Airlines, Inc., 527 U.S. 471 (1999) with regard to
coverage under the third prong of the definition of
disability and to reinstate the reasoning of the Supreme
Court in School Board of Nassau County v. Arline, 480 U.S.
273 (1987) which set forth a broad view of the third prong of
the definition of handicap under the Rehabilitation Act of
1973;
(4) to reject the standards enunciated by the Supreme Court
in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams,
534 U.S. 184 (2002), that the terms ``substantially'' and
``major'' in the definition of disability under the ADA
``need to be interpreted strictly to create a demanding
standard for qualifying as disabled,'' and that to be
substantially limited in performing a major life activity
under the ADA ``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''; and
(5) to provide a new definition of ``substantially limits''
to indicate that Congress intends to depart from the strict
and demanding standard applied by the Supreme Court in Toyota
Motor Manufacturing, Kentucky, Inc. v. Williams and by
numerous lower courts.

SEC. 3. CODIFIED FINDINGS.

Section 2(a) of the Americans with Disabilities Act of 1990
(42 U.S.C. 12101) is amended--
(1) by amending paragraph (1) to read as follows:
``(1) physical or mental disabilities in no way diminish a
person's right to fully participate in all aspects of
society, yet many people with physical or mental disabilities
have been precluded from doing so because of discrimination;
others who have a record of a disability or are regarded as
having a disability also have been subjected to
discrimination;''; and
(2) by striking paragraph (7).

SEC. 4. DISABILITY DEFINED AND RULES OF CONSTRUCTION.

(a) Definition of Disability.--Section 3 of the Americans
with Disabilities Act of 1990 (42 U.S.C. 12102) is amended to
read as follows:

``SEC. 3. DEFINITION OF DISABILITY.

[[Page H6060]]

``(D)(i) The 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--
``(I) medication, medical supplies, equipment, or
appliances, low-vision devices (which do not include ordinary
eyeglasses or contact lenses), prosthetics including limbs
and devices, hearing aids and cochlear implants or other
implantable hearing devices, mobility devices, or oxygen
therapy equipment and supplies;
``(II) use of assistive technology;
``(III) reasonable accommodations or auxiliary aids or
services; or
``(IV) learned behavioral or adaptive neurological
modifications.
``(ii) The ameliorative effects of the mitigating measures
of ordinary eyeglasses or contact lenses shall be considered
in determining whether an impairment substantially limits a
major life activity.
``(iii) As used in this subparagraph--
``(I) the term `ordinary eyeglasses or contact lenses'
means lenses that are intended to fully correct visual acuity
or eliminate refractive error; and
``(II) the term `low-vision devices' means devices that
magnify, enhance, or otherwise augment a visual image.''.
(b) Conforming Amendment.--The Americans with Disabilities
Act of 1990 (42 U.S.C. 12101 et seq.) is further amended by
adding after section 3 the following:

``SEC. 4. ADDITIONAL DEFINITIONS.

``As used in this Act:
``(1) Auxiliary aids and services.--The term `auxiliary
aids and services' includes--
``(A) qualified interpreters or other effective methods of
making aurally delivered materials available to individuals
with hearing impairments;
``(B) qualified readers, taped texts, or other effective
methods of making visually delivered materials available to
individuals with visual impairments;
``(C) acquisition or modification of equipment or devices;
and
``(D) other similar services and actions.
``(2) State.--The term `State' means each of the several
States, the District of Columbia, the Commonwealth of Puerto
Rico, Guam, American Samoa, the Virgin Islands, the Trust
Territory of the Pacific Islands, and the Commonwealth of the
Northern Mariana Islands.''
(c) Amendment to the Table of Contents.--The table of
contents contained in section 1(b) of the Americans with
Disabilities Act of 1990 is amended by striking the item
relating to section 3 and inserting the following items:

``Sec. 3. Definition of disability.
``Sec. 4. Additional definitions.''.

SEC. 5. DISCRIMINATION ON THE BASIS OF DISABILITY.

(a) 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 ``with a disability
because of the disability of such individual'' and inserting
``on the basis of disability''; and
(2) in subsection (b) in the matter preceding paragraph
(1), by striking ``discriminate'' and inserting
``discriminate against a qualified individual on the basis of
disability''.
(b) Qualification Standards and Tests Related to
Uncorrected Vision.--Section 103 of the Americans with
Disabilities Act of 1990 (42 U.S.C. 12113) is amended by
redesignating subsections (c) and (d) as subsections (d) and
(e), respectively, and inserting after subsection (b) the
following new subsection:
``(c) Qualification Standards and Tests Related to
Uncorrected Vision.--Notwithstanding section 3(5)(D)(ii), a
covered entity shall not use qualification standards,
employment tests, or other selection criteria based on an
individual's uncorrected vision unless the standard, test, or
other selection criteria, as used by the covered entity, is
shown to be job-related for the position in question and
consistent with business necessity.''.
(c) Conforming Amendment.--Section 101(8) of the Americans
with Disabilities Act of 1990 (42 U.S.C. 12111(8)) is
amended--
(1) in the paragraph heading, by striking ``with a
disability''; and
(2) by striking ``with a disability'' after ``individual''
both places it appears.

SEC. 6. RULES OF CONSTRUCTION.

Title V of the Americans with Disabilities Act of 1990 (42
U.S.C. 12201) is amended--
(1) by adding at the end of section 501 the following:
``(e) Benefits Under State Worker's Compensation Laws.--
Nothing in this Act alters the standards for determining
eligibility for benefits under State worker's compensation
laws or under State and Federal disability benefit programs.
``(f) Claims of No Disability.--Nothing in this Act shall
provide the basis for a claim by a person without a
disability that he or she was subject to discrimination
because of his or her lack of disability.
``(g) Reasonable Accommodations and Modifications.--A
covered entity under title I, a public entity under title II,
and any person who owns, leases (or leases to), or operates a
place of public accommodation under title III, need not
provide a reasonable accommodation or a reasonable
modification to policies, practices, or procedures to an
individual who meets the definition of disability in section
3(1) solely under subparagraph (C).'';
(2) by redesignating section 506 through 514 as sections
507 through 515, respectively, and adding after section 505
the following:

``SEC. 506. RULE OF CONSTRUCTION REGARDING REGULATORY
AUTHORITY.

``The authority to issue regulations granted to the Equal
Employment Opportunity Commission, the Attorney General, and
the Secretary of Transportation under this Act includes the
authority to issue regulations implementing the definitions
contained in sections 3 and 4.''; and
(3) in the table of contents contained in section 1(b), by
redesignating the items relating to sections 506 through 514
as sections 507 through 515, respectively, and by inserting
after the item relating to section 505 the following new
item:

``Sec. 506. Rule of construction regarding regulatory authority.''.

SEC. 7. CONFORMING AMENDMENTS.

Section 7 of the Rehabilitation Act of 1973 (29 U.S.C. 705)
is amended--
(1) in paragraph (9)(B), by striking ``a physical'' and all
that follows through ``major life activities'', and inserting
``the meaning given it in section 3 of the Americans with
Disabilities Act of 1990''; and
(2) in paragraph (20)(B), by striking ``any person who''
and all that follows through the period at the end, and
inserting ``any person who has a disability as defined in
section 3 of the Americans with Disabilities Act of 1990.''.

SEC. 8. EFFECTIVE DATE.

This Act and the amendments made by this Act shall become
effective on January 1, 2009.

SECTION 1. SHORT TITLE.

This Act may be cited as the ``ADA Amendments Act of
2008''.

SEC. 2. FINDINGS AND PURPOSES.

SEC. 3. CODIFIED FINDINGS.

Section 2(a) of the Americans with Disabilities Act of 1990
(42 U.S.C. 12101) is amended--
(1) by amending paragraph (1) to read as follows:
``(1) physical or mental disabilities in no way diminish a
person's right to fully participate in all aspects of
society, yet many people with physical or mental disabilities
have been precluded from doing so because of discrimination;
others who have a record of a disability or are regarded as
having a disability also have been subjected to
discrimination;''; and
(2) by striking paragraph (7).

[[Page H6061]]

SEC. 4. DISABILITY DEFINED AND RULES OF CONSTRUCTION.

(a) Definition of Disability.--Section 3 of the Americans
with Disabilities Act of 1990 (42 U.S.C. 12102) is amended to
read as follows:

``SEC. 3. DEFINITION OF DISABILITY.

``As used in this Act:
``(1) Disability.--The term `disability' means, with
respect to an individual--
``(A) a physical or mental impairment that substantially
limits one or more major life activities of such individual;
``(B) a record of such an impairment; or
``(C) being regarded as having such an impairment (as
described in paragraph (4)).
``(2) Substantially limits.--The term `substantially
limits' means materially restricts.
``(3) Major life activities.--
``(A) In general.--For purposes of paragraph (1), major
life activities include, but are not limited to, caring for
oneself, performing manual tasks, seeing, hearing, eating,
sleeping, walking, standing, lifting, bending, speaking,
breathing, learning, reading, concentrating, thinking,
communicating and working.
``(B) Major bodily functions.--For purposes of paragraph
(1), a major life activity 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.
``(4) Regarded as having such an impairment.--For purposes
of paragraph (1)(C):
``(A) An individual meets the requirement of `being
regarded as having such an impairment' if the individual
establishes that he or she has been subjected to an action
prohibited under this Act because of an actual or perceived
physical or mental impairment whether or not the impairment
limits or is perceived to limit a major life activity.
``(B) Paragraph (1)(C) shall not apply to impairments that
are transitory and minor. A transitory impairment is an
impairment with an actual or expected duration of 6 months or
less.
``(5) Rules of construction regarding the definition of
disability.--The definition of `disability' in paragraph (1)
shall be construed in accordance with the following:
``(A) To achieve the remedial purposes of this Act, the
definition of `disability' in paragraph (1) shall be
construed broadly.
``(B) An impairment that substantially limits one major
life activity need not limit other major life activities in
order to be considered a disability.
``(C) An impairment that is episodic or in remission is a
disability if it would substantially limit a major life
activity when active.
``(D)(i) The 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--
``(I) medication, medical supplies, equipment, or
appliances, low-vision devices (which do not include ordinary
eyeglasses or contact lenses), prosthetics including limbs
and devices, hearing aids and cochlear implants or other
implantable hearing devices, mobility devices, or oxygen
therapy equipment and supplies;
``(II) use of assistive technology;
``(III) reasonable accommodations or auxiliary aids or
services; or
``(IV) learned behavioral or adaptive neurological
modifications.
``(ii) The ameliorative effects of the mitigating measures
of ordinary eyeglasses or contact lenses shall be considered
in determining whether an impairment substantially limits a
major life activity.
``(iii) As used in this subparagraph--
``(I) the term `ordinary eyeglasses or contact lenses'
means lenses that are intended to fully correct visual acuity
or eliminate refractive error; and
``(II) the term `low-vision devices' means devices that
magnify, enhance, or otherwise augment a visual image.''.
(b) Conforming Amendment.--The Americans with Disabilities
Act of 1990 (42 U.S.C. 12101 et seq.) is further amended by
adding after section 3 the following:

``SEC. 4. ADDITIONAL DEFINITIONS.

``As used in this Act:
``(1) Auxiliary aids and services.--The term `auxiliary
aids and services' includes--
``(A) qualified interpreters or other effective methods of
making aurally delivered materials available to individuals
with hearing impairments;
``(B) qualified readers, taped texts, or other effective
methods of making visually delivered materials available to
individuals with visual impairments;
``(C) acquisition or modification of equipment or devices;
and
``(D) other similar services and actions.
``(2) State.--The term `State' means each of the several
States, the District of Columbia, the Commonwealth of Puerto
Rico, Guam, American Samoa, the Virgin Islands, the Trust
Territory of the Pacific Islands, and the Commonwealth of the
Northern Mariana Islands.''.
(c) Amendment to the Table of Contents.--The table of
contents contained in section 1(b) of the Americans with
Disabilities Act of 1990 is amended by striking the item
relating to section 3 and inserting the following items:

``Sec. 3. Definition of disability.
``Sec. 4. Additional definitions.''.

SEC. 5. DISCRIMINATION ON THE BASIS OF DISABILITY.

SEC. 6. RULES OF CONSTRUCTION.

Title V of the Americans with Disabilities Act of 1990 (42
U.S.C. 12201) is amended--
(1) by adding at the end of section 501 the following:
``(e) Benefits Under State Worker's Compensation Laws.--
Nothing in this Act alters the standards for determining
eligibility for benefits under State worker's compensation
laws or under State and Federal disability benefit programs.
``(f) Claims of No Disability..--Nothing in this Act shall
provide the basis for a claim by a person without a
disability that he or she was subject to discrimination
because of his or her lack of disability.
``(g) Reasonable Accommodations and Modifications.--A
covered entity under title I, a public entity under title II,
and any person who owns, leases (or leases to), or operates a
place of public accommodation under title III, need not
provide a reasonable accommodation or a reasonable
modification to policies, practices, or procedures to an
individual who meets the definition of disability in section
3(1) solely under subparagraph (C).'';
(2) by redesignating sections 506 through 514 as sections
507 through 515, respectively, and adding after section 505
the following:

``SEC. 506. RULE OF CONSTRUCTION REGARDING REGULATORY
AUTHORITY.

``Sec. 506. Rule of construction regarding regulatory authority.''.

SEC. 7. CONFORMING AMENDMENTS.

SEC. 8. EFFECTIVE DATE.

This Act and the amendments made by this Act shall become
effective on January 1, 2009.

