[Congressional Record Volume 154, Number 144 (Thursday, September 11, 2008)]
[Senate]
[Pages S8342-S8356]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
ADA AMENDMENTS ACT OF 2008
Mr. HARKIN. Mr. President, I ask unanimous consent that the Senate
now proceed to Calendar No. 927, S. 3406, a bill to restore the intent
and protections of the Americans with Disabilities Act of 1990; that
the bill be read three times, passed, and the motion to reconsider be
laid upon the table, without intervening action or debate; that upon
passage, Senator Hatch and I be recognized to speak for a period not to
exceed 40 minutes total.
The PRESIDING OFFICER. Without objection, it is so ordered.
The bill (S. 3406) was ordered to be engrossed for a third reading,
was read the third time, and passed, as follows:
S. 3406
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 a handicapped
individual under the Rehabilitation Act of 1973, that
expectation has not been fulfilled;
(4) the holdings of the Supreme Court in Sutton v. United
Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases
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;
(5) the holding of the Supreme Court in Toyota Motor
Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184
(2002) further narrowed the broad scope of protection
intended to be afforded by the ADA;
(6) 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;
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(7) in particular, the Supreme Court, in the case of
Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534
U.S. 184 (2002), interpreted the term ``substantially
limits'' to require a greater degree of limitation than was
intended by Congress; and
(8) Congress finds that the current Equal Employment
Opportunity Commission ADA regulations defining the term
``substantially limits'' as ``significantly restricted'' are
inconsistent with congressional intent, by expressing too
high a standard.
(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 Air Lines, 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 Air Lines, 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'';
(5) to convey congressional intent that the standard
created by the Supreme Court in the case of Toyota Motor
Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184
(2002) for ``substantially limits'', and applied by lower
courts in numerous decisions, has created an inappropriately
high level of limitation necessary to obtain coverage under
the ADA, to convey that it is the intent of Congress that the
primary object of attention in cases brought under the ADA
should be whether entities covered under the ADA have
complied with their obligations, and to convey that the
question of whether an individual's impairment is a
disability under the ADA should not demand extensive
analysis; and
(6) to express Congress' expectation that the Equal
Employment Opportunity Commission will revise that portion of
its current regulations that defines the term ``substantially
limits'' as ``significantly restricted'' to be consistent
with this Act, including the amendments made by this Act.
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;'';
(2) by striking paragraph (7); and
(3) by redesignating paragraphs (8) and (9) as paragraphs
(7) and (8), respectively.
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 (3)).
``(2) 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.
``(3) 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.
``(4) Rules of construction regarding the definition of
disability.--The definition of `disability' in paragraph (1)
shall be construed in accordance with the following:
``(A) The definition of disability in this Act shall be
construed in favor of broad coverage of individuals under
this Act, to the maximum extent permitted by the terms of
this Act.
``(B) The term `substantially limits' shall be
interpreted consistently with the findings and purposes of
the ADA Amendments Act of 2008.
``(C) An impairment that substantially limits one major
life activity need not limit other major life activities in
order to be considered a disability.
``(D) An impairment that is episodic or in remission is a
disability if it would substantially limit a major life
activity when active.
``(E)(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 of the United
States, 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(4)(E)(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.''.
[[Page S8344]]
(c) Conforming Amendments.--
(1) Section 101(8) of the Americans with Disabilities Act
of 1990 (42 U.S.C. 12111(8)) is amended--
(A) in the paragraph heading, by striking ``with a
disability''; and
(B) by striking ``with a disability'' after
``individual'' both places it appears.
(2) Section 104(a) of the Americans with Disabilities Act
of 1990 (42 U.S.C. 12114(a)) is amended by striking ``the
term `qualified individual with a disability' shall'' and
inserting ``a qualified individual with a disability shall''.
SEC. 6. RULES OF CONSTRUCTION.
(a) Title V of the Americans with Disabilities Act of
1990 (42 U.S.C. 12201 et seq.) 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) Fundamental Alteration.--Nothing in this Act alters
the provision of section 302(b)(2)(A)(ii), specifying that
reasonable modifications in policies, practices, or
procedures shall be required, unless an entity can
demonstrate that making such modifications in policies,
practices, or procedures, including academic requirements in
postsecondary education, would fundamentally alter the nature
of the goods, services, facilities, privileges, advantages,
or accommodations involved.
``(g) Claims of No Disability.--Nothing in this Act shall
provide the basis for a claim by an individual without a
disability that the individual was subject to discrimination
because of the individual's lack of disability.
``(h) 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) of such section.'';
(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
of disability in section 3 (including rules of construction)
and the definitions in section 4, consistent with the ADA
Amendments Act of 2008.''; and
(3) in section 511 (as redesignated by paragraph (2)) (42
U.S.C. 12211), in subsection (c), by striking ``511(b)(3)''
and inserting ``512(b)(3)''.
(b) The table of contents contained in section 1(b) of
the Americans with Disabilities Act of 1990 is amended by
redesignating the items relating to sections 506 through 514
as the items relating to 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 (42 U.S.C. 12102)'';
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 (42
U.S.C. 12102).''.
SEC. 8. EFFECTIVE DATE.
This Act and the amendments made by this Act shall become
effective on January 1, 2009.
Mr. HARKIN. Mr. President, I ask unanimous consent that the Statement
of Managers to Accompany S. 3406, the Americans With Disabilities Act
Amendments Act of 2008, be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Statement of the Managers To Accompany S. 3406, The Americans With
Disabilities Act Amendments Act of 2008
I. Purpose and Summary of the Legislation
The purpose of S. 3406, the ``ADA Amendments Act of 2008''
is to clarify the intention and enhance the protections of
the Americans with Disabilities Act of 1990, landmark civil
rights legislation that provided ``a clear and comprehensive
national mandate for the elimination of discrimination on the
basis of disability.'' In particular, the ADA Amendments Act
amends the definition of disability by providing
clarification and instruction about the terminology used in
the definition, by expanding the definition, and by rejecting
several opinions of the United States Supreme Court that have
had the effect of restricting the meaning and application of
the definition of disability.
S. 3406 is the product of an extensive bipartisan effort
that included many hours of meetings and negotiation by
legislative staff as well as by stakeholders including the
disability, business, and education communities. In addition,
two hearings were held in the Senate Health, Education,
Labor, and Pensions Committee to explore the issues addressed
in this legislation. The goal has been to achieve the ADA's
legislative objectives in a way that maximizes bipartisan
consensus and minimizes unintended consequences.
This legislation amends the Americans with Disabilities Act
of 1990 by making the changes identified below.
Aligning the construction of the Americans with
Disabilities Act with Title VII of the Civil Rights Act of
1964, the bill amends Title I of the ADA to provide that no
covered entity shall discriminate against a qualified
individual ``on the basis of disability.''
The bill maintains the ADA's inherently functional
definition of disability as a physical or mental impairment
that substantially limits one or more life activities; a
record of such impairment; or being regarded as having such
an impairment. It clarifies and expands the definition's
meaning and application in the following ways.
First, the bill deletes two findings in the ADA which led
the Supreme Court to unduly restrict the meaning and
application of the definition of disability. These findings
are that there are ``some 43,000,000 Americans have one or
more physical or mental disabilities'' and that ``individuals
with disabilities are a discrete and insular minority.'' The
Court treated these findings as limitations on how it
construed other provisions of the ADA. This conclusion had
the effect of interfering with previous judicial precedents
holding that, like other civil rights statutes, the ADA must
be construed broadly to effectuate its remedial purpose.
Deleting these findings removes this barrier to construing
and applying the definition of disability more generously.
Second, the bill affirmatively provides that the definition
of disability ``shall be construed in favor of broad coverage
of individuals under this Act, to the maximum extent
permitted by the terms of this Act.'' It retains the term
``substantially limits'' from the original ADA definition but
makes it clear that this is intended to be a less demanding
standard than that enunciated by the U.S. Supreme Court in
Toyota Motor Manufacturing, Kentucky, Inc. v. Williams. With
this rule of construction and relevant purpose language, the
bill rejects the Supreme Court's holding in Toyota v.
Williams that the terms ``substantially'' and ``major'' in
the definition of disability must be ``be interpreted
strictly to create a demanding standard for qualifying as
disabled,'' as well as the Court's interpretation that
``substantially limits'' means ``prevents or severely
restricts.''
Third, the bill prohibits consideration of mitigating
measures such as medication, assistive technology,
accommodations, or modifications when determining whether an
impairment constitutes a disability. This provision and
relevant purpose language rejects the Supreme Court's
holdings in Sutton v. United Air Lines and its companion
cases that mitigating measures must be considered. The bill
also provides that impairments that are episodic or in
remission are to be assessed in an active state.
Fourth, the bill provides new instruction on what may
constitute ``major life activities.'' It provides a non-
exhaustive list of major life activities within the meaning
of the ADA. In addition, the bill expands the category of
major life activities to include the operation of major
bodily functions.
Fifth, the bill removes from the third ``regarded as''
prong of the disability definition the requirement that an
individual demonstrate that he or she has, or is perceived to
have, an impairment that substantially limits a major life
activity. Under the bill, therefore, an individual can
establish coverage under the law by showing that he or she
has been subjected to an action prohibited under the Act
because of an actual or perceived physical or mental
impairment. Because the bill thus broadens application of
this third prong of the disability definition, entities
covered by the ADA will not be required to provide
accommodations or to modify policies and procedures for
individuals who fall solely under the third prong. Such
entities will, however, still be subject to discrimination
claims.
Finally, the bill clarifies that the agencies that
currently issue regulations under the ADA have regulatory
authority related to the definitions contained in Section 3.
Conforming amendments to Section 7 of the Rehabilitation Act
of 1973 are intended to ensure harmony between federal civil
rights laws.
II. Background and Need for Legislation
When Congress passed the ADA in 1990, it adopted the
functional definition of disability from the Section 504 of
the Rehabilitation Act of 1973, in part, because after 17
years of development through case law the requirements of the
definition were well understood. Within this framework, with
its generous and inclusive definition of disability, courts
treated the determination of disability as a threshold issue
but focused primarily on whether unlawful discrimination had
occurred.
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More recent Supreme Court decisions imposing a stricter
standard for determining disability had the effect of
upsetting this balance. After the Court's decisions in Sutton
that impairments must be considered in their mitigated state
and in Toyota that there must be a demanding standard for
qualifying as disabled, lower courts more often found that an
individual's impairment did not constitute a disability. As a
result, in too many cases, courts would never reach the
question whether discrimination had occurred.
Thus, some 18 years later we are faced with a situation in
which physical or mental impairments that would previously
have been found to constitute disabilities are not considered
disabilities under the Supreme Court's narrower standard.
These can include individuals with impairments such as
amputation, intellectual disabilities, epilepsy, multiple
sclerosis, diabetes, muscular dystrophy, and cancer. The
resulting court decisions contribute to a legal environment
in which individuals must demonstrate an inappropriately high
degree of functional limitation in order to be protected from
discrimination under the ADA.
The ADA Amendments Act rejects the high burden required in
these cases and reiterates that Congress intends that the
scope of the Americans with Disabilities Act be broad and
inclusive. It is the intent of the legislation to establish a
degree of functional limitation required for an impairment to
constitute a disability that is consistent with what Congress
originally intended, a degree that is lower than what the
courts have construed it to be. In addition, the bill
provides for application of this standard to a wider range of
cases by expanding the category of major life activities.
These steps, resulting from extensive bipartisan negotiation
and discussion among legislators and stakeholders, are
intended to provide for more generous coverage and
application of the ADA's prohibition on discrimination
through a framework that is more predictable, consistent, and
workable for all entities subject to responsibilities under
the ADA.
III. Explanation of the Bill and Manager's Views
Overview
The Americans with Disabilities Act of 1990 (``the ADA'')
is a landmark statute that has fundamentally changed the
lives of many millions of Americans with disabilities. The
managers of this legislation were proud to be leaders in that
effort that was accomplished in a deliberative careful manner
that allowed for the development of a strong bipartisan
coalition in both Houses of Congress and the Administration
of President George H. W. Bush and led to Senate passage with
a definitive vote of 91-6.
However, as discussed in more detail below, a series of
Court decisions have restricted the coverage and diminished
the civil rights protections of the ADA, especially in the
workplace, by narrowing its definition of disability. As a
result, lower court cases have too often turned solely on the
question of whether the plaintiff is an individual with a
disability rather than the merits of discrimination claims,
such as whether adverse decisions were impermissibly made by
the employer on the basis of disability, reasonable
accommodations were denied inappropriately, or qualification
standards were unlawfully discriminatory.
The managers have introduced the ADA Amendments Act of 2008
to restore the proper balance and application of the ADA by
clarifying and broadening the definition of disability, and
to increase eligibility for the protections of the ADA. It is
our expectation that because this bill makes the definition
of disability more generous, some people who were not covered
before will now be covered. The strong bipartisan support for
this legislation once again demonstrates the continuing
bipartisan commitment to protecting the civil rights of
individuals with disabilities among members of the Senate
Committee on Health Education Labor and Pensions and the
Senate as a whole.