The SPEAKER pro tempore. Debate shall not exceed 1 hour, with 40
minutes equally divided and controlled by the chairman and ranking
minority member of the Committee on Education and Labor, and 20 minutes
equally divided and controlled by the chairman and ranking minority
member of the Committee on the Judiciary.
The gentleman from California (Mr. George Miller) and the gentleman
from California (Mr. McKeon) each will control 20 minutes, and the
gentleman from Michigan (Mr. Conyers) and the gentleman from Wisconsin
(Mr. Sensenbrenner) each will control 10 minutes.
The Chair recognizes the gentleman from California (Mr. George
Miller).

General Leave

Mr. GEORGE MILLER of California. Madam Speaker, I ask unanimous
consent for all Members to have 5 legislative days in which to revise
and extend their remarks and include extraneous material on H.R. 3195.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from California?

[[Page H6062]]

There was no objection.
Mr. GEORGE MILLER of California. Madam Speaker, I yield myself such
time as I may consume.
Madam Speaker, I rise today in support of H.R. 3195, the Americans
with Disabilities Act Amendments Act of 2008.
Since 1990, the Americans with Disabilities Act has made it possible
for millions of productive, hardworking Americans to participate in our
Nation's economy. Among other rights, the law guaranteed that workers
with disabilities would be judged on their merits, not on their
employer's prejudices.
But since the ADA's enactment, several Supreme Court rulings have
dramatically reduced the number of workers with disabilities who are
protected from discrimination under the law. Workers with diabetes,
cancer, epilepsy, the very workers for whom the Americans with
Disabilities Act was intended to protect, can be legally fired or
passed over for promotion just because of their disability.
In January, the Education and Labor Committee heard testimony from
Carey McClure. Although he was diagnosed with muscular dystrophy at age
15, Carey had been working as an electrician for more than 20 years.
Like so many other Americans with disabilities, Carey was able to find
his way to successfully perform his job and all of life's daily tasks
despite his disability.
Carey received an initial job offer from General Motors pending a
physical. During the physical, the doctor asked Carey to hold his arms
above his head. Carey could not. The doctor asked how he would perform
his job if it required reaching over his head. Carey gave a commonsense
answer: he would use a ladder. When General Motors learned that Carey
had a disability, it rescinded the job offer. Carey challenged General
Motors' decision because he thought the Americans with Disabilities Act
would protect him. He was wrong. The court ruled that, since Carey had
adapted to his condition by modifying the way he performed everyday
tasks, like washing his hair, he was not disabled; and, therefore, was
not protected by the Americans with Disabilities Act.
Because of Supreme Court rulings, Carey and many others are now
caught in a legal Catch-22. The court has determined that, for
individuals whose disabilities do not ``prevent or severely restrict''
major life activities and for those who mitigate their impairments
through means such as hearings aids or with medications, they should
not be considered disabled.
In other words, an employer could fire or refuse to hire a fully
qualified worker simply on the basis of his or her disability, while
maintaining in court that the worker was not ``disabled enough'' to
qualify for protection under the law.
H.R. 3195, the legislation before us today, a bipartisan legislation,
was introduced by Majority Leader Hoyer and Congressman Jim
Sensenbrenner, and it remedies this problem. The bill reverses the
flawed court decision and restores the original congressional intent of
the Americans with Disabilities Act.
H.R. 3195 clarifies the definition of a ``disability,'' ensuring that
anyone with a physical or with a mental impairment that materially
restricts a major life activity is covered under ADA.
In 2004, workers with disabilities lost 97 percent of the employment
cases that went to trial. There has been no balance in the courts,
putting workers at a distinct disadvantage. Too often, these cases have
turned solely on the question of whether someone is an individual with
a disability; too rarely have courts considered the merits of the
discrimination claim itself.
H.R. 3195 stops the erosion of civil rights protections for people
with disabilities while maintaining a reasonable solution supported by
the business community.
The U.S. Chamber of Commerce states that H.R. 3195 ``represents a
balanced approach to ensure appropriate coverage under ADA.''
The Human Resource Policy Association, whose members employ 12
percent of the U.S. private-sector workforce, also supports the bill.
The organization says that the ADA amendment ``would maintain the
functionality of the workplace while providing important protections to
individuals with disabilities.''
H.R. 3195 makes it clear that the Americans with Disabilities Act
protects anyone who faces discrimination on the basis of disability and
that Congress intended the law to be constructed broadly.
Many of our Nation's injured veterans returning from the battlefield
will also need the protections guaranteed by the ADA. When injured
soldiers return to civilian life, whether they go back to a job or to
school, they should not be subject to discrimination. This legislation
will ensure that they will not have to fight another battle, this time
for their economic livelihood.
The Supreme Court rulings have also reduced protections for students
with disabilities. The ADA Amendments Act ensures that students with
physical and mental impairments will be free from discrimination and
that they will have access to the accommodations and to the
modifications they need to successfully pursue an education.
This legislation has broad support: Democrats and Republicans,
businesses and advocates for individuals with disabilities. I am
pleased we were able to work together to get to this point.
It is time to restore the original intent of the ADA and to ensure
that the tens of millions of Americans with disabilities who want to
work and to attend school and to participate in our communities will
have the chance to do so. I urge my colleagues to support this
legislation.
Again, I would like to give a special thanks to Majority Leader Hoyer
of Maryland and to Representative Jim Sensenbrenner of Wisconsin for
their outstanding efforts on behalf of the Members of this House during
these negotiations, to bring those negotiations between the civil
rights community, the disabilities community, and the employer
community to a successful conclusion, which is embodied in this
legislation today.
I reserve the balance of my time.
Mr. McKEON. Madam Speaker, I yield myself such time as I may consume.
I want to associate myself with the remarks that Chairman Miller just
made of thanking Leader Hoyer and Mr. Sensenbrenner for the work that
they began in the last Congress and persevered to bring us to this
point today.
The Americans with Disabilities Act was enacted in 1990 with broad
bipartisan support. Among the bill's most important purposes was the
protecting of individuals with disabilities from discrimination in the
workplace.
By many measures, the law has been a success. I firmly believe that
the employer community has taken the ADA to heart with businesses
adopting policies specifically aimed at providing meaningful
opportunities to individuals with disabilities.
However, despite the law's many success stories, it is clear today
that, for some, the ADA is failing to live up to its promise. For
example, the Education and Labor Committee heard testimony earlier this
year from individuals who, I would stipulate, were intended to be
covered under the original ADA. But in a perverse fashion, someone who
was able to treat the effects of his or her disability through
medication or technology was left without protection because they
weren't ``disabled'' enough.
I don't think that is what the authors of the original ADA intended.
I don't believe it is what we intend today, and I am glad that the bill
before us addresses and corrects this issue.
Madam Speaker, we are here today because some individuals have been
left outside the scope of the act's protections by court cases and by
narrow interpretations of the law. Still, others have sought to
massively expand the law's protections, an equally dangerous
proposition.
Our task with this legislation is to focus relief where it is needed,
while still maintaining the delicate balance embodied in the original
ADA.
In the months since this bill was first introduced, I am pleased to
say we were able to do so. Because the ADA extends its protections to
so many facets of American life, there were four separate committees
with the responsibility for moving the process forward. Equally
important, this compromise was forged with representatives of many of
the stakeholders who will be

[[Page H6063]]

affected by this bill. It was truly a process of give-and-take.
For instance, even as we work to ensure the law's protections are
extended to some who are currently excluded, such as those I mentioned
earlier who were wrongly considered to be not ``disabled enough,'' we
define that expansion cautiously. Through the carefully crafted
language of the bill, we will ensure, for example, that someone is not
``disabled'' under the ADA simply because he or she wears eyeglasses or
contact lenses. That's an important limitation, and it is necessary to
maintaining the intent and integrity of the ADA.
Also importantly, this version of the legislation maintains a
requirement of the ADA, which is that, to be considered a disability, a
physical or a mental impairment must ``substantially limit'' an
individual.
As introduced, H.R. 3195 threatened to gut any meaningful limitation
on the ADA by simply calling any impairment, no matter how trivial or
minor, a disability. That was not the intent of Congress in 1990, nor
should it be today.
Madam Speaker, I support this bill, not because I think it is perfect
but because I think it represents our best efforts to ensure that
meaningful relief will be extended to those most in need, while the
ADA's careful balance is maintained as fully as possible.
In recognition of that achievement, let me simply thank my colleagues
on both sides of the aisle for honoring our shared commitment to work
together on this issue that has the potential to touch the lives of
millions of Americans. And I also want to thank all of the people who
worked so hard--the members of the community most affected by this--and
thank them for their efforts and patience in working with us.
I reserve the balance of my time.
Mr. GEORGE MILLER of California. Madam Speaker, I yield 3 minutes to
the gentleman from Rhode Island (Mr. Langevin).
(Mr. LANGEVIN asked and was given permission to revise and extend his
remarks.)
Mr. LANGEVIN. Madam Speaker, I rise in strong support of the ADA
Amendments Act, and I thank the gentleman for yielding. I want to
recognize the fact that this act is championed by my good friend and
colleague from Maryland, Majority Leader Steny Hoyer.

{time} 1630

This crucial legislation would not have been possible without his
leadership and that of Mr. Sensenbrenner and so many of my other
colleagues, and I thank all of them for their tireless efforts to
ensure the continued inclusion and protection of people with
disabilities in our society.
I would also like to extend my gratitude to all of the advocates of
disability and business communities who have united behind this
important cause and worked diligently with Members of Congress to
ensure a fair and strong compromise.
The American Disabilities Act, or ADA, was truly one of the most
significant pieces of civil rights legislation of the 20th century. As
someone who has lived with the challenges of a disability both before
and after the ADA's enactment in 1990, I have experienced firsthand the
profound transformation this law has created in our society.
I remember well what it was like before the passage of the ADA and
where accommodations were seen as personal courtesies or privileges as
opposed to a civil right. I can remember what it was like coming down
to Washington as a young intern for Senator Pell from Rhode Island and
how challenging it was to find good, reasonable public accommodations.
And I remember what it was like in Rhode Island before the ADA was
passed in terms of voting, and I was not able to vote independently on
my own. I had to have help in the voting machine. And it wasn't until
after the ADA was passed and I became Secretary of State and changed
our election system that it was truly possible to vote independently on
my own.
The ADA has broken down countless barriers and helped millions of
Americans to flourish in their personal and professional lives. It has
also served as a vital tool against discrimination in the workplace and
in public life. Unfortunately, a number of court decisions over the
years have diluted the definition of what constitutes a disability,
effectively limiting the ADA's coverage and excluding from its
protections people with diabetes, epilepsy, muscular dystrophy, and
various developmental disabilities.
The bill before us today reaffirms the protections of the ADA and
renews our promise of equality for every American. The ADA has as its
fundamental goal the inclusion of people in all aspects of society, and
I am very pleased to say that the ADA Amendments Act brings us one step
closer to that goal.
I urge my colleagues to support this bill and send a strong message
that discrimination in any form will never be tolerated in this great
Nation.
Mr. McKEON. Madam Speaker, I reserve the balance of my time.
Mr. GEORGE MILLER of California. I yield 3 minutes to the gentlewoman
from California (Ms. Woolsey).
Ms. WOOLSEY. I would like to thank the chairman for the time and for
this legislation that is bipartisan.
When Congress passed the Americans with Disabilities Act nearly two
decades ago, we did so to ensure that persons with disabilities can
learn, work, and live their lives just like everyone else. People with
disabilities just want the same opportunities as everyone else. And if
their disabilities can be reasonably accommodated, we must make it
possible and make sure that they are given the chance to do so.
By saying that people with disabilities who use medication or
prosthetics to manage their disabilities are no longer considered
disabled under the ADA Act, the courts have prevented many with
disabilities from receiving the protections Congress intended for them.
H.R. 3195, the ADA Amendments Act, would ensure that the ADA protects
all people with disabilities from workplace discrimination by
clarifying the definition of discrimination. This bill further
clarifies that individuals who are able to manage their disabilities
enough to participate in major life activities, like holding a job,
should still be entitled to protections from discrimination.
The ADA was passed to ensure that all people with disabilities have
equal access and opportunities, and it's time that we bring back its
original intent. Today we can do that. It's a matter of doing what is
right.
I urge my colleagues to support H.R. 3195, the ADA Amendments Act of
2008.
Mr. McKEON. Madam Speaker, I continue to reserve.
Mr. GEORGE MILLER of California. Madam Speaker, I yield 3 minutes to
the gentleman from New Jersey (Mr. Andrews), a member of the committee.
(Mr. ANDREWS asked and was given permission to revise and extend his
remarks.)
Mr. ANDREWS. I thank my chairman for yielding.
I would like to thank and congratulate him and Mr. McKeon and Mr.
Sensenbrenner and others for their hard work on this. Mr. Hoyer in
particular.
Words have meaning. And when the original Americans with Disabilities
Act was enacted, the word ``disability'' had a commonsense meaning. It
meant if someone had a substantial impairment, mentally or physically,
that would interfere with their ability to do something important, that
was a disability. I think a hundred of Americans, if you stopped them
on the street and asked them if they agreed with that, they would say
``yes.'' Unfortunately, not enough of those Americans served on the
United States Supreme Court, and we wound up with a tortured rendition
of the definition of ``disability'' where people that we clearly would
think were disabled were excluded from the protections of this law.
The authors of this bill worked long and hard to clear up that
confusion and strike the right balance between the opportunities of
Americans with disabilities and a fair set of ground rules for
employers and other institutions in our society. I believe this
legislation clearly strikes the right balance.
Something else is very important, too. It liberates the talents of
people who have been heretofore kept out of the workplace and out of
other institutions: the person in a wheelchair who might be the best
computer programmer, the blind person who might be the best financial
analyst, the person with tuberculosis who might be the best financial
planner or health care technician. The talents of these individuals
have too often been kept out of the fray.