The ADA Amendments Act renews our commitment to ensuring
that all Americans with disabilities, including a new
generation of disabled veterans who are just beginning to
grapple with the challenge of living to their full potential
despite the limitations imposed by their disabilities, are
able to participate to the fullest possible extent in all
facets of society, including the workplace. We acknowledge
and applaud the substantial improvements in medical science
and the courageous efforts of individuals with disabilities
to overcome the impact of those disabilities, but in no way
wish to exclude them thereby from protection under the ADA.
By retaining the essential elements of the definition of
disability including the key term ``substantially limits'' we
reaffirm that not every individual with a physical or mental
impairment is covered by the first prong of the definition of
disability in the ADA. An impairment that does not
substantially limit a major life activity is not a disability
under this prong. That will not change after enactment of the
ADA Amendments Act, nor will the necessity of making
this determination on an individual basis. What will
change is the standard required for making this
determination. This bill lowers the standard for
determining whether an impairment constitute a disability
and reaffirms the intent of Congress that the definition
of disability in the ADA is to be interpreted broadly and
inclusively.
Findings and Purposes
Given the importance the Court has placed upon findings and
purposes particularly in civil rights statutes like the ADA,
the ADA Amendments Act contains a detailed Findings and
Purposes section that the managers believe gives clear
guidance to the courts and that they intend to be applied
appropriately and consistently. As described above, the
legislation deletes two findings in the ADA that have been
interpreted by the Supreme Court to require a narrow
definition of disability. We continue to believe that
individuals with disabilities ``have been faced with
restrictions and limitations, subjected to a history of
purposeful unequal treatment, and relegated to a position of
political powerlessness in our society, based on
characteristics that are beyond the control of such
individuals and resulting from stereotypic assumptions not
truly indicative of the individual ability of such
individuals to participate in, and contribute to, society.''
In addition to deleting the findings forming the basis of
the Sutton and Toyota decisions, the bill states explicitly
its purpose to reject the holdings in those cases (and their
progeny), and to ensure broad coverage under the ADA. To be
clear, the purposes section conveys our intent to clarify not
only that ``substantially limits'' should be measured by a
lower standard than that used in Toyota, but also that the
definition of disability should not be unduly used as a tool
for excluding individuals from the ADA's protections.
The bill expresses the clear intent of Congress that the
EEOC will revise its regulations that similarly improperly
define the term ``substantially limits'' as ``significantly
restricted''; again, this sets too high a standard.
The bill's purposes also reject the Supreme Court's holding
that mitigating measures must be considered when determining
whether an impairment constitutes a disability. With the
exception of ordinary eyeglasses and contact lenses,
impairments must be examined in their unmitigated state.
These purposes are specifically incorporated into the
statute by the rule of construction providing that the term
``substantially limits'' shall be construed consistently with
the findings and purposes of the ADA Amendments Act of 2008.
This rule of construction, together with the rule of
construction providing that the definition of disability
shall be construed in favor of broad coverage of individuals
sends a clear signal of our intent that the courts must
interpret the definition of disability broadly rather than
stringently.
Definition of Disability
In the ADA of 1990, Congress sought to protect anyone who
experiences discrimination because of a current, past, or
perceived disability. Under the ADA, there are three prongs
of the definition of disability, with respect to an
individual:
(1) a physical or mental impairment that substantially
limits one or more of the major life activities of such
individual;
(2) a record of such an impairment; or
(3) being regarded as having such an impairment.
This definition is of critical importance because as a
threshold issue it determines whether an individual is
covered by the ADA. The ADA Amendments Act retains the
definition of disability but further defines and clarifies
three critical terms within the existing definition
(``substantially limits,'' ``major life activities,''
``regarded as having such impairment'') and, under the rules
of construction for the definition, adds several standards
that must be applied when considering the definition of
disability.
Physical or Mental Impairment
The bill does not provide a definition for the terms
``physical impairment'' or ``mental impairment.'' The
managers expect that the current regulatory definition of
these terms, as promulgated by agencies such as the U.S.
Equal Employment Opportunity Commission (EEOC), the
Department of Justice (DOJ) and the Department of Education
Office of Civil Rights (DOE OCR) will not change.
Substantially Limits
We do not believe that the courts have correctly instituted
the level of coverage we intended to establish with the term
``substantially limits'' in the ADA. In particular, we
believe that the level of limitation, and the intensity of
focus, applied by the Supreme Court in Toyota goes beyond
what we believe is the appropriate standard to create
coverage under this law.
We have extensively deliberated with regard to whether a
new term, other than the term ``substantially limits'' should
be used in this Act. For example, in its ADA Amendments Act,
H.R.3195, the House of Representatives attempted to
accomplish this goal by stating that the key phrase
``substantially limits'' means ``materially restricts'' in
order to convey that Congress intended to depart from the
strict and demanding standard applied by the Supreme Court in
Sutton and Toyota.
We have concluded that adopting a new, undefined term that
is subject to widely disparate meanings is not the best way
to achieve the goal of ensuring consistent and appropriately
broad coverage under this Act. The resulting need for further
judicial scrutiny and construction will not help move the
focus from the threshold issue of disability to the primary
issue of discrimination.
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We believe that a better way is to express our disapproval
of Sutton and Toyota (along with the current EEOC regulation)
is to retain the words ``substantially limits,'' but clarify
that it is not meant to be a demanding standard. In addition,
we believe eliminating the source of the Supreme Court's
decisions narrowing the definition and providing more
appropriate findings and purposes for properly construing
that definition will accomplish our goal without introducing
novel statutory terms.
We believe that the manner in which we understood the
intended scope of ``substantially limits'' in 1990 continues
to capture our sense of the appropriate level of coverage
under this law for purposes of placing on employers and other
covered entities the obligation of providing reasonable
accommodations and modifications to individuals with
impairments. As we described this in our committee report to
the original ADA in 1989:
``A person is considered an individual with a disability
for purposes of the first prong of the definition when [one
or more of] the individual's important life activities are
restricted as to the conditions, manner, or duration under
which they can be performed in comparison to most people. A
person who can walk for 10 miles continuously is not
substantially limited in walking merely because on the
eleventh mile, he or she begins to experience pain because
most people would not be able to walk eleven miles without
experiencing some discomfort. S. Rep. No 101-116, at 23
(1989).''