[[Page H6064]]

This bill will put them back in the fray, put them back on the
playing field and help not only Americans with a disability but all of
us who will benefit from the liberation of their talent.
I congratulate the authors and urge a ``yes'' vote on this necessary
and important piece of legislation.
Mr. McKEON. Madam Speaker, I am happy to yield at this time to the
Republican whip, who was so important in getting this bill here to the
floor, such time as he may consume, the gentleman from Missouri (Mr.
Blunt).
Mr. BLUNT. Madam Speaker, I am grateful to the gentleman for yielding
me the time and the hard work he and Mr. Sensenbrenner have done to
bring this bill to this point.
Certainly, this bill does a lot to restore the original intention of
the Congress as to what the Congress had hoped at the time that the
Americans with Disabilities Act would be. I am pleased to be a
cosponsor of the bill that's on the floor today. I think it strikes the
right balance between protection for individuals with disabilities and
the obligations of the requirements of employers themselves.
Ultimately, that partnership is the partnership that makes the most
of people in the workplace and the skills they bring to the workplace.
This ensures that people with disabilities, whom the Congress intended
to cover by the original Americans with Disabilities Act long before I
came to Congress, are now covered, as I understand it, by these
changes, and that's important. It is better when there is a conflict
between the courts and the Congress for the Congress to come back and
say, ``No, that's not what we meant. This is what we meant, and this is
what we hope to happen in the country.''
This prohibits consideration of mitigating circumstances in the
determination of whether an individual has a disability. Of course, it
continues to allow the normal eyeglasses and contacts and things like
that as an exception in those circumstances.
Most of all, Madam Speaker, this bill puts people to work. This bill
creates opportunity. This bill creates a workplace where the skills
people can bring to the workplace are maximized, not minimized, where
what they add to the total product of America makes America a more
productive country and for them establishes a totally different set of
goals, a set of aspirations, a set of ways that they look at the world
every day and brings their skills in new ways to the workplace.
Madam Speaker, I am pleased to support this bill. I urge my
colleagues to do the same and think that the approach we've taken here
of the Congress itself going back and trying to clarify what the
Congress meant is certainly better than letting the court determine
perpetually what the Congress intended to do.
The SPEAKER pro tempore. The gentleman from California (Mr. George
Miller) has 7 minutes remaining.
Mr. GEORGE MILLER of California. Madam Chairman, does the gentleman
from California have any further speakers?
Mr. McKEON. We have one more. They're not here yet. I reserve my
time.
Mr. GEORGE MILLER of California. If we can reserve our time and let
Judiciary go ahead and start using their time.
The SPEAKER pro tempore. The gentleman from California (Mr. McKeon)
continues to reserve, and the gentleman from California (Mr. George
Miller) continues to reserve.
The Chair recognizes the gentleman from Michigan.
Mr. CONYERS. Thank you, Madam Speaker.
It is a pleasure to join the Education and Labor Committee. I would
like to begin by recognizing the chairman of the Constitution Committee
on Judiciary which held the hearings on the bill in the Judiciary
Committee. I yield, therefore, to the gentleman from New York, Jerry
Nadler, for 3 minutes.
Mr. NADLER. I thank the gentleman.
Madam Speaker, I want to commend the distinguished majority leader
and the gentleman from Wisconsin (Mr. Sensenbrenner) as well as the
chairman of the Judiciary Committee and the chairman of the Education
and Labor Committee for their leadership on this important legislation.
This bill would help to restore the Americans with Disabilities Act
to its rightful place among this Nation's great civil rights laws.
This legislation is long overdue. Countless Americans with
disabilities have already been deprived of the opportunity to prove
that they have been victims of discrimination, that they are qualified
for a job, or that a reasonable accommodation would afford them an
opportunity to participate fully at work and in community life.
This bill fixes the absurd Catch-22 created by the Supreme Court in
which an individual can face discrimination on the basis of an actual
past or perceived disability and yet not be considered sufficiently
disabled to be protected against that discrimination by the ADA. That
was never Congress' intent, and this bill cures this problem.
Some of my colleagues from across the aisle have raised concerns that
this bill might cover minor or trivial conditions. They worry about
covering stomachaches, the common cold, mild seasonal allergies, or
even a hangnail. I have yet to see a case where the ADA covered an
individual with a hangnail. But I have seen scores of cases where the
ADA was construed not to cover individuals with cancer, epilepsy,
diabetes, severe intellectual impairment, HIV, muscular dystrophy, and
multiple sclerosis.
These people have too often been excluded because their impairment,
however serious or debilitating, was mischaracterized by the courts as
temporary or its impact considered too short-lived and not permanent
enough.
That's what happened to Mary Ann Pimental, a nurse with breast cancer
who challenged her employer's failure to rehire her into her position
when she returned from treatment. Ms. Pimental was told by the court
that her cancer was not a disability and that she was not covered by
the ADA. The court recognized that ``there is no question that her
cancer has dramatically affected her life, and that the associated
impairment has been real and extraordinarily difficult for her and her
family.'' Yet the court still denied her coverage because it
characterized the impact of her cancer ``short-lived''--meaning that it
``did not have a substantial lasting effect'' on her.
Mary Ann Pimental died as a result of her breast cancer 4 months
after the court issued its decision. I am sure that her husband and two
children disagreed with the court that her cancer was short-lived and
not sufficiently permanent.
This bill ensures that individuals like Mary Ann Pimental are covered
by the law when they need it. The bill requires the courts--and the
Federal agencies providing expert guidance--to lower the burden for
obtaining coverage under this landmark civil rights law. This new
standard is not onerous and is meant to reduce needless litigation over
the threshold question of coverage.
It is our sincere hope that, with the passage of this bill, we will
finally be able to focus on the important questions: Is an individual
qualified? Might a reasonable accommodation afford that person the same
opportunities that his or her neighbors enjoy?
I therefore urge my colleagues to join me in voting for passage of
H.R. 3195 as reported unanimously by the Judiciary Committee. I thank
everyone associated with its passage.
Madam Speaker, I want to commend the distinguished majority leader
and gentleman from Wisconsin, Mr. Sensenbrenner, for their leadership
on this important legislation.
H.R. 3195 would help to restore the Americans with Disabilities Act
to its rightful place among this Nation's great civil rights laws.
This legislation is necessary to correct Supreme Court decisions that
have created an absurd Catch-22 in which an individual can face
discrimination on the basis of an actual, past, or perceived disability
and yet not be considered sufficiently disabled to be protected against
that discrimination by the ADA. That was never Congress's intent, and
H.R. 3195 cures this problem.
H.R. 3195 lowers the burden of proving that one is disabled enough to
qualify for coverage. It does this by directing courts to read the
definition broadly, as is appropriate for remedial civil rights
legislation. It also redefines the term ``substantially limits,'' which
was restrictively interpreted by the courts to set a demanding standard
for qualifying as disabled. An individual now must show that his or her
impairment ``materially restricts'' performance of major life
activities. While the impact of the impairment must still be important,
it need not severely or significantly restrict one's ability to engage
in those activities central to most people's daily lives, including
working.

[[Page H6065]]

Under this new standard, for example, it should be considered a
material restriction if an individual is disqualified from his or her
job of choice because of an impairment. An individual should not need
to prove that he or she is unable to perform a broad class or range of
jobs. We fully expect that the courts, and the Federal agencies
providing expert guidance, will revisit prior rulings and guidance and
adjust the burden of proving the requisite ``material'' limitation to
qualify for coverage.
This legislation is long overdue. Countless Americans with
disabilities have already been deprived of the opportunity to prove
that they have been victims of discrimination, that they are qualified
for a job, or that a reasonable accommodation would afford them an
opportunity to participate fully at work and in community life.
Some of my colleagues from across the aisle have raised concerns that
this bill would cover ``minor'' or ``trivial'' conditions. They worry
about covering ``stomach aches, the common cold, mild seasonal
allergies, or even a hangnail.''
I have yet to see a case where the ADA covered an individual with a
hangnail. But I have seen scores of cases where the ADA was construed
not to cover individuals with cancer, epilepsy, diabetes, severe
intellectual impairment, HIV, muscular dystrophy, and multiple
sclerosis.
These people have too often been excluded because their impairment,
however serious or debilitating, was mis-characterized by the courts as
temporary, or its impact considered too short-lived and not permanent
enough--although it was serious enough to cost them the job.
That's what happened to Mary Ann Pimental, a nurse who was diagnosed
with breast cancer after being promoted at her job. Mrs. Pimental had a
mastectomy and underwent chemotherapy and radiation therapy. She
suffered radiation burns and premature menopause. She had difficulty
concentrating, and experienced extreme fatigue and shortness of breath.
And when she felt well enough to return to work, she discovered that
her job was gone and the only position available for her was part-time,
with reduced benefits.
When Ms. Pimental challenged her employer's failure to rehire her
into a better position, the court told her that her breast cancer was
not a disability and that she was not covered by the ADA. The court
recognized the ``terrible effect the cancer had upon'' her and even
said that ``there is no question that her cancer has dramatically
affected her life, and that the associated impairment has been real and
extraordinarily difficult for her and her family.''
Yet the court still denied her coverage under the ADA because it
characterized the impact of her cancer as ``short-lived''--meaning that
it ``did not have a substantial and lasting effect'' on her.
Mary Ann Pimental died as a result of her breast cancer 4 months
after the court issued its decision. I am sure that her husband and two
children disagree with the court's characterization of her cancer as
``short-lived,'' and not sufficiently permanent.
This House should also disagree--and does--as is shown by the broad
bipartisan support for H.R. 3195.
H.R. 3195 ensures that individuals like Mary Ann Pimental are covered
by the law when they need it. It directs the courts to interpret the
definition of disability broadly, as is appropriate for remedial civil
rights legislation. H.R. 3195 requires the courts--and the Federal
agencies providing expert guidance--to lower the burden for obtaining
coverage under this landmark civil rights law. This new standard is not
onerous, and is meant to reduce needless litigation over the threshold
question of coverage.
It is our sincere hope that, with less battling over who is or is not
disabled, we will finally be able to focus on the important questions--
is an individual qualified? And might a reasonable accommodation afford
that person the same opportunities that his or her neighbors enjoy.
I urge my colleagues to join me in voting for passage of H.R. 3195,
as reported unanimously by the House Judiciary Committee.

{time} 1645

Mr. SENSENBRENNER. Madam Speaker, I yield myself such time as I may
consume.
Madam Speaker, 18 years have passed since President George H.W. Bush
signed the Americans with Disabilities Act into law. While that bill
struck down many barriers affecting disabled Americans, its potential
has yet to be realized. This is due to a number of Supreme Court
decisions that have restricted ADA coverage for people suffering from
illnesses such as diabetes, epilepsy, and cancer, to name a few. Today,
this House takes the first step to finally secure the full promise of
the original bill.
The bill that the House is voting on this afternoon has undergone a
number of changes since I first introduced it in the 109th Congress.
Today's ADA Amendments Act of 2008 is a compromise that has the support
of a broad and balanced coalition. Business groups such as the U.S.
Chamber of Commerce, the HR Policy Association, and the National
Association of Manufacturers all back this bill. In addition, advocates
for the disability community, including the American Association of
People with Disabilities, the Epilepsy Foundation, and the National
Disability Rights Network, join in support.
Majority Leader Hoyer and I introduced the ADA Restoration Act last
summer. We did so to enable disabled Americans utilizing the ADA to
focus on the discrimination that they have experienced rather than
having to first prove that they fall within the scope of the ADA's
protection. Today's bill makes it clear that Congress intended the
ADA's coverage to be broad and to cover anyone who faces unfair
discrimination because of a disability. To that end, we are submitting
for the Record a statement outlining our legal intent and analysis of
the new definition, as changed by the ADA Amendments Act of 2008.
The ADA Amendments Act makes changes to the original ADA, the primary
one being that it will be easier for people with disabilities to
qualify for protection under the ADA. This is done by establishing that
the definition of disability is to be interpreted broadly. Another
important change clarifies that the ameliorative efforts of mitigating
measures are not to be considered in determining whether a person has a
disability. This provision eliminates the Catch-22 that currently
exists, as described by the gentleman from New York (Mr. Nadler), where
individuals subjected to discrimination on the basis of their
disabilities are unable to invoke the ADA's protections because they
are not considered people with disabilities when the effects of their
medication or other interventions are considered.
It is important to note that this bill is not one-sided. It is a fair
product that is workable for employers and businesses. The bill
contains the requirement that an impairment be defined as one that
substantially limits a major life activity in order to be considered a
disability. There is also an exception in the mitigating measures
provision for ordinary eyeglasses and contact lenses. Further, the bill
excludes from coverage impairments that are transitory and minor.
The ADA has been one of the most effective civil rights laws passed
by Congress. Its continued effectiveness is paramount to ensuring that
the transformation that our Nation has undergone and continues in the
future and that the guarantees and promises on which this country was
established continue to be recognized on behalf of all of its citizens.
I appreciate Majority Leader Hoyer's efforts to bring the ADA
Amendments Act to the floor, and I encourage my colleagues to vote in
favor of it.
Finally, I'd like to pay tribute to my wife, Cheryl, who is the
national chairman of the board of the American Association for People
with Disabilities. Her tireless efforts have really spread the word
amongst many Members of this House and a few of the other body that
this legislation is necessary so that people like her do not have
barriers in terms of seeking employment. And I appreciate, also, my
colleagues on both sides of the aisle listening to her, even when they
didn't have a choice.
I reserve the balance of my time.
Mr. CONYERS. Madam Speaker, I am pleased to recognize the
distinguished majority leader, who was an original sponsor of the bill
some 18 years ago, for 1 minute.
Mr. HOYER. I thank the distinguished chairman of the Judiciary
Committee for yielding, and I thank him for his efforts.
I want to thank his staff, as well, who have been extraordinary.
Heather, in particular, has had her virtues regaled by Dr. Abouchar of
my staff, and I thank her.
I want to thank Jim Sensenbrenner. I want to thank Cheryl, as well,
who has been an extraordinary help on the Americans with Disabilities
Act and with this Restoration Act. She has been a giant in her
leadership. And I

[[Page H6066]]

want to thank Jim Sensenbrenner, with whom I've worked now for many
years on this issue, and he has been, of course, a giant, as chairman
of the Judiciary Committee in years past and one of the senior Members
of this House, extraordinarily helpful and a partner in this effort.
I also want to thank Buck McKeon, the ranking member. At the time we
testified, he said, you know, we want to see this pass but we want to
work together and make sure we can all be for it. And I assured him
that we would do that, and I was pleased today that he said, in fact,
we had done that. And I think the result that we will see in the vote
will show that clearly. And I thank him for his work and effort and
good faith in working towards a bill that we could all support.
I want to thank George Miller, the chairman of the Education and
Labor Committee, whose committee had primary jurisdiction over this
bill, for his efforts in assuring that this bill moves forward.
Madam Speaker, I would like to submit for the Record a list of
people, particularly in the disabilities community and also in the
business community, who spent countless hours, days, weeks and, yes,
even months trying to come to an agreement on a bill that both the
business community and the disability community would feel comfortable
with. We have accomplished that, but it was the work of these people as
well who did that, and I would submit this at this time in the Record
to thank them for their efforts and their success which they are so
responsible for today.