We particularly believe that this test, which articulated
an analysis that considered whether a person's activities are
limited in condition, duration and manner, is a useful one.
We reiterate that using the correct standard--one that is
lower than the strict or demanding standard created by the
Supreme Court in Toyota--will make the disability
determination an appropriate threshold issue but not an
onerous burden for those seeking accommodations or
modifications. At the same time, plaintiffs should not be
constrained from offering evidence needed to establish that
their impairment is substantially limiting.
Thus, we believe that the term ``substantially limits'' as
construed consistently with the findings and purposes of this
legislation establishes an appropriate functionality test for
determining whether an individual has a disability.
Major Life Activities
The bill provides significant new guidance and
clarification on the subject of major life activities. First,
a rule of construction clarifies that that an impairment need
only substantially limit one major life activity to be
considered a disability under the ADA. This responds to and
corrects those courts that have required individuals to show
that an impairment substantially limits more than one life
activity. It is additionally intended to clarify that the
ability to perform one or more particular tasks within a
broad category of activities does not preclude coverage under
the ADA.
For purposes of clarity, the bill provides an illustrative
list of ``major life activities'' including activities such
as caring for oneself, performing manual tasks, seeing,
hearing, eating, sleeping, walking, standing, lifting,
bending, speaking, breathing, learning, reading,
concentrating, thinking, communicating and working. In
addition, for the first time, the category of ``major life
activities'' is defined to include the operation of major
bodily functions, thus better addressing chronic impairments
that can be substantially limiting. Major bodily functions
include functions of the immune system, normal cell growth,
digestive, bowel, bladder, neurological, brain, respiratory,
circulatory, endocrine and reproductive functions.
Both the list of major life activities and major bodily
functions are illustrative and non-exhaustive, and the
absence of a particular life activity or bodily function from
the list does not create a negative implication as to whether
such activity or function constitutes a ``major life
activity'' under the statute.
Finally, we also want to illuminate one area which may be
easily misunderstood, with respect to individuals with
specific learning disabilities. When considering the
condition, manner, or duration in which an individual with a
specific learning disability performs a major life activity,
it is critical to reject the assumption that an individual
who has performed well academically cannot be substantially
limited in activities such as learning, reading, writing,
thinking, or speaking.
Rules of Construction on the Definition of Disability
The bill further clarifies the definition of disability
with a series of rules of construction. As discussed
elsewhere, the rules of construction specifically require
that the definition of disability be interpreted broadly and
that the term ``substantially limits'' be interpreted
consistent with this legislation. This construction is
also intended to reinforce the general rule that civil
rights statutes must be broadly construed to achieve their
remedial purpose. In addition, the rules of construction
provide that impairments that are episodic or in remission
be assessed in their active state for purposes of
determining coverage under the ADA.
Mitigating Measures
The bill also prohibits consideration of the ameliorative
effects of mitigating measures when determining whether an
individual's impairment substantially limits major life
activities, overturning the Supreme Court's decision in
Sutton and its companion cases. This provision is intended to
eliminate the situation created under current law in which
impairments that are mitigated do not constitute disabilities
but are the basis for discrimination. We expect that when
such mitigating measures are ignored, some individuals
previously found not disabled will now be able to claim the
ADA's protection against discrimination.
The legislation provides an illustrative but non-
comprehensive list of the types of mitigating measures that
are not to be considered. This list also includes low vision
devices, which are devices that magnify, enhance, or
otherwise augment a visual image, such as magnifiers, closed
circuit television, larger-print items, and instruments that
provide voice instructions. The absence of any particular
mitigating measure from this list should not convey a
negative implication as to whether the measure is a
mitigating measure under the ADA.
We also believe that an individual with an impairment that
substantially limits a major life activity should not be
penalized when seeking protection under the ADA simply
because he or she managed their own adaptive strategies or
received accommodations (including informal or undocumented
ones) that have the effect of lessening the deleterious
impacts of their disability.
The bill provides one exception to the rule on mitigating
measures, specifying that ordinary eyeglasses and contact
lenses are to be considered in determining whether a person
has a disability. The rationale behind this exception is that
the use of ordinary eyeglasses or contact lenses, without
more, is not significant enough to warrant protection under
the ADA. Nevertheless, if an applicant or employee is faced
with a qualification standard that requires uncorrected
vision (as the sisters in the Sutton case were), an employer
will be required to demonstrate that the qualification
standard is job-related and consistent with business
necessity.
Regarded As
Under this bill, the third prong of the disability
definition will apply to impairments, not only to
disabilities. As such, it does not require a functional test
to determine whether an impairment substantially limits a
major life activity.
This section of the definition of disability was meant to
express our understanding that unfounded concerns, mistaken
beliefs, fears, myths, or prejudice about disabilities are
often just as disabling as actual impairments, and our
corresponding desire to prohibit discrimination founded on
such perceptions. In 1990 we relied extensively on the
reasoning of School Board of Nassau County v. Arline that the
negative reactions of others are just as disabling as the
actual impact of an impairment. This legislation restates our
reliance on the broad views enunciated in that decision and
we believe that courts should continue to rely on this
standard.
We intend and believe that the fact that an individual was
discriminated against because of a perceived or actual
impairment is sufficient. Thus, the bill clarifies that
contrary to Sutton, an individual who is ``regarded as having
such an impairment'' is not subject to a functional test. If
an individual establishes that he or she was subjected to an
action prohibited by the ADA because of an actual or
perceived impairment--whether the person actually has the
impairment or whether the impairment constitutes a
disability--then the individual will qualify for protection
under the Act.
This provision is subject to two important limitations.
First, individuals with impairments that are transitory and
minor are excluded from eligibility for the protections of
the ADA under this prong of the definition, and second, the
bill relieves entities covered under the ADA from the
obligation and responsibility to provide reasonable
accommodations and reasonable modifications to an individual
who qualifies for coverage under the ADA solely by being
``regarded as'' disabled.
Transitory and Minor
The bill contains an exception that clarifies that coverage
for individuals under the ``regarded as'' prong is not
available where an individual's impairment is both transitory
(six months or less) and minor. Providing this exception
responds to concerns raised by employer organizations and is
reasonable under the ``regarded as'' prong of the definition
because individuals seeking coverage under this prong need
not meet the functional limitation requirement contained in
the first two prongs of the definition. A similar exception
for the first two prongs of the definition is unnecessary as
the functional limitation requirement already excludes claims
by individuals with ailments that are minor and short term.