People to Recognize

Chai Feldblum, Georgetown University; Former U.S. Rep. Tony
Coelho; Former U.S. Rep. Steve Bartlett; Sandy Finucane,
Epilepsy Foundation; Andy Imparato, American Association of
People with Disabilities; Randy Johnson, Mike Eastman, U.S.
Chamber of Commerce; John Lancaster, National Council on
Independent Living; Mike Peterson, HR Policy Association;
Curt Decker, National Disability Rights Network;
Jeri Gillespie, Ryan Modlin, National Association of
Manufacturers; Nancy Zirkin, Lisa Borenstein, Leadership
Conference on Civil Rights; Mike Aitken, Mike Layman, Society
for Human Resource Management; Abby Bownas, American Diabetes
Association; Jennifer Mathis, Bazelon Center for Mental
Health Law; Kevin Barry, Georgetown University; Jim Flug,
Georgetown University; Claudia Center, Employment Law Center;
Shereen Arent, American Diabetes Association; Brian East,
Advocacy Inc.
Madam Speaker, 18 years ago next month, the first President Bush
signed into law one of the most consequential pieces of civil rights
legislation in recent memory, in over a quarter of a century in fact.
In the ceremony on the south lawn of the White House President Bush
said this:
``With today's signing of the landmark Americans with Disabilities
Act, every man, woman, and child with a disability can now pass through
once-closed doors into a bright new era of equality, independence, and
freedom.''
In large measure, President Bush was right. Those doors have, in
fact, come open. Tens of millions of Americans with disabilities now
enjoy rights the rest of us have long taken for granted: The right to
use the same streets, theaters, restrooms, or offices; the right to
prove themselves in the workplace, to succeed on their talent and drive
alone.
We all understand why there are cuts in the sidewalk at every street
corner, kneeling buses on our city streets, elevators on the Metro,
ramps at movie theaters, and accessible restrooms and handicapped
parking almost everywhere. By now, they have become part of our lives'
fabric. And we wouldn't have it, I think, any other way, because each
one is the sign of a pledge, the promise of an America that excludes
none of its people from our shared life and opportunities.
That was the promise of the ADA. That was the promise of the ADA that
President George Bush signed on July 26, 1990. But looking back 18
years, the hard truth is that we were, in some ways, perhaps too
optimistic.
The door President Bush spoke of is still not entirely open, and
every year, millions of us are caught on the wrong side. In
interpreting the law over these 18 years, the courts have consistently
chipped away at Congress' very clear intent, and I know what the intent
was because I was there as so many of you were.
I know that many of my colleagues were as well, and I know that they
share my disappointment in a series of narrow rulings that have had the
effect of excluding millions of Americans from the law's protection for
no good reason. We said we wanted broad coverage for people with
disabilities and people regarded as disabled, but the courts narrowed
that coverage with a ``strict and demanding standard,'' a severely
restrictive measure that virtually excluded entire classes of people,
even though we had specifically mentioned their impairments as objects
of the law's protections.
Civil rights acts have historically been urged to be interpreted
liberally to accomplish their objective of protecting the rights of
individuals. Unfortunately, in this instance, the courts did not follow
that premise.
We never expected that people with disabilities who worked to
mitigate their conditions would have their efforts held against them.
Imagine, somebody with epilepsy who takes medication to preclude
seizures would be told that we're not going to hire you because you
have epilepsy, but then be told by the court that that was not
discrimination because prescription drugs mitigated the ability or the
disability that you had. No one on this floor would have thought in
their wildest assertions that that would be an interpretation.
The courts did exactly that, however, throwing their cases out on the
grounds that they were no longer disabled enough to suffer
discrimination. The discrimination, of course, was determining that
somebody had epilepsy, and notwithstanding their ability to perform the
job in question, that they would not be hired. That is the essence of
discrimination.
That is what we sought to preclude, and I want to again congratulate
the business community and the disabilities community for coming
together on legislation that will right that misinterpretation because
none of what has been held was our intent.
We are here today because a truly wide coalition--members of the
disability community ready to claim their equal share, Members of both
parties who were tired of seeing constituents shut out, and business
groups eager to unlock new pools of talent--an alliance as broad as the
one that joined forces to pass the original ADA, has come together to
help the courts get this right. I know some of them are watching, and I
want to thank them, through my colleagues and through the Speaker, for
their efforts.
With the ADA Amendments Act, we make it clear today that a cramped
reading of disability rights will be replaced with a definition that is
broad and fair--fair to the disability community and fair to the
business community--that those who manage to mitigate their
disabilities are still subject to discrimination and still entitled to
redress, and that those regarded as having disability are equally at
risk and deserve to be equally protected.
I am proud, Madam Speaker, to have worked for so long with my
colleague Jim Sensenbrenner, as I said earlier. He has been a leader in
advancing this legislation, and we've joined together to submit for the
Record a legal analysis of the bill that we've worked so hard to bring
to fruition.
And I want to thank my good friend, former Congressman Tony Coelho
for originally enlisting me in this effort. Very frankly, Tony is one
of my very close friends, and when he left the Congress, the ADA had
not yet been accomplished. But it was his leadership that got it to the
point where, in fact, we could proceed, and he gave me the
responsibility of ensuring its passage. Working with George Miller and
John Conyers and Jim Oberstar and so many others, we were able to
accomplish that objective. But Tony Coelho was our leader on this
effort, and very frankly, Madam Speaker, our former whip remains our
leader today.
Finally, it is my honor to dedicate this bill to the late Justin
Dart, the pioneering disability advocate and inspiration behind the
ADA, as well as to his wife, Yoshiko Dart.
Madam Speaker, few kinds of discrimination, in all of our history,
have been more widespread than the exclusion of those with
disabilities. But it was America, America that passed a pioneering law
to help end that exclusion. We were the first in the world to do so.

[[Page H6067]]

{time} 1700

We were the world's model on this central challenge to human rights.
Eighteen years later, we cannot afford to fall behind.
Let us pass this bill and bring us one step closer to the days when
the fruits of life in America are at last available to all.
Mr. GEORGE MILLER of California. Will the gentleman yield?
Mr. HOYER. I will yield to my friend.
Mr. GEORGE MILLER of California. I thank the gentleman for yielding,
and certainly thank him for all his leadership on this bill. But I want
to thank him on behalf of the Chairs and the ranking members of the two
committees, you and Mr. Sensenbrenner, for the leadership that you both
provided throughout these difficult and visionary negotiations to
restore this act to the place that it should be. I just want to
publicly, on behalf, I think, of everybody in the Congress, thank you
and Mr. Sensenbrenner for your leadership on this.
Mr. HOYER. I thank the chairman on behalf of Mr. Sensenbrenner and
myself, and for all those who have been involved in this effort.

Joint Statement of Representatives Hoyer and Sensenbrenner on the
Origins of the ADA Restoration Act of 2008, H.R. 3195

On September 29, 2006, we introduced H.R. 6258, entitled
the Americans with Disabilities Act Restoration Act of 2006.
This bill was a response to decisions of the Supreme Court
and lower courts narrowing the group of people whom Congress
had intended to protect under the Americans with Disabilities
Act (ADA). The Supreme Court had interpreted the ADA to
impose a ``demanding'' standard for coverage. It had also
held that the ameliorative effects of ``mitigating measures''
that people use to control the effects of their disabilities
must be considered in determining whether a person has an
impairment that substantially limits a major life activity
and is protected by the ADA. This holding was contrary to
Congress's stated intent in several committee reports.
We introduced H.R. 6258, which was designed to reverse
these holdings, at the end of the 2006 legislative session.
We intended this bill to serve as a marker of our intent to
introduce future legislation to address this issue. On July
26, 2007, we introduced similar legislation, H.R. 3195, the
ADA Restoration Act of 2007, which ultimately garnered over
240 cosponsors. A nearly identical bill, S. 1881, was
introduced in the Senate on the same day by Senators Harkin
and Specter.
H.R. 3195 as introduced would have amended the ADA to
provide protection for any individual who had a physical or
mental impairment or a record of such an impairment, or who
was treated as having such an impairment. The purpose of this
legislation was to restore the intent of Congress to cover a
broad group of individuals with disabilities under the ADA
and to eliminate the problem of courts focusing too heavily
on whether individuals were covered by the law rather than on
whether discrimination occurred. The bill as introduced,
however, was seen by many as extending the protections of the
ADA beyond those that Congress originally intended to
provide.
In order to craft a more balanced bill with broad support,
we urged that representatives of the disability and business
communities enter into negotiations to try to reach an
acceptable compromise. We maintained contact with these
communities over the course of their negotiations and
supported them in their efforts to understand the needs and
concerns of each community. After several months of intensive
discussions, negotiators for the two communities reached
consensus on a set of protections for people with
disabilities that garnered broad support from both
communities. These protections would significantly expand the
group of individuals protected by the ADA beyond what the
courts have held, while at the same time ensuring that the
expansion does not extend beyond the original intent of the
ADA.
This compromise formed the basis of the amendment in the
nature of a substitute for H.R. 3195 that was voted out of
the House Education and Labor and Judiciary Committees with
overwhelming support on June 18, 2008. The substitute bill
was reported out of the Education and Labor Committee by a
vote of 43-1, and out of the Judiciary Committee by a vote of
27-0.

The Provisions of the Committee Substitute to H.R. 3195

The primary purpose of H.R. 3195, as amended by the
committee substitute, is to make it easier for people with
disabilities to qualify for protection under the ADA. The
bill does this in several ways. First, it establishes that
the definition of disability must be interpreted broadly to
achieve the remedial purposes of the ADA. The bill rejects
the Supreme Court's holdings that the ADA's definition of
disability must be read ``strictly to create a demanding
standard for qualifying as disabled,'' and that 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'' in order to qualify
for protection. The bill also provides a new definition of
``substantially limits'' to make clear Congress's intent to
depart from the standard applied by the Supreme Court in
Toyota Motor Mfg. of Kentucky, Inc. v. Williams, 534 U.S.
184, 197 (2002), and to apply a lower standard.
Second, the bill provides that the ameliorative effects of
mitigating measures are not to be considered in determining
whether a person has a disability. This provision is intended
to eliminate the catch-22 that exists under current law,
where individuals who are subjected to discrimination on the
basis of their disabilities are frequently unable to invoke
the ADA's protections because they are not considered people
with disabilities when the effects of their medication,
medical supplies, behavioral adaptations, or other
interventions are considered. The one exception to the rule
about mitigating measures is that ordinary eyeglasses and
contact lenses are to be considered in determining whether a
person has a disability. The rationale behind this exclusion
is that the use of ordinary eyeglasses or contact lenses,
without more, is not significant enough to warrant protection
under the ADA.
Third, the bill provides that an impairment that is
episodic or in remission is a disability if it would
substantially limit a major life activity when active. This
provision is intended to reject the reasoning of court
decisions concluding that certain individuals with certain
conditions--such as epilepsy or post traumatic stress
disorder--were not protected by the ADA because their
conditions were episodic or intermittent.
Fourth, the bill provides for broad coverage under the
``regarded as'' prong of the definition of disability. It
clarifies that an individual can establish coverage under the
``regarded as'' prong by establishing that he or she was
subjected to an action prohibited by the ADA because of an
actual or perceived impairment, whether or not the impairment
limits or is perceived to limit a major life activity. This
provision does not apply to impairments that are both
transitory (lasting six months or less) and minor.
The purpose of the broad ``regarded as'' provision is to
reject court decisions that had required an individual to
establish that a covered entity perceived him or her to have
an impairment that substantially limited a major life
activity. This provision is designed to restore Congress's
intent to allow individuals to establish coverage under the
``regarded as'' prong by showing that they were treated
adversely because of an impairment, without having to
establish the covered entity's beliefs concerning the
severity of the impairment.
Impairments that are transitory and minor are excluded from
coverage in order to provide some limit on the reach of the
``regarded as'' prong. The intent of this exception is to
prevent litigation over minor illnesses and injuries, such as
the common cold, that were never meant to be covered by the
ADA.
A similar exception is not necessary for the first two
prongs of the definition of disability as the functional
limitation requirement adequately prevents claims by
individuals with ailments that do not materially restrict a
major life activity. In other words, there is no need for the
transitory and minor exception under the first two prongs
because it is clear from the statute and the legislative
history that a person can only bring a claim if the
impairment substantially limits one or more major life
activities or the individual has a record of an impairment
that substantially limits one or more major life activities.
The bill also provides that a covered entity has no
obligation to provide reasonable accommodations, or
reasonable modifications to policies, practices or
procedures, for an individual who qualifies as a person with
a disability solely under the ``regarded as'' prong. Under
current law, a number of courts have required employers to
provide reasonable accommodations for individuals who are
covered solely under the ``regarded as'' prong.
Fifth, the bill modifies the ADA to conform to the
structure of Title VII and other civil rights laws by
requiring an individual to demonstrate discrimination ``on
the basis of disability'' rather than discrimination
``against an individual with a disability'' because of the
individual's disability. We hope this will be an important
signal to both lawyers and courts to spend less time and
energy on the minutia of an individual's impairment, and more
time and energy on the merits of the case--including whether
discrimination occurred because of the disability, whether an
individual was qualified for a job or eligible for a service,
and whether a reasonable accommodation or modification was
called for under the law.

[[Page H6068]]

In exchange for the enhanced coverage afforded by these
provisions, the bill contains important limitations that will
make the bill workable from the perspective of businesses
that are governed by the law. We have already noted some of
these limitations: there is an exception in the mitigating
measures provision for ordinary eyeglasses and contact
lenses, and the ``regarded as'' provision includes two
important limitations, as described above.
Of key importance, the bill retains the requirement that a
person's impairment must substantially limit a major life
activity in order to be considered a disability.
``Substantially limits'' has been defined as ``materially
restricts'' in order to communicate to the courts that we
believe that their interpretation of ``significantly limits''
was stricter than we had intended. On the severity spectrum,
``materially restricts'' is meant to be less than ``severely
restricts,'' and less than ``significantly restricts,'' but
more serious than a moderate impairment which would be in the
middle of the spectrum.
The key point in establishing this standard is that we
expect this prong of the definition to be used only by people
who are affirmatively seeking reasonable accommodations or
modifications. Any individual who has been discriminated
against because of an impairment--short of being granted a
reasonable accommodation or modification--should be bringing
a claim under the third prong of the definition which will
require no showing with regard to the severity of his or her
impairment. However, for an individual who is asking an
employer or a business to make a reasonable accommodation or
modification, the bill appropriately requires that the
individual demonstrate a level of seriousness of the
impairment--that is, that it materially restricts a major
life activity.
The bill also retains the requirement in Title I of the ADA
that an individual must be ``qualified'' for the position in
question. The original version of H.R. 3195 contained
language which could have been interpreted to alter the
burden-shifting analysis concerning whether an individual is
``qualified'' under the ADA. The substitute bill makes clear
that there was no intent to place a greater burden on the
employer and that the burdens remain the same as under
current law.

Additional Legal Issues

We would like to clarify the intent of the bill with
respect to particular legal issues. First, some higher
education trade associations have raised questions about
whether the bill will eviscerate academic standards. This
bill will have absolutely no effect on the ability of higher
education institutions to set academic standards. It
addresses only the standards for determining who qualifies as
an individual with disability, and not the standards for
determining whether an accommodation or modification is
required in a particular setting or context. It has always
been, and it remains the law today under this bill, that an
academic institution need not make modifications that would
fundamentally alter the essential requirements of a program
of study. The particular concerns of educational institutions
in ensuring that students meet appropriate academic standards
are, of course, relevant in determining whether a requested
modification is reasonable in an educational setting.
There have been particular concerns with the way that
specific learning disabilities have been treated in the
academic context, and that individuals are not receiving
appropriate accommodations. The Education and Labor Committee
Report's discussion of specific learning disabilities is
specifically targeted toward the academic setting and not the
employment sector.
Second, a concern has been raised about whether the bill
changes current law with respect to the duration that is
required for an impairment to substantially limit a major
life activity. The bill makes no change to current law with
respect to this issue. The duration of an impairment is one
factor that is relevant in determining whether the impairment
substantially limits a major life activity. Impairments that
last only for a short period of time are typically not
covered, although they may be covered if sufficiently severe.
Third, some have raised questions about whether the bill's
provisions relating to mitigating measures would require
employers to provide certain mitigating measures as
accommodations. This bill's provisions are intended to
clarify the definition of disability, not to alter current
rules on provision of reasonable accommodations.
Fourth, the bill's language requiring that qualification
standards, employment tests, or other selection criteria
based on uncorrected vision must be job related for the
position in question and consistent with business necessity
is not intended to change current interpretations of whether
a qualification standard based on a government requirement or
regulation is job related for the position in question and
consistent with business necessity.
Passage of the ADA Amendments Act is a great moment in this
country's history. We would like to thank all the individuals
who worked so hard on these negotiations, and to thank the
thousands of individuals and businesses who care about making
this country a fair and equitable place for people with
disabilities.

Mr. SENSENBRENNER. Madam Speaker, I reserve the balance of my time.
Mr. GEORGE MILLER of California. Madam Speaker, I reserve the balance
of my time.
Mr. McKEON. Madam Speaker, might I inquire of the time that we each
have remaining.
The SPEAKER pro tempore. The gentleman from California (Mr. McKeon)
has 13 minutes. The gentleman from California (Mr. George Miller) has 7
minutes. The gentleman from Michigan (Mr. Conyers) has 6 minutes. The
gentleman from Wisconsin (Mr. Sensenbrenner) has 5\1/2\ minutes.
Mr. CONYERS. Madam Speaker, I yield myself as much time as I may
consume.
This measure raises some very interesting questions from the point of
view of the Judiciary Committee. I begin by noting that the chairman
emeritus of the Judiciary Committee, Jim Sensenbrenner, had always had
a very abiding interest in this matter. But we have a curious problem.
Somebody is going to ask, how could a United States Supreme Court--a
bill passed overwhelmingly bipartisan in 1990--and then in 1999
simultaneously give not one or two, but three decisions slamming some
very fundamental interests that we had when the bill was passed? There
wasn't anything complicated or ambiguous about the bill that was passed
in this Congress in 1990. And we are now here fixing the three problems
that these decisions brought forward.
``We prohibit the consideration of measures that might lessen the
impact of an impairment--medication, insulin, a hearing aid.''
What kind of persons are on the Supreme Court of the United States
that have some difficulty understanding that if you have to use a
hearing aid, that does not lessen the nature of the disability? That's
earlier than first year law school. I mean, what was going on in the
majority of the members' minds?
Second, ``substantially limits'' they've transferred to mean
``materially restricts'' and instructs the court that these words must
be interpreted broadly and not restrictively.
Now the history of civil rights and voter rights law in this Congress
in the 20th and 21st century deals with the understood directive that
the law in these cases is to be interpreted generally and liberally,
and here they did just the opposite. This disability law is essentially
a civil rights matter, and they chose to ignore that. And so we had to
correct it. We had to say, Supreme Court, your attention, please. This
is civil rights law, and so it's not to be interpreted as narrowly as
you can, but as liberally as you can.
And then the third thing we chose to correct was the entire notion
that the disability law covers anyone who either experiences
discrimination because someone believes them to be disabled, whether
they are not or whether they actually are. It doesn't make any
difference. In other words, it is to be liberally interpreted.
And so we go into a very challenging period of American history with
an election coming up, and we've got a Supreme Court that we have to
constantly remind how to interpret civil rights laws. This is not a
comforting circumstance for your chairman of Judiciary--I don't think
for the ranking member of Judiciary either, if I might add.
There are those writing about the Supreme Court these days, and one
such commentator, Professor Rosen of Georgetown--``Today, however,
there are no economic populists on the Court, even on the liberal wing.
Ever since John Roberts was appointed Chief Justice in 2005, the Court
has seemed only more receptive to business concerns. Forty percent of
the cases the Court heard last term involved business interests, up
from around 30 percent in recent years.''
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. GEORGE MILLER of California. I yield the gentleman an additional
1 minute.
Mr. CONYERS. I thank the chairman of Education and Labor.
The closing example:
``While the Rehnquist Court heard less than one antitrust decision a
year on average, the Roberts Court has heard seven antitrust cases in
the first two terms, and all of them were decided in favor of the
corporate defendants.''

[[Page H6069]]

Now, look. They must know that some people over here read and review
their decisions. It means that we have to be even more alert on the
questions that have brought this measure before the House today for its
disposal.
I'm very proud of the bipartisan aspect. I don't want to give too
much praise to the chairman emeritus of the committee, but he did a
very good job in this regard.
Mr. McKEON. Madam Speaker, I am happy to yield now to the gentleman
from Delaware, ranking member of the K-12 Education Subcommittee, such
time as he may consume, Mr. Castle.
Mr. CASTLE. I thank the distinguished gentleman from California for
yielding. I do rise today in support of the ADA Amendments Act entitled
H.R. 3195.
Since 1990, the landmark civil rights legislation, the Americans With
Disabilities Act--ADA as we know it--has provided numerous benefits.
Over the last decade, however, people with serious health conditions,
including diabetes, have faced serious difficulties meeting the
definition of ``disability'' following the Supreme Court's decision
that disability must be determined in light of the mitigating measures,
like insulin, that a person uses.
These decisions have created a situation where people with serious
health conditions who use medications and other devices in order to
work are not considered ``disabled enough'' to be protected by the ADA
even when they are explicitly denied employment opportunities because
of that health condition.
Just briefly, I would like to mention Stephen Orr, a pharmacist from
Rapid City, South Dakota, who was fired by his employer for taking
lunch breaks to eat and manage his diabetes. After Stephen lost his
job, he decided to file a claim under the ADA. The employer responded
that Stephen did not have a disability because he was able to manage
his diabetes with insulin and diet. The courts agreed. And this, I'm
afraid, is only one example.
H.R. 3195 will remedy this problem. Passage will secure the promise
of the original ADA and make clear that Congress intended the ADA's
coverage to be broad, to cover anyone who faces unfair discrimination
because of a disability. At the same time, it strikes an appropriate
balance between the needs of individuals with disabilities and those of
employers.
I am pleased that H.R. 3195 enjoys the backing of a broad coalition
of supporters from both the employer and the disability communities. I
am also proud it has bipartisan support here, and I thank and
congratulate all those that had anything to do with putting this
together.
I urge my colleagues on both sides of the aisle to support the
measure.
Mr. McKEON. Mr. Speaker, I recognize now the gentleman from Kansas
(Mr. Moran) for such time as he may consume.
Mr. MORAN of Kansas. Madam Speaker, I thank the gentleman from
California (Mr. McKeon) for yielding me time today, and I rise in
support of H.R. 3195.
In my world, in the way I look at life, all human beings, because
we're created by the same God, are entitled to respect and dignity. In
our framework in our country, our Constitution provides that we are
entitled to certain rights. One of those, as I see it, is the right to
an opportunity to succeed.
So I'm pleased that our country, in 1990, this Congress and the
Senate came together with the passage of the Americans With
Disabilities Act. And I'm pleased today that we are here to restore
certain of those rights that were believed to be there under the ADA
passed in 1990. What this law will do is to require the courts to
interpret this law in a fair manner.
We know that all of us are entitled to an opportunity to succeed. And
I think all of us, as we look at our lives, look just for the chance to
be judged based upon our own performance. We don't want special rights.
We all just want to be gauged by people who judge us by what we do and
how we do it and how well we do it. And so the original law and the
Restoration Act today, as I see it, establishes that premise that we're
all entitled to be judged based upon how we perform our tasks.
I support this legislation and am pleased by what I've heard on the
floor this afternoon by the way it came about. And I appreciate being
here to hear the gentleman from Maryland, the distinguished majority
leader, speak about his sponsorship and authorship of the Americans
with Disabilities Act.
One of my predecessors, Bob Dole, served in that similar capacity.
I'd like to quote my predecessor when he spoke about the ADA and
indicate that I believe that what he said then should be the words of
today as well:
``This historic civil rights legislation seeks to end the unjustified
segregation and exclusion of persons with disabilities from the
mainstream of American life. The ADA is fair and balanced legislation
that carefully blends the rights of people with disabilities with the
legitimate needs of the American business community.''
Madam Speaker, I believe that's what the legislation before us does
today, and again confirms the right that we all have to be judged based
upon our ability to perform.
Mr. McKEON. Madam Speaker, I yield myself the balance of my time.
There are so many individuals who deserve credit for bringing us to
this point today. I want to recognize Chairman Miller, the leaders of
the Judiciary, Transportation and Infrastructure, Energy and Commerce
Committees, and all of our staffs on all of those committees on both
sides of the aisle and the membership of the leadership on both sides
of the aisle, and again especially Leader Hoyer and Mr. Sensenbrenner
for this open, inclusive process.