Accommodations
The bill establishes that entities covered under the ADA do
not need to provide reasonable accommodations under Title I
or modify policies, practices, or procedures under Titles II
or III when an individual qualifies for coverage under the
ADA solely by being ``regarded as'' having a disability under
the third prong of the definition of disability.
Under current law, a number of courts have required
employers to provide reasonable accommodations for
individuals who are
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covered solely under the ``regarded as'' prong. In each of
those cases, the plaintiffs were found not to be covered
under the first prong of the definition of disability
because of the overly stringent manner in which the courts
had been interpreting that prong. Because of our strong
belief that accommodating individuals with disabilities is
a key goal of the ADA, some members continue to have
reservations about this provision. However, we believe it
is an acceptable compromise given our strong expectation
that such individuals would now be covered under the first
prong of the definition, properly applied.
Discrimination on the Basis of Disability
The bill amends Section 102 of the ADA to mirror the
structure of nondiscrimination protection provision in Title
VII of the Civil Rights Act of 1964. It changes the language
from prohibiting discrimination against a qualified
individual ``with a disability because of the disability of
such individual'' to prohibiting discrimination against a
qualified individual ``on the basis of disability.'' This
ensures that the emphasis in questions of disability
discrimination is properly on the critical inquiry of whether
a qualified person has been discriminated against on the
basis of disability, and not unduly focused on the
preliminary question of whether a particular person is a
``person with a disability.''
Rules of Construction
Benefits Under State Worker's Compensation Laws
The bill provides that nothing in the Act alters the
standards for determining eligibility for benefits under
State worker's compensation laws or other Federal or State
disability benefit programs.
Fundamental Alteration
The bill reiterates that no changes are being made to the
underlying ADA provision that no accommodations or
modifications in policies are required when a covered entity
can demonstrate that making such modifications would
fundamentally alter the nature of the service being provided.
This provision was included at the request of the higher
education community and specifically includes ``academic
requirements in postsecondary education'' among the types of
policies, practices, and procedures that may be shown to be
fundamentally altered by the requested modification or
accommodation to reaffirm current law. It is included solely
to provide assurances that the bill does not alter current
law with regard to the obligations of academic institutions
under the ADA, which we believe is already demonstrated in
case law on this topic. Specifically, the reference to
academic standards in postsecondary education is unrelated to
the purpose of this legislation and should be given no
meaning in interpreting the definition of disability.
Claims of No Disability
The bill prohibits reverse discrimination claims by
disallowing claims based on the lack of disability, (e.g., a
claim by someone without a disability that someone with a
disability was treated more favorably by, for example, being
granted a reasonable accommodation or modification to
services or programs). Our intent is to clarify that a person
without a disability does not have the right under the Act to
bring an action against an entity on the grounds that he or
she was discriminated against ``on the basis of disability''
(i.e., on the basis of not having a disability).
Regulatory Authority
In Sutton, the Supreme Court stated that ``[n]o agency . .
. has been given authority to issue regulations implementing
the generally applicable provisions of the ADA which fall
outside Titles I-V.'' The bill clarifies that the authority
to issue regulations is granted to the Equal Employment
Opportunity Commission, the Attorney General, and the
Secretary of Transportation and specifically includes the
authority to issue regulations implementing the definition of
disability as amended and clarified by this legislation.
We anticipate that the agencies charged with regulatory
authority under the ADA will make any necessary modifications
to their regulations to reflect the changes and
clarifications embodied in the ADA Amendments Act, including
the addition of major bodily functions as major life
activities and the broadening of the ``regarded as'' prong.
We also expect that the Equal Employment Opportunity
Commission (EEOC) will revise the portion of its ADA
regulations that defines ``substantially limits'' as ``unable
to perform a major life activity. . . . or significantly
restricted as to . . . a particular major life activity . . .
.'' given the clear inconsistency of that portion of the
regulation with the intent of this legislation.
Conforming Amendment
The bill ensures that the definition of disability in
Section 7 of the Rehabilitation Act of 1973, which shares the
same definition, is consistent with the ADA. The
Rehabilitation Act of 1973 preceded the ADA in providing
civil rights protections to individuals with disabilities,
and in drafting the definition of disability in the ADA, the
authors relied on the statute and implementing regulations of
the Rehabilitation Act. Maintaining uniform definitions in
the two federal statutes is important so that such entities
will generally operate under one consistent standard, and the
civil rights of individuals with disabilities will be
protected in all settings. The ADA, under Title II and Title
III, and Section 504 of the Rehabilitation Act provide
overlapping coverage for many entities, including public
schools, institutions of higher education, childcare
facilities, and other entities receiving federal funds.
We expect that the Secretary of Education will promulgate
new regulations related to the definition of disability to be
consistent with those issued by the Attorney General under
this Act. We believe that other current regulations issued by
the Department of Education Office of Civil Rights under
Section 504 of the Rehabilitation Act are currently
harmonious with Congressional intent under both the ADA and
the Rehabilitation Act.
Conclusion
We intend that that the sum of these changes will make the
threshold definition of disability in the ADA--under which
individuals qualify for protection from discrimination more
generous, and will result in the coverage of some individuals
who were previously excluded from those protections.
We note that with the changes made by the ADA Amendments
Act, courts will have to address whether an impairment
constitutes a disability under the first and second, but not
the third, prong of the definition of disability. The
functional limitation imposed by an impairment is irrelevant
to the third ``regarded as'' prong.
In general, individuals may find it easier to establish
disability under this bill's more generous standard than
under the Supreme Court's demanding standard. To repeat, we
intend this bill to return the legal analysis to the balance
that existed before the Supreme Court's Sutton and Toyota
decisions. The determination of disability is a necessary
threshold issue in many cases, but an appropriately generous
standard on that issue will allow courts to focus primarily
on whether discrimination has occurred or accommodations
improperly refused.
IV. Legislative History and Committee Action
Prior to introduction of the ADA Amendments Act of 2008 on
July 31, 2008 with 55 original cosponsors the following
actions occurred in the 110th Congress.
On July 26, 2007, Senator Tom Harkin introduced S. 1881,
the ADA Restoration Act of 2007 together with Senator Arlen
Specter. Senator Edward Kennedy, the Chairman of the Senate
Health, Education, Labor and Pensions Committee cosponsored
the legislation along with Senator Ted Stevens. The bill was
referred to the Senate Health, Education, Labor, and Pensions
Committee.
Similarly, on July 26, 2007, Representatives Steny H. Hoyer
(D-MD) and James F. Sensenbrenner (R-WI) introduced H.R.
3195, the ADA Restoration Act of 2007, with 144 original
cosponsors. The bill was referred to the House Committees on
Education and Labor, Judiciary, Transportation and
Infrastructure, and Energy and Commerce.
On October 4, 2007, the House Judiciary Committee held a
hearing on H.R. 3195. Six witnesses appeared before the
committee: Honorable Steny Hoyer (D-MD), House Majority
Leader; Cheryl Sensenbrenner, Chair of the Board, American
Association of People with Disabilities; Stephen Orr,
Pharmacist (Plaintiff in Orr v. Wal-Mart); Michael Collins,
Executive Director, National Council on Disability; Lawrence
Lorber, Attorney, on behalf of the U.S. Chamber of Commerce;
Chai Feldblum, Director, Federal Legislation Clinic and
Professor of Law, Georgetown Law Center.
On November 15, 2007, the Senate HELP Committee held a
hearing chaired by Senator Tom Harkin, ``Restoring
Congressional Intent and Protections under the Americans with
Disabilities Act'' Five witnesses appeared before the
committee: John D. Kemp, President, United States
International Council on Disabilities; Dick Thornburgh,
Former United States Attorney General and Counsel,
Kirkpatrick & Lockhart; Steven Orr, Pharmacist (Plaintiff in
Orr v. Wal-Mart), Camille Olson, Labor and Employment
Attorney, Seyfarth & Shaw; Chai Feldblum, Director, Federal
Legislation Clinic and Professor of Law, Georgetown Law
Center.
On January 29, 2008, the House Committee on Education and
Labor held a hearing on H.R. 3195. Five witnesses appeared
before the committee: Honorable Steny Hoyer (D-MD), House
Majority Leader; Andrew Imparato, President and CEO, American
Association of People with Disabilities; Carey McClure,
Electrician (Plaintiff in McClure v. General Motors); Robert
L. Burgdorf, Professor of Law, University of the District of
Columbia; David K. Fram, Director, ADA & EEO Services,
National Employment Law Institute.
On June 18, 2008, the House Committee on Education & Labor
held a markup to consider H.R. 3195. An amendment was offered
as a substitute to the original bill, and it was reported out
of the Committee by a vote of 43 to 1.
On June 18, 2008, the Committee on the Judiciary held a
markup to consider H.R. 3195. An amendment was offered as a
substitute to the original bill, and it was reported out of
the Committee by a vote of 27 to 0.
On June 25, 2008, the United States House of
Representatives held a vote on H.R. 3195 and passed the
legislation by a vote of 402-17.
On July 15, 2008, the Senate HELP Committee held a
Roundtable: ``H.R. 3195 and Determining the Proper Scope of
Coverage for the Americans with Disabilities Act'' Eight
individuals gave testimony before the committee: Samuel R.
Bagenstos, Professor of
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Law, Washington University School of Law; Carey McClure,
Electrician (Plaintiff in McClure v. General Motors); JoAnne
Simon, Disability Rights Attorney; Sue Gamm, Elementary and
Secondary Education Consultant; Terry Hartle, Senior Vice
President, American Council on Education; Chai Feldblum,
Professor, Federal Legislation Clinic, Georgetown University
Law Center, Washington, DC; Michael Eastman, Executive
Director of Labor Policy, U.S. Chamber of Commerce; Andrew
Grossman, Senior Legal Policy Analyst, Heritage Foundation.
On July 31, 2008, Senators Tom Harkin and Orrin Hatch
introduced S. 3406, The ADA Amendments Act of 2008. The bill
was placed on the Senate calendar (under general orders/
pursuant to Rule XVI?).
V. Application of the Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1, the Congressional
Accountability Act (CAA), requires a description of the
application of this bill to the legislative branch. S. 3604
does not amend any act that applies to the legislative
branch.
VI. Regulatory Impact Statement
The managers have determined that the bill may result in
some additional paperwork, time, and costs to the Equal
Employment Opportunity Commission, which would be entrusted
with implementation and enforcement of the act. It is
difficult to estimate the volume of additional paperwork
necessity by the bill, but the committee does not believe it
will be significant. Pursuant to the requirements of
paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate, the committee has determined that the bill will not
have a significant regulatory impact.
VII. Section-By-Section Analysis
Sec. 1. Short Title. This Act may be cited as the `ADA
Amendments Act of 2008.'
Sec. 2. Findings and Purposes. Acknowledges Congressional
intent of the Americans with Disabilities Act of 1990 (ADA)
to ``provide a clear and comprehensive national mandate for
the elimination of discrimination against individuals with
disabilities'' and to provide broad coverage, and that the
U.S. Supreme Court subsequently erroneously narrowed the
definition of disability in a series of cases. The purposes
of the Act are to reinstate a broad scope of protection to be
available under the ADA, to reject several Supreme Court
decisions, and to re-establish original Congressional intent
related to the definition of disability.
Sec. 3. Codified Findings. Amends one finding in the ADA to
acknowledge that many people with physical or mental
impairments have been subjected to discrimination, and
strikes one finding related to describing the population of
individuals with disabilities as ``a discrete and insular
minority.''
Sec. 4. Disability Defined and Rules of Construction.
Amends the definition of ``disability'' and provides rules of
construction for applying the definition. The term
``disability'' is defined to mean, with respect to an
individual, a physical or mental impairment that
substantially limits one or more major life activities, a
record of such impairment, or being regarded as having such
an impairment; provides an illustrative list of `major life
activities' including major bodily functions; and defines
`regarded as having such an impairment' as protecting
individuals who have been subject to an action prohibited
under the ADA because of an actual or perceived impairment,
whether or not the impairment is perceived to limit a major
life activity. Requires the definition of disability to be
construed broadly and consistent with the findings and
purposes. Provides rules of construction regarding the
definition of disability, requiring that impairments need
only limit one major life activity; clarifying an impairment
that is episodic or in remission is a disability if it would
substantially limit a major life activity when active; and
prohibiting the consideration of the ameliorative effects of
mitigating measures such as medication, learned behavioral
modifications, or auxiliary aids or services, in determining
whether an impairment is substantially limiting, while
excluding ordinary eyeglasses and contact lenses.
Sec. 5. Discrimination on the Basis of Disability.
Prohibits discrimination under Title I of the ADA `on the
basis of disability' rather than `against a qualified
individual with a disability because of the disability of
such individual.' Clarifies that covered entities that use
qualification standards based on uncorrected vision must show
that such a requirement is job-related and consistent with
business necessity.
Sec. 6. Rules of Construction. Provides that nothing in
this Act alters the standards for determining eligibility for
benefits under State worker's compensation laws or other
disability benefit programs. Prohibits reverse discrimination
claims by disallowing claims based on the lack of disability.