{time} 1715

The bill is better for it.
I also want to recognize the stakeholders who came to the negotiating
table and helped us to reach consensus. It's often said that true
compromise leaves no one with exactly what they wanted. I expect that
is the case today. There are those who fear we have expanded the reach
of the ADA too far, and there are others who would have preferred us to
go further. But on the whole, we have found common ground that will
allow us to extend strong, meaningful protection to individuals with
disabilities without dramatically expanding the law, increasing its
burdens, or diluting its effectiveness.
I urge passage of the ADA Amendments Act.
Madam Speaker, I yield back the balance of my time.
Mr. GEORGE MILLER of California. Madam Speaker, I want to certainly
thank the staffs of our committees on both sides of the aisle for all
of their work. They put in a tremendous amount of time and intellectual
power behind the amendments to the ADA and to put it back in the place
that it should have after the court decisions damaged the intent and
the purposes of this act. I certainly want to thank Sharon Lewis of the
Committee on Education and Labor and Brian Kennedy and Thomas Webb, who
is with us as an intern, for all of their work.
I am very proud to be a Member of Congress today and certainly of the
House of Representatives as we pass this legislation. I was brought to
the issues around the disability community when I first came to
Congress, or perhaps a little before that when I was working in the
State legislature in California by a hardy crew from California who
were deeply involved in pursuing the civil rights of those with
disabilities and the constitutional rights of those with disabilities
and their place in the legislative process, and I want to thank them.
And that is Judy Heuman from California and known to many; and Ed
Roberts, a great champion of disability rights, a magnificent person;
and Hale Zukor, who still resides in Berkeley and continues the battle;
and Jim Donald, who is a wonderful attorney on behalf of many in the
disability community; and so many others.
In my time in Congress, I have watched the Rehabilitation Act of 1973
and the battle over the 504 regulations; IDEA, at that time Education
for All Handicapped Children, now IDEA; and the ADA; and today the
restoration of the ADA to its proper position and power within the law.
And I think it's a tribute to this Congress. While in many instances we
have had very controversial fights and there have been eruptions over
the implementation of these laws, we have continued to march forward
and ensure the rights of the disabled, for their participation in
American society. I think so many Members now and so many people in

[[Page H6070]]

our society recognize all that the members of the disability community
have accomplished, all that they are accomplishing, and all that they
will accomplish.
So today when we look at a young child seeking to be enrolled in
school and to have an opportunity at the content and the curriculum
that others have and to have the chance to participate in that school
in a meaningful way and not be put off and sidestepped or in segregated
classes; when we look at individuals who want to pursue a career, an
activity, in our society and not be discriminated against; and when we
now see employers recognizing the talents and the abilities and the
contributions to be made by individuals with disabilities, we as a
Nation are far better off, far richer, and far more understanding than
we were prior to the struggles over these laws. And I hope that all
Members will share the pride that I do when later on we will be able to
vote to restore the ADA after the damage done by the court decisions.
And with that I thank all of my colleagues for their participation in
this debate.
Madam Speaker, I yield back the balance of my time.
Mr. SENSENBRENNER. Madam Speaker, I yield myself the balance of my
time.
Madam Speaker, I think that we have seen in the last hour how the
framers of the Constitution intended this Congress to work.
There was a problem. There was a problem that was created by court
decisions misinterpreting the original intent of Congress when it
passed the ADA almost 18 years ago. And people who came from diverse
viewpoints, whether they were in the private sector, citizens with
disabilities and their advocacy groups, Members of Congress on both
sides of the aisle have proven in this legislation that they can work
together and come up with something that is acceptable and beneficial
to all of the stakeholders. I wish we could do more of that here, and
maybe this will set a good example to show that the system does work.
I am going to ask for a rollcall on this legislation, and I hope that
if this is not a unanimous vote in favor of the bill, it will be so
overwhelming that people not only on the other side of this Capitol
building but around the country and around the world will see that
American democracy and the American legislative process worked for the
benefit of people.
Mr. HOLT. Madam Speaker, I want to thank Majority Leader Hoyer and
Representative Sensenbrenner for introducing the ADA Restoration Act
last summer. ``I am a cosponsor of this bill and I am pleased that the
House is considering this important legislation.
This July will mark the 18th anniversary of the Americans with
Disabilities Act, ADA. Unfortunately, as testimony before the House
Committee on Education and Labor made clear in recent years, the
Supreme Court has narrowed the scope of this law and created a new set
of barriers for Americans with disabilities. Under this narrow
interpretation, individuals with diabetes, heart conditions, epilepsy,
mental retardation, cancer, and many other conditions have been denied
their rights under the ADA because they are labeled as ``too
functional'' to be considered ``disabled.''
This legislation would restore protections for disabled Americans
under the ADA and I am pleased that the bill we are considering today
is supported by the disability community as well as the business
community. This bill will reaffirm the ADA's mandate for the
elimination of discrimination on the basis of disability and allow the
ADA to reclaim its place among our Nation most important civil rights
laws.
I am proud that my home State of New Jersey has enacted our own
strong protections against employment discrimination or individuals
with disabilities. My State's experience belies the claims made by some
of the bill's opponents that this legislation is overprotective of
individuals with disabilities.
In March, I hosted a roundtable discussion in New Jersey with
representatives of disability organizations and individuals with
disabilities and with representatives from corporate human resources
departments. From that discussion, I drew information indicating that
the Federal legislation is needed and that it could be implemented
effectively.
At that discussion I heard from Jack, an employer in my district who
was hesitant when approached by the ARC of New Jersey about hiring
individuals with disabilities. Yet, today he now says they are some of
his best employees.
Our Nation has come a long way since the passage of the ADA, from
when the halls of Congress were not even accessible to disabled
members. But, we have much progress yet to make to ensure that the
American dream is truly accessible and available to all Americans.
Mr. EMANUEL. Madam Speaker, I rise today in honor of the passage of
the Americans with Disabilities Act of 1990 and to express my support
for the ADA Amendments Act of 2008.
As a member of the 110th Congress, I am proud to be a cosponsor of
H.R. 3195, the ADA Amendments Act and to continue the fight to ensure
equal rights for all disabled citizens. This vital legislation amends
the Americans with Disabilities Act of 1990 to restore the original
intent of the ADA by clarifying that anyone with impairment, regardless
of his or her successful use of treatments to manage the impairment,
has the right to seek reasonable accommodation in their place of work.
The ADA Amendments Act of 2008 amends the definition of disability so
that those who were originally intended to be protected from
discrimination are covered under the Americans with Disabilities Act.
This prevents courts from considering the use of treatment, or other
accommodations, when deciding whether an individual qualifies for
protection under the ADA and focuses on whether individuals can
demonstrate that they were treated less favorably on the basis of
disability.
I am proud of the continuing work that is being done for Americans
with Disabilities and of the strong support that Chicagoans have shown
for this issue. On July 26, the eighteenth anniversary of its passage,
the Americans with Disabilities Act is being commemorated by Chicago's
fifth annual Disability Pride Parade. This display of support
demonstrates that Chicagoans recognize that passage of the ADA
Amendments Act of 2008, will allow Americans with disabilities to enjoy
the freedom and equality that they are guaranteed by the Constitution.
Madam Speaker, I am honored to commemorate the passage of the
Americans with Disabilities Act of 1990 and urge my colleagues to vote
in favor of the ADA Amendments Act of 2008.
Mr. SCOTT. Madam Speaker, I rise in support of H.R. 3195, the
Americans with Disabilities Amendments Act.
In the early 1980's, 64 disability organizations formed a coalition
known as INVEST, Insure Virginians Equal Status Today, to pass a State
statute in Virginia to protect individuals with disabilities from
discrimination. The landmark ``Virginians with Disabilities Act'' was
the Commonwealth's commitment to encourage persons with disabilities to
participate fully in the social and economic life of the Commonwealth.
It preceded the Federal Americans with Disabilities Act, ADA, by 5
years, and many of the key concepts in the Virginia statute formed the
basis of the ADA.
Signed in 1985 by former Governor Charles S. Robb, the Virginians
with Disabilities Act today protects nearly one million State
residents. This Act acknowledged that ``it is the policy of the
Commonwealth to encourage and enable persons with disabilities to
participate fully and equally in the social and economic life . . . ''
and it protects Virginians with disabilities from discrimination in
employment, education, housing, voting, and places of public
accommodation.
Five years later, the Americans with Disabilities Act of 1990 was
enacted to protect all Americans against discrimination on the basis of
disability. When Congress passed the ADA, Congress adopted the
definition of disability from section 504 of the Rehabilitation Act of
1973, a statute that was well litigated and understood.
Congress expected that under the ADA--just as under the
Rehabilitation Act--individuals with health conditions that were
commonly understood to be disabilities would be entitled to protection
from discrimination. But a series of U.S. Supreme Court decisions
interpreted the ADA in ways that Congress never intended, and over the
years these decisions have eroded the protections of the statute.
First, the Court held in 1999 that mitigating measures--including
prosthetics, medication, and other assistive devices--must be taken
into account when determining if a person is disabled. Then, in 2002,
the Court held that a ``demanding standard'' should be applied to
determining whether a person has a disability. As a result, millions of
people Congress intended to protect under the ADA--such as those with
diabetes, epilepsy, intellectual disabilities, multiple sclerosis,
muscular dystrophy, amputation, cancer and many other impairments--are
not protected as intended.
The ADA Amendments Act will restore the ADA to Congress' original
intent by clarifying that coverage under the ADA is broad and covers
anyone who faces unfair discrimination because of a disability. The ADA
Amendments Act:
Retains the requirement that an individual's impairment substantially
limits a major life activity in order to be considered a disability,
and further that an individual must demonstrate that he or she is
qualified for the job.

[[Page H6071]]

Would overturn several court decisions to provide that people with
disabilities not lose their coverage under the ADA simply because their
condition is treatable with medication or can be addressed with the
help of assistive technology.
Includes a ``regarded as'' prong as part of the definition of
disability which covers situations where an employee is discriminated
against based on either an actual or perceived impairment. Moreover,
the proposal makes it clear that accommodations do not need to be made
to someone who is disabled solely because he or she is ``regarded as''
disabled.
Madam Speaker, the bill before us today is the direct result of
agreements between the business and disability communities to rectify
the problem created by the courts, and I applaud the determination and
hard work, that went into this compromise. The ADA Amendments Act will
enable individuals with disabilities to secure and maintain employment
without fear of being discriminated against because of their
disability. Congress clearly intended to prohibit discrimination
against all people with disabilities and we will do that by passing
H.R. 3195.
Madam Speaker, I urge my colleagues to support this bill.
Mr. VAN HOLLEN. Madam Speaker, I rise in strong support of H.R. 3195,
the ADA Amendments Act of 2008, which would restore the original intent
of the Americans with Disabilities Act, ADA.
The ADA has transformed this country since its enactment in 1990,
helping millions of Americans with disabilities succeed in the
workplace, and making essential services such as transportation,
housing, buildings, and other daily needs more accessible to
individuals with disabilities. It has been one of the most defining and
effective civil rights laws passed by Congress.
Unfortunately, the Federal courts in recent years have slowly chipped
away at the broad protections of the ADA which has created a new set of
barriers for many Americans with disabilities. The court rulings have
narrowed the interpretation of disability by excluding people with
serious conditions such as epilepsy, diabetes, muscular dystrophy,
cancer, and cerebral palsy from the protections of the ADA. The ADA
Amendments Act of 2008 will reestablish these protections and make it
absolutely clear that the ADA is intended to provide broad coverage to
protect anyone who faces discrimination on the basis of disability.
Madam Speaker, this bill is an important step towards restoring the
original intent of the ADA and helps ensure that all Americans with
disabilities live as independent, self-sufficient members of our
society. I urge my colleagues to support this much-needed legislation.
Mr. ISSA. Madam Speaker, today I rise in support of H.R. 3195, ADA
Amendments Act of 2008.
The ADA Amendments Act is a needed step in addressing improper
judicial interpretation of the original Americans with Disabilities
Act. Courts interpreted the Act more narrowly than Congress had
intended resulting in decreased protection under the Act. It is
especially gratifying that in crafting the legislation before us today
the disability community was able to come to an agreement with private
industry on appropriate legislative language.
More specifically than the legislation at hand, I bring attention to
the lack of Americans with Disability Act, ADA, compliance in the
historic Capitol complex, specifically the use of door handles within
personal House offices.
The purpose the ADA is to ensure nondiscrimination for persons with
disabilities including but not limited to public accommodations. The
ADA specifically states the use of lever operated mechanisms, push-type
mechanisms, or U-shaped handles are acceptable designs for all to
operate.
Enacted in 1990, I believe it is the responsibility of Congress to
every extent reasonable, to install appropriate usable hardware by all
those that wish to access the halls of Congress.
Beginning with my first term in office in 2000, I have made requests
to have my personal House office located in the Cannon building
outfitted with ADA appropriate door handles. It is unfortunate that 8
years after my initial request and 18 years following the enactment of
the ADA, Congress has chosen to remain out of compliance with the ADA.
Congress must lead by example by making these buildings accessible to
all Americans, regardless of disability. I urge you to read my attached
most recent correspondence requesting this appropriate and necessary
change.

House of Representatives,

Washington, DC, May 20, 2008.
Hon. Nancy Pelosi,
Speaker, House of Representatives,
Washington, DC.
Dear Madam Speaker: I wanted to make you aware of a request
that I submitted to the Committee on House Administration for
the installation of Americans with Disabilities Act, ADA,
compliant lever-style door handles in my office, room 211 in
the Cannon House Office Building, and throughout the House
campus.
I am concerned that nearly 18 years after the passage of
the Act, Congress remains significantly out of compliance. I
have attached a copy of my letter to Chairman Robert Brady
and Ranking Member Vern Ehlers for your review.
Thank you for your attention to this important request.
Sincerely,
Darrell Issa,
Member of Congress.
Enclosure.
______

House of Representatives,

Washington, DC, May 20, 2008.
Hon. Robert A. Brady,
Chairman, Committee on House Administration, House of
Representatives, Washington, DC.
Hon. Vernon J. Ehlers,
Ranking Member, Committee on House Administration, House of
Representatives, Washington, DC.
Dear Chairman Brady and Ranking Member Ehlers: I am writing
to request the installation of Americans with Disabilities
Act, ADA-compliant lever-style door handles throughout my
office, which is 211 Cannon House Office Building.
Furthermore, I respectfully request that the committee direct
that ADA compliant lever-style door handles be made available
to any Member or committee that requests their installation,
and that the committee develops a plan to complete the
installation of ADA compliant lever-style door handles
campus-wide as soon as practicable.
Enacted by Congress in 1990, and signed into law by
President George H.W. Bush, the ADA is historic legislation
whose purpose is to ensure nondiscrimination for persons with
disabilities in access to employment, public services, public
accommodations and telecommunications. According to the
Department of Justice publication, ADA Standards for
Accessible Design, CFR 28, Part 36, Appendix A, Section
4.13.2, ``Handles, pulls, latches, locks and other operable
devices on doors shall have a shape that is easy to grasp
with one hand and does not require tight grasping, tight
pinching, or twisting of the wrist to operate. Lever-operated
mechanisms, push-type mechanisms, and U-shaped handles are
acceptable designs.''
It is a travesty that nearly 18 years after its enactment,
the Congress remains significantly out of compliance with the
ADA. Door handles throughout the House campus remain
predominantly twisting; knob-style handles which clearly do
not meet the standards outlined by the Act. We set a terrible
example by exempting ourselves just because compliance is
inconvenient or expensive, when we have compelled the
American people by force of law to bear these same expenses
and comply with the Act.
The Capitol is the nation's most prominent public space,
with tens of thousands of Americans visiting, and many more
thousands working here each day. Making it accessible to all
Americans, regardless of disability, should be a priority. I
urge the committee to grant my request for the installation
of ADA compliant lever-style door handles in my congressional
office, to make them available to all Members and committees
upon request, and to act with all practicable speed to
install lever-style compliant door handles campus-wide.
Thank you for your consideration of this request.
Sincerely,
Darrell Issa,
Member of Congress.