Provides that nothing in this Act alters the provision in
Title III that a modification of policies or practices is not
required if it fundamentally alters the nature of the service
being provided. Establishes that entities covered under all
three titles of the ADA are not required to provide
reasonable accommodations or modifications to an individual
who meets the definition of disability only as a person
`regarded as having such an impairment.' Authorizes the EEOC,
Attorney General, and the Secretary of Transportation to
promulgate regulations implementing the definition of
disability and rules of construction related to the
definition.
Sec. 7. Conforming Amendments. Amends Section 7 of the
Rehabilitation Act of 1973 to cross-reference the definition
of disability under the ADA.
Sec. 8. Effective Date. Amendments made by the Act take
effect January 1, 2009.
September 11, 2008.
Tom Harkin,
U.S. Senator.
Orrin Hatch,
U.S. Senator.
Mr. HARKIN. Madam President, I am extremely proud to be the chief
sponsor of the ADA Amendments Act of 2008, along with the distinguished
senior Senator from Utah, Senator Orrin Hatch. This bipartisan
legislation will allow us to advance and fulfill the original promise
of the Americans With Disabilities Act, which was signed into law 18
years ago.
I am especially grateful to Senator Hatch for his leadership and for
his friendship through all these years in helping to craft and move
this bill here in the Senate. Senator Hatch was one of the key players
in helping get through the original ADA back in 1989 and 1990 when we
passed it. And in this effort we have here today, he has become a true
partner. I deeply appreciate his willingness to take on this critical
role. I think it is safe to say that without the help and intense
interest of Senator Hatch on this issue, and especially on the whole
ADA process, the bill would not be here today. Again, I am so grateful
to Senator Hatch for his friendship and his support through all of this
long process.
And it has been a long process. We are not here today because we just
met the other day to put this together. It has been a couple of years
or more in the making, and at least over a year of very intense
negotiations with the business community, the disability community, and
others to get to where we are today.
This bill is similar to legislation that was introduced in the other
body by the majority leader, Steny Hoyer, and Congressman Jim
Sensenbrenner of Wisconsin. That bill passed by a 402-to-17 margin in
June, and of course the bill we have here today is going to pass
unanimously.
I am also grateful that from the outset these bills have been
conceived and crafted in a spirit of genuine bipartisanship, with
Members of both parties coming together to do the right thing for
Americans with disabilities. Today, we have nearly 80 Senators
cosponsoring this bill. Of course, passage of the original ADA was also
a bipartisan effort.
As the chief sponsor of that bill in the Senate, I worked very
closely with a great number of people on both sides of the aisle, both
here and in the administration--Senator Bob Dole, of course, and others
on both sides of the aisle. We received invaluable support from then-
President George Herbert Walker Bush and key members of his
administration, including White House counsel Boyden Gray, who worked
so hard to get the original bill through; and Attorney General Richard
Thornburgh, who helped us craft the bill and made sure we did it in the
right way. Dick Thornburgh was so instrumental in that initial passage,
and ever since then, for the last 18 years, I have kept in contact with
Attorney General Thornburgh periodically, talking about the ADA, what
it was doing, how it was being implemented, and of course because of
the recent court decisions, discussing with him how we could get to
this point today and have a bill that would overturn those court
decisions. Former Transportation Secretary Sam Skinner was very
involved in this also.
But I would be remiss if I didn't state forthrightly the one person
through all these years who was the key mover of the Americans With
Disabilities Act of 1990, without whose leadership we could not have
gotten it done, and who enabled this Senator to be the chairman of the
Disability Policy Subcommittee and to get this bill moved through both
subcommittee and committee. He was there from the very beginning to the
end and has never let up in all his years on his interest in and
support of legislation that would fully incorporate people with
disabilities in all aspects of American life. Of course I speak of
Senator Ted Kennedy, the chairman of the HELP Committee, who can't be
here with us today. He is at home in Massachusetts recuperating and
getting better so he can be here with us next year when we take up
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health care reform. But if Senator Kennedy is watching, I wish to say:
Ted, this one is for you. We finally got here. We finally got the bill
up.
I thank Senator Kennedy for all of his help in the last 2 to 3 years
in pulling everything together, and I am going to have more to say
about that at the end when I thank all those wonderful staff members
who helped. But Senator Kennedy has been there from the beginning, in
the 1980s, when we were doing this, and all through the 1990s, to now,
and I am sorry he can't be here with us today. I know he is here with
us in spirit, and that spirit has been strong to get us to this point
today.
I also thank Senator Enzi. Prior to a couple of years ago, he was
chairman of the HELP Committee and was also very interested in helping
to move this legislation along. Since he has been ranking member, he
has also been involved, and his staff involved, in making sure we could
get this bill here today.
The fact is that Americans from all walks of life take enormous pride
in what we have done in the last 18 years since the passage of ADA. No
one wants to go backwards. The ADA was one of the landmark civil rights
statutes of the 20th century, a long overdue emancipation proclamation
for Americans with disabilities. Thanks to that law, we have removed
most physical barriers to movement and access for Americans with
disabilities. We required employers to provide reasonable
accommodations so people with disabilities could have equal opportunity
in the workplace. We have greatly advanced the four goals of the ADA:
equality of opportunity, full participation, independent living, and
economic self-sufficiency.
I think the triumph of the ADA revolution is all around us. I
remember a couple of years ago attending a Washington convention of
several hundred disability rights advocates, many with significant
disabilities. They arrived in Washington on trains and airplanes and
buses built to accommodate people with mobility impairments. They came
to the hotel on Metro and on regular buses, all seamlessly accessible
by wheelchair. They navigated the city streets equipped with curb cuts
and ramps. The hotel where the convention took place was equipped in
countless ways to accommodate all manner of people with all kinds of
disabilities. There were sign language interpreters on the dais so the
people with hearing disabilities could be full participants. And the
list goes on and on. In other words, a kind of seamless approach to
making sure that anyone could participate regardless of their
disability.
For many Americans, these many changes are kind of invisible. We kind
of take them for granted. We take curb cuts for granted and ramps, and
widened doorways for granted. The fact is, every building--think about
this--every building being built in America today is fully accessible,
with a universal design. A universal design. Now, these changes may be
invisible to most people, but for people with disabilities, they are
transforming and liberating. The provisions in the ADA outlawed
discrimination against qualified individuals with disabilities in the
workplace, requiring employers to provide reasonable accommodations.