Mr. RAMSTAD. Madam Speaker, as co-chair of the Bipartisan
Disabilities Caucus, I rise in strong support of the bill before us,
the ADA Amendments Act.
It is a matter of basic justice for every American to have access to
public accommodations and businesses. And every American deserves the
opportunity to hold a job, contribute their talents and live with
dignity and independence.
That's what the Americans with Disabilities Act, ADA, of 1990 was all
about--creating access and equal opportunity for millions of Americans
with disabilities.
And that's why the recent court cases that have chipped away at the
protections of the ADA have been so alarming. This important bill will
stop the erosion and clarify that people who use adaptive technology to
cope with their disability still deserve the protection of the ADA.
People with disabilities have to overcome obstacles every day. It's
time to remove the legal obstacles to their basic civil rights.
It's time to tear down the barriers that keep people with
disabilities from fully participating and sharing their gifts. It's
time to restore basic justice.
I urge my colleagues to support this important bill.
Ms. JACKSON-LEE of Texas. Madam Speaker, I rise today in support of
H.R. 3195, the ``ADA Restoration Act of 2007.'' I wholeheartedly
support this bill and urge my colleagues to support it also. The
changes embodied by this Act, that restore the with Disabilities Act of
1990, ``ADA'', to its original purpose, are long overdue. This is a
civil rights bill and the rights of the disabled must be restored.
H.R. 3195, the ``ADA Restoration Act of 2007,'' amends the definition
of ``disability'' in

[[Page H6072]]

the ADA in response to the Supreme Court's narrow interpretation of the
definition, which has made it extremely difficult for individuals with
serious health conditions--epilepsy, diabetes, cancer, muscular
dystrophy, multiple sclerosis and severe intellectual impairments--to
prove that they qualify for protection under the ADA. The Supreme Court
has narrowed the definition in two ways: (1) by ruling that mitigating
measures that help control an impairment like medicine, hearing aids,
or any other treatment must be considered in determining whether an
impairment is disabling enough to qualify as a disability; and (2) by
ruling that the elements of the definition must be interpreted
``strictly to create a demanding standard for qualifying as disabled.''
The Court's treatment of the ADA is at odds with judicial treatment of
other civil rights statutes, which usually are interpreted broadly to
achieve their remedial purposes. It is also inconsistent with
Congress's intent.
The committee will consider a substitute that represents the
consensus view of disability rights groups and the business community.
That substitute restores congressional intent by, among other things:
disallowing consideration of mitigating measures other than corrective
lenses, ordinary eyeglasses or contacts, when determining whether an
impairment is sufficiently limiting to qualify as a disability;
maintaining the requirement that an individual qualifying as disabled
under the first of the three-prong definition of ``disability'' show
that an impairment ``substantially limits'' a major life activity but
defining ``substantially limits'' as a less burdensome ``materially
restricts; clarifying that anyone who is discriminated against because
of an impairment, whether or not the impairment limits the performance
of any major life activities, has been ``regarded as'' disabled and is
entitled to the ADA's protection.

Background on Legislation

Eighteen years ago, President George H.W. Bush, with overwhelming
bipartisan support from the Congress, signed into law the ADA. The act
was intended to provide a ``clear and comprehensive mandate,'' with
``strong, consistent, enforceable standards,'' for eliminating
disability-based discrimination. Through this broad mandate, Congress
sought to protect anyone who is treated less favorably because of a
current, past, or perceived disability. Congress did not intend for the
courts to seize on the definition of disability as a means of excluding
individuals with serious health conditions from protection; yet this is
exactly what has happened. A legislative action is now needed to
restore congressional intent, and ensure broad protection against
disability-based discrimination.

Court Rulings Have Narrowed ADA Protection, Resulting in the Exclusion
of Individuals that Congress Clearly Intended to Protect

Through a series of decisions interpreting the ADA's definition of
``disability,'' however, the Supreme Court has narrowed the ADA in ways
never intended by Congress. First, in three cases decided on the same
day, the Supreme Court ruled that the determination of ``disability''
under the first prong of the definition--i.e., whether an individual
has a substantially limiting impairment--should be made after
considering whether mitigating measures had reduced the impact of the
impairment. In all three cases, the undisputed reason for the adverse
action was the employee's medical condition, yet all three employers
argued--and the Supreme Court agreed--that the plaintiffs were not
protected by the ADA because their impairments, when considered in a
mitigated state, were not limiting enough to qualify as disabilities
under the ADA.
Three years later, the Supreme Court revisited the definition of
``disability'' in Toyota Motor Manufacturing, Kentucky, Inc.
v. Williams. In that case, the plaintiff alleged that her employer
discriminated against her by failing to accommodate her disabilities,
which included carpal tunnel syndrome, myotendonitis, and thoracic
outlet compression. While her employer previously had adjusted her job
duties, making it possible for her to perform well despite these
conditions, Williams was not able to resume certain job duties when
requested by Toyota and ultimately lost her job. She challenged the
termination, also alleging that Toyota's refusal to continue
accommodating her violated the ADA. Looking to the definition of
``disability,'' the Court noted that an individual ``must initially
prove that he or she has a physical or mental impairment,'' and then
demonstrate that the impairment ``substantially limits'' a ``major life
activity.'' Identifying the critical questions to be whether a
limitation is ``substantial'' and whether a life activity is ``major,''
the court stated that ``these terms need to be interpreted strictly to
create a demanding standard for qualifying as disabled.'' The Court
then concluded that ``substantial'' requires a showing that an
individual has an impairment ``that prevents or, `` severely restricts
the individual; and ``major'' life activities, requires a showing that
the individual is restricted from performing tasks that are ``of
central importance to most people's daily lives.''

In the wake of these rulings, disabilities that had been covered
under the Rehabilitation Act and that Congress intended to include
under the ADA--serious health conditions like epilepsy, diabetes,
cancer, cerebral palsy, multiple sclerosis--have been excluded. Either,
the courts say, the person is not impaired enough to substantially
limit a major life activity, or the impairment substantially limits
something--like liver function--that the courts do not consider a major
life activity. Courts even deny protection when the employer admits
that it took adverse action based on the individual's impairment,
allowing employers to take the position that an employee is too
disabled to do a job but not disabled enough to be protected by the
law.
On October 4, 2007, the Subcommittee on the Constitution, Civil
Rights, and Civil Liberties held a legislative hearing on H.R. 3195,
the ``ADA Restoration Act of 2007.'' Witnesses at the hearing included
Majority Leader Steny H. Hoyer; Cheryl Sensenbrenner, chair, American
Association of People with Disabilities; Stephen C. Orr, pharmacist and
plaintiff in Orr v. Wal-Mart Stores, Inc.; Michael C. Collins,
executive director, National Council on Disability; Lawrence Z. Lorber,
U.S. Chamber of Commerce; and Chai R. Feldblum, professor, Georgetown
University Law Center.
The hearing provided an opportunity for the Constitution Subcommittee
to examine how the Supreme Court's decisions regarding the definition
of ``disability'' have affected ADA protection for individuals with
disabilities and to consider the need for legislative action.
Representative Hoyer, one of the lead sponsors of the original act and,
along with Representative Sensenbrenner, lead House co-sponsor of the
ADA Restoration Act, explained the need to respond to court decisions
``that have sharply restricted the class of people who can invoke
protection under the law and [reinstate] the original congressional
intent when the ADA passed.'' Explaining Congress's choice to adopt the
definition of ``disability'' from the Rehabilitation Act because it had
been interpreted generously by the courts, Representative Hoyer
testified that Congress had never anticipated or intended that the
courts would interpret that definition so narrowly:

[W]e could not have fathomed that people with diabetes,
epilepsy, heart conditions, cancer, mental illnesses and
other disabilities would have their ADA claims denied because
they would be considered too functional to meet the
definition of disabled. Nor could we have fathomed a
situation where the individual may be considered too disabled
by an employer to get a job, but not disabled enough by the
courts to be protected by the ADA from discrimination. What a
contradictory position that would have been for Congress to
take.

Representative Hoyer, joined by all of the witnesses except Mr.
Lorber, urged Congress to respond by passing H.R. 3195 to amend the
definition of ``disability.'' Mr. Lorber, appearing on behalf of the
Chamber of Commerce, opposed H.R. 3195 as an overly broad response to
court decisions that accurately reflected statutory language and
congressional intent.
Since the subcommittee's hearing, several changes have been made to
the bill, which are reflected in the substitute that will likely be
considered by the committee. The substitute, described section-by-
section below, represents the consensus of the disability rights and
business groups and is supported by, among others, the Chamber of
Commerce.
Importantly, section 4 of the bill, amends the definition of
``disability'' and provides standards for applying the amended
definition. While retaining the requirement that a disability
``substantially limits'' a ``major'' life activity under prongs 1 and 2
of the definition of disability, section 4 redefines ``substantially
limits'' as ``materially restricts'' to indicate a less stringent
standard. Thus, while the limitation imposed by an impairment must be
important, it need not rise to the level of preventing or severely
restricting the performance of major life activities in order to
qualify as a disability. Section 4 provides an illustrative list of
life activities that should be considered ``major,'' and clarifies that
an individual has been ``regarded as'' disabled, and is entitled to
protection under the ADA, if discriminated against because of an
impairment, whether or not the impairment limits the performance of any
major life activities. Section 4 requires broad construction of the
definition and prohibits consideration of mitigating measures, with the
exception of ordinary glasses or contact lenses, in determining whether
an impairment substantially limits a major life activity.
I support this bill and I urge my colleagues to support it also.
Ms. HIRONO. Madam Speaker, I rise today in strong support of H.R.
3195, the ADA Restoration Act of 2007. I would like to thank the chief
sponsor of the bill, Majority Leader Steny Hoyer, and the chairman of
the Education and Labor Committee, George Miller, for their leadership
and work on disability rights.

[[Page H6073]]

Congress passed the Americans with Disabilities Act, ADA, 18 years
ago with overwhelming support from both parties and President George
H.W. Bush. The intent of Congress was clear: to make this great
Nation's promise of equality and freedom a reality for Americans with
disabilities.
Standing together, leaders from both parties described the law as
``historic,'' ``landmark,'' an ``emancipation proclamation for people
with disabilities.'' These were not timid or hollow words. The
congressional mandate was ambitious: prohibit unfair discrimination and
require changes in workplaces, public transportation systems,
businesses, and other programs or services.
Through this broad mandate, Congress intended to protect anyone who
is treated less favorably because of a current, past, or perceived
disability. As with other civil rights laws, Congress wanted to focus
on whether an individual could prove that he or she had been treated
less favorably because of a physical or mental impairment. Congress
never intended for the courts to seize on the definition of
``disability'' as a means of excluding individuals with serious health
conditions like epilepsy, diabetes, cancer, HIV, muscular dystrophy,
and multiple sclerosis from protection under the law.
Yet this is exactly what has happened. Through a series of decisions
interpreting the definition of ``disability'' narrowly, the U.S.
Supreme Court has inappropriately shifted the focus away from an
employer's alleged misconduct onto whether an individual can first meet
a ``demanding standard for qualifying as disabled.''
Millions of Americans who experience disability-based discrimination
have been or will be denied protection under ADA and barred from
challenging discriminatory conduct. By passing H.R. 3195, the Congress
will be able to correct these decisions made by the courts.
H.R. 3195 would do this by: amending the definition of ``disability''
so that individuals who Congress originally intended to protect from
discrimination are covered under the ADA; preventing the courts from
considering ``mitigating measures'' when deciding whether an individual
qualifies for protection under the law; and keeping the focus in
employment cases on the reason for the adverse action. The appropriate
question is whether someone can show that he or she was treated less
favorably ``on the basis of disability'' and not whether an individual
has revealed enough private and highly personal facts about how he or
she is limited by an impairment. The bill reminds the courts that--as
with any other civil rights law--the ADA must be interpreted fairly,
and as Congress intended.
As an original cosponsor of H.R. 3195, I believe that it rightfully
will restore protections for disabled Americans under the landmark ADA,
one of our Nation's most important civil rights laws.
I would like to share with you just a few examples of how ADA has
made a positive impact for individuals with disabilities in my home
State of Hawaii:
An 85 year old Honolulu woman, who is both deaf and blind, is able to
access the public transportation system to visit her husband who
resides in a long-term care facility far from her home.
The first ``chirping'' traffic light on the island of Kauai was
installed at a busy intersection thanks to the work of an advocate for
the blind.
The annual Maui County Fair has a special day set aside for people
with disabilities to participate in the rides and games.
A Kauai bakery installed a blinking light system on their ovens so
that a hearing-impaired employee would be notified when her baking was
complete, thus allowing her to work independently.
Each year, the Hawaii State Vocational Rehabilitation and Services
for the Blind Division of the Department of Human Services recognizes
outstanding clients from the districts they serve. I would like to
recognize the following 2007 Rehabilitants of the Year: Deanna DeLeon
of the Big Island, Rogie Yasay Pagatpatan of Maui, Serafin Palomares of
Kauai, and Tauloa ``Mona'' Pouso`o of Oahu. I would like to include in
the Congressional Record their stories of success, as each of these
individuals leads a life of inspiration.
I urge my colleagues to join me in voting for H.R. 3195 so we can
continue to build on the successes of the Americans with Disabilities
Act. Mahalo (thank you).

Hawaii Branch 2007 Rehabilitant of the Year, Nominated by Ellen
Okimoto, Vocational Rehabilitation Specialist

Deanna DeLeon came to VR in March 2006 looking for a way to
change her life. Deanna faced many challenges in her life.
Her past history of abuse led her to the Big Island Drug
Court Program. Through this program and with the support of
the Division of Vocational Rehabilitation, Deanna set a goal
of becoming successfully employed.
The combination of her past work experience in the hotel
industry and as an administrative assistant qualified her for
a position as a tour receptionist with Wyndham Vacation
Resorts in June 2006. Deanna's supervisor, Patsy Mecca,
stated that Deanna brings positive energy and a bright smile
to the team. Deanna has since been promoted to a Gifting
Supervisor and continues to work in a job that she so loves.
Go Forward To Work. Congratulations, Deanna for a job well
done.
____

Maui Branch 2007 Rehabilitant of the Year, Nominated by Lydia Sheets,
Vocational Rehabilitation Specialist

Having a disability never stopped Rogie Yasay Pagatpatan
from working for long periods of time. Rogie requires
assistance in completing applications and interviewing. Each
time he needs to look for a new job, he has enlisted the help
of his Vocational Rehabilitation Specialist, Lydia Sheets in
the Maui Branch Office. Rogie and Lydia have been a
successful team for many years. Lydia knows Rogie so well
that she has collaborated with employers to help Rogie find
and keep jobs.
Most recently, Lydia helped Rogie obtain a position with
the Maui Disposal Company, Inc. He was hired as a sorter at
the company's material Recover Facility--a processing plant
for recyclable products including plastic, glass, aluminum,
and mixed paper. Rogie works with other processors and
several supervisors. He has a job that requires teamwork,
cooperation, conscientiousness, and tolerance of waste
products, outdoor work, environmental factors, and working
around moving machinery. Rogie has proven that he can handle
the job. With the help of supervisors West Paul and Wendell
Parker, Rogie has become a valued employee.
Rogie's persistence is admirable, and his commitment has
impressed his supervisors. He was honored as the ``Employee
of the Month'' in June 2007. Rogie's success is due in part
to his supportive and patient supervisors, who look at his
abilities rather than his limitations.
____

Kauai Branch 2007 Rehabilitant of the Year, Nominated by Debra
Matsumoto, Employment Service Specialist

``Everyone is telling me what I cannot do'', stated Serafin
Palomares when we first met in 2001. This made him even more
determined to prove ``everyone'' wrong, and together, we
proceeded to do just that. After recovering from a stroke,
Serafin's goal was to return to his previous employment in
the Food & Beverage field. We realized that due to his
limitations, he would not be able to perform some of the
duties required in a restaurant setting. He could be
successful however, if the work environment was modified.
Serafin enrolled at Kauai Community College and worked
toward a degree in culinary arts. School became a lengthy
process, involving a lot of creative collaboration between
the Instructors, college counselor, and VR. The biggest
hurdle was finding an appropriate practicum site. It soon
became clear that Serafin would do best working independently
at his own pace, building a workstation, and creating a
system that would meet his specific needs. When the Piikoi
Building Vending Stand in the County Civic Center became
available as a practicum site, Serafin leapt at the chance to
give it a try . . . and Serafin has never left.
Upon earning an AS degree in 2005, he decided to make the
leap to self-employment. Serafin has managed to create a
popular, thriving Vending Stand in the heart of Lihue town.
He is renowned for his specialty sandwiches and salads, and
the sky's the limit as far as how big he could build his
business. Yet, Serafin prefers to keep things small and
simple, because for him, it's not about the money as much as
it is having a joyful purpose for waking up each day. You can
see that he truly enjoys what he does by the bright smile he
wears when he greets his customers . . . and that's really
what keeps the regulars coming back day after day.
Congratulations to Serafin Palomares. Kauai's Outstanding
Rehabilitant of the Year.
____

Oahu Branch Deaf Services Section 2007 Rehabilitant of the Year,
Nominated by Amanda Christian, Vocational Rehabilitation Specialist

Deaf Services Section is proud to nominate known to his
friends and family as ``Mona'', as this year's Outstanding
Rehabilitant of the Year. Mona is a deaf person with
significant developmental delays and minimal language skills.
He is extremely shy; however, he has a heart of gold and a
terrific work ethic.
After graduating from the Hawaii Center for the Deaf and
Blind, Mona received kitchen training from Lanakila
Rehabilitation Center (LRC) from 2002 until 2006 where he
learned food preparation and dishwashing skills. At that
time, it was a common belief that Mona would need extended
support services in order to maintain competitive employment.
With the assistance of LRC, Mona was placed at Red Lobster in
November 2006. He received on-the-job training from November
2006 until February 2007 with specialized job coaches.
Mona eventually became comfortable with his work
environment and began to make friends with co-workers. He is
now confident with his tasks and will help others with their
work at any time he sees that they need help. Mona's job
duties initially were limited

[[Page H6074]]

to cleaning the restrooms, bagging linguini and rice, and
washing dishes. Mona later proved he was capable of much more
and now helps staff with tasks such as mopping the bar area,
food prep work, and helping in the storage room. He often
arrives at work early and at times, has to be persuaded to
leave work at the end of his shift. Upon leaving work, he
makes sure to say ``goodbye'' to each one of his co-workers
at least once; sometimes twice. Mona's supervisors and co-
workers report how cherished Mona is and how well he is
doing.
Deaf Services Section is honored and humbled to be able to
recognize Mona Pouso'o's hard work and outstanding
achievements. He has been an inspiration to us all and will
continue to stand out in our minds as the definition of a
successfully rehabilitated individual.

Mr. NADLER. Madam Speaker, I want to commend the distinguished
majority leader and gentleman from Wisconsin, Mr. Sensenbrenner, for
their leadership on this important legislation.
H.R. 3195 would help to restore the Americans with Disabilities Act
to its rightful place among this Nation's great civil rights laws.
This legislation is necessary to correct Supreme Court decisions that
have created an absurd catch-22 in which an individual can face
discrimination on the basis of an actual, past, or perceived disability
and yet not be considered sufficiently disabled to be protected against
that discrimination by the ADA. That was never Congress's intent, and
H.R. 3195 cures this problem.
H.R. 3195 lowers the burden of proving that one is disabled enough to
qualify for coverage. It does this by directing courts to read the
definition broadly, as is appropriate for remedial civil rights
legislation. It also redefines the term ``substantially limits,'' which
was restrictively interpreted by the courts to set a demanding standard
for qualifying as disabled. An individual now must show that his or her
impairment ``materially restricts'' performance of major life
activities. While the impact of the impairment must still be important,
it need not severely or significantly restrict one's ability to engage
in those activities central to most people's daily lives, including
working.
Under this new standard, for example, it should be considered a
material restriction if an individual is disqualified from his or her
job of choice because of an impairment. An individual should not need
to prove that he or she is unable to perform a broad class or range of
jobs. We fully expect that the courts, and the federal agencies
providing expert guidance, will revisit prior rulings and guidance and
adjust the burden of proving the requisite ``material'' limitation to
qualify for coverage.
This legislation is long overdue. Countless Americans with
disabilities have already been deprived of the opportunity to prove
that they have been victims of discrimination, that they are qualified
for a job, or that a reasonable accommodation would afford them an
opportunity to participate fully at work and in community life.
Some of my colleagues from across the aisle have raised concerns that
this bill would cover ``minor'' or ``trivial'' conditions. They worry
about covering ``stomach aches, the common cold, mild seasonal
allergies, or even a hangnail.''
I have yet to see a case where the ADA covered an individual with a
hangnail. But I have seen scores of cases where the ADA was construed
not to cover individuals with cancer, epilepsy, diabetes, severe
intellectual impairment, HIV, muscular dystrophy, and multiple
sclerosis.
These people have too often been excluded because their impairment,
however serious or debilitating, was mis-characterized by the courts as
temporary, or its impact considered too short-lived and not permanent
enough--although it was serious enough to cost them the job.
That's what happened to Mary Ann Pimental, a nurse who was diagnosed
with breast cancer after being promoted at her job. Mrs. Pimental had a
mastectomy and underwent chemotherapy and radiation therapy. She
suffered radiation burns and premature menopause. She had difficulty
concentrating, and experienced extreme fatigue and shortness of breath.
And when she felt well enough to return to work, she discovered that
her job was gone and the only position available for her was part-time,
with reduced benefits.
When Ms. Pimental challenged her employer's failure to rehire her
into a better position, the court told her that her breast cancer was
not a disability and that she was not covered by the ADA. The court
recognized the ``terrible effect the cancer had upon'' her and even
said that ``there is no question that her cancer has dramatically
affected her life, and that the associated impairment has been real and
extraordinarily difficult for her and her family.''
Yet the court still denied her coverage under the ADA because it
characterized the impact of her cancer as ``short-lived''--meaning that
it ``did not have a substantial and lasting effect'' on her.
Mary Ann Pimental died as a result of her breast cancer 4 months
after the court issued its decision. I am sure that her husband and two
children disagree with the court's characterization of her cancer as
``short-lived,'' and not sufficiently permanent.
This House should also disagree--and does--as is shown by the broad
bipartisan support for H.R. 3195.
H.R. 3195 ensures that individuals like Mary Ann Pimental are covered
by the law when they need it. It directs the courts to interpret the
definition of disability broadly, as is appropriate for remedial civil
rights to legislation. H.R. 3195 requires the courts--and the federal
agencies providing expert guidance--to lower the burden for obtaining
coverage under this landmark civil rights law. This new standard is not
onerous, and is meant to reduce needless litigation over the threshold
question of coverage.
It is our sincere hope that, with less battling over who is or is not
disabled, we will finally be able to focus on the important questions--
is an individual qualified? And might a reasonable accommodation afford
that person the same opportunities that his or her neighbors enjoy.
I urge my colleagues to join me in voting for passage of H.R. 3195,
as reported unanimously by the House Judiciary Committee.
Mr. SMITH of Texas. Madam Speaker, the Americans with Disabilities
Act, enacted almost 18 years ago, removed many physical barriers
disabled people faced in their daily lives. It also helped remove the
mental barriers that often prevented non-disabled Americans from
looking beyond wheel chairs and walking canes and seeing disabled
Americans as the friends and coworkers they are.
When the ADA was originally enacted in 1990, it was the result of
bipartisan efforts in Congress. So I am pleased that various interested
parties have been able to reach agreement on statutory language
amending the ADA.
I support the compromise and believe it was reached in good faith.
However, I do have some concerns regarding how the courts will
interpret the legislative language we will consider today.
So let me express what I believe to be the nature and import of this
legislation.
First, the common understanding in Congress is that this legislation
would simply restore the original intent of the ADA by bringing the
statutory text in line with the legislative history of the original
ADA.
That legislative history from both the House Education and Labor and
the Senate committee reports provided that ``[p]ersons 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 by the ADA.
I believe that understanding is entirely appropriate, and I would
expect the courts to agree with and apply that interpretation. If that
interpretation were not to hold but were to be broadened improperly 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.
So, I want to make clear that I believe that the drafters and
supporters of this legislation, including me, intend to exclude minor
and trivial impairments from coverage under the ADA, as they have
always been excluded.
Second, the Supreme Court in Toyota Motor Manufacturing v. Williams
held that under the original ADA, ``[t]he impairment's impact must also
be permanent or long term.''
The findings in the language before us today state that the purpose
of the legislation is ``to provide a new definition of `substantially
limits' to indicate that Congress intends to depart from the strict and
demanding standard applied by the Supreme Court in Toyota Motor
Manufacturing.''
I understand that this finding is not meant to express disagreement
with or to overturn the Court's determination that the ADA apply only
to individuals with impairments that are permanent or long term in
impact.
If these understandings of the language before us today do not
prevail, the courts may be flooded with frivolous cases brought by
those who were not intended to be protected under the original ADA.
If that happens, those who would have been clearly covered under the
original ADA, such as paralyzed veterans or the blind, will be forced
to wait in line behind thousands of others filing cases regarding minor
or trivial impairments. I don't believe anyone supporting this new
language wants that to happen, and I want to make that clear for the
record.
With the understandings I have expressed, I support the Americans
with Disabilities Act Restoration Act.
Mr. SENSENBRENNER. Madam Speaker, I yield back the balance of my
time.
The SPEAKER pro tempore. Pursuant to House Resolution 1299, the
previous question is ordered on the bill, as amended.

[[Page H6075]]

The question is on the engrossment and third reading of the bill.
The bill was ordered to be engrossed and read a third time, and was
read the third time.
The SPEAKER pro tempore. The question is on the passage of the bill.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mr. SENSENBRENNER. Madam Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further
proceedings on this question will be postponed.

____________________