Again, these are liberating and transforming for people with
disabilities.
But despite all this progress over the last 18 years, we have a
problem. We have a big problem. And the problem arises because of a
series of Supreme Court decisions that have greatly narrowed the scope
of who is protected by the ADA. As a consequence, people with
conditions that common sense would tell us are disabilities are being
told by the courts that they are not in fact disabled and, therefore,
not eligible for the protections of the law. For example, in a ruling
last year, the 11th Circuit Court concluded that a person with an
intellectual disability was not ``disabled'' under the ADA.
When I try to explain to people what the Supreme Court has done, they
are shocked. Impairments that the Court says are not to be considered
disabilities under the law--at least in some cases--include amputation,
intellectual disabilities, epilepsy, multiple sclerosis, diabetes,
muscular dystrophy, cancer, and others.
In three decisions on the same day in June of 1999--what we now know
as the Sutton trilogy--the Supreme Court held that corrective and
mitigating measures must be considered in determining whether an
individual has a disability under the ADA. This is in complete
contradiction to congressional intent as we expressed in our committee
reports.
When we pass laws around here, we don't put every single little thing
in the law; we would have huge bills. What we do is we have committee
reports and findings to instruct the courts as to what our intent
is. We expect the courts to follow them.
In the Senate committee report, here is what we said:
Whether a person has a disability should be assessed
without regard to the availability of mitigating measures,
such as reasonable accommodations or auxiliary aids.
You cannot get much clearer than that. The House report said
basically the same thing. It said:
For example, a person who is hard of hearing is
substantially limited in the major life activity of hearing,
even though the loss may be corrected through the use of a
hearing aid. Likewise, persons with impairments, such as
epilepsy or diabetes, which substantially limit a major life
activity are covered under . . . the definition of
disability, even if the effects of the impairment are
controlled by medication.
That was in our report 18 years ago. The Supreme Court ignored that.
They ignored it.
In the Sutton case, Sutton v. United Airlines, the Supreme Court held
that for persons taking corrective measures to mitigate a physical or
mental impairment, the effect of those measures must be taken into
account when judging whether a person is ``disabled''--and therefore
covered under the law.
That could include anything from visual aids to prostheses.
In Murphy v. the United Parcel Service, the Court applied the same
analysis to medication used to treat hypertension, and concluded an
employee who was fired because he had high blood pressure and
hypertension was not covered because he took medication to alleviate
the symptoms. But, again, in our report, as we said before, that should
not be taken into account.
In the case of Albertsons v. Kirkingburg--we call it the Kirkingburg
case--the Supreme Court went further and declared mitigating measures
to be considered in the determination of whether someone is disabled
included not only artificial aids such as devices and medications but
also subconscious measures that an individual may use to compensate for
his or her impairment. What were they talking about? Kirkingburg was an
individual who was blind in one eye. Through experience and coping with
it, he had been able to compensate for the fact he was blind in one
eye. The Court said subconsciously he was able to compensate for that,
therefore he must not be disabled. People hear this and they say how
could the Supreme Court have decided that?
Last, in another case, the Toyota case, the Court held there must be
a ``demanding standing for qualifying as disabled.'' Again, restricted;
a demanding standard. We have never said that in the ADA bill. We
didn't say that at all.
What has happened is that countless individuals have been excluded
from ADA, even though the general rule of all civil rights laws is they
should be broadly construed to achieve their remedial purposes, and the
ADA is a civil rights statute.
Again, what does all this mean? What this means is the Supreme Court
decisions have led to a supreme absurdity, a Catch-22 situation that so
many people with disabilities find themselves in today. For example,
the more successful a person is at coping with a disability, the more
likely it is the Court will find that they are no longer disabled and
therefore no longer covered under the ADA. If they are not covered
under ADA, then any request that they might make for a reasonable
accommodation can be denied. If they do not get the reasonable
accommodation, they cannot do their job; and they can get fired and
they will not be covered by the ADA and they will not have any
recourse.
Let's look at it this way. If you are disabled and you take
medication or use an assistive device, then you will be able to do your
job, right? If you take the medication, use the assistive device, now
you can do your job, but you will not be covered by the ADA.
[[Page S8350]]
Therefore, if you ask for a reasonable accommodation, the employer will
say: No, you can't do your job, you are fired and, guess what, you go
to court and the court will say: You are not disabled, you use an
assistive device, you take medication. On the other hand, if you do not
take the medication or you do not use an assistive device, you will not
be qualified to do the job.
So what is a person with a disability supposed to do? If I use
medication or use an assistive device, it enables me to become
economically self-sufficient, become independent, become fully
integrated in society. If I take medication or use my assistive device
I can do that, I can get a job. But then I am no longer covered by ADA,
and I can be fired or terminated. I will not get a reasonable
accommodation.
You can see what this has done to so many millions of people with
disabilities. What am I to do? I want to get a job. But I want the
coverage of ADA. But I have to give that up if I use medication or use
an assistive device--an absolute absurdity. This is not what I
intended. It is not what anyone intended when we passed the ADA 18
years ago.
It boggles the mind that any court would say that multiple sclerosis,
muscular dystrophy or epilepsy is not a disability covered by the ADA,
but that is where we are today. Think about the troops coming home from
Iraq, losing limbs, getting prostheses. The Court might find they are
not disabled. If they might need some reasonable accommodations to get
a decent job, the Court would find they are not covered by the
Americans with Disabilities Act.
As a result, we have to have this bill, and that is what this bill is
all about. This bill is about restoring the Americans with Disabilities
Act back to where we intended it to be 18 years ago and to give clear
directions to the courts about how they should decide these cases. This
bill will overturn the so-called Sutton trilogy and Toyota v. Williams
and will give clear direction to the courts on exactly what we mean. It
will restore the proper balance, it will clarify and broaden the
definition of disability, it will increase eligibility for the
protections of the ADA.
People who are denied coverage under ADA will now be covered, and we
will get rid of that Catch-22 situation that confronts so many people
right now with disabilities.
I tell you, this is extremely important in the employment context.
According to most recent data, more than 60 percent of individuals with
disabilities are not employed. That is shameful, in our society, that
we have an unemployment rate among people with disabilities of 60
percent. These are people who want to work, who are capable of work.
They want to go out and become fully functioning members of society and
contribute to society. All they need is the opportunity.
I can tell you employers find people with disabilities are sometimes
the most exemplary of workers. All they need is the opportunity, a
reasonable accommodation, and they can do their job. This bill before
us today renews our promise to all Americans with disabilities. We
basically say we keep the basic language of the original bill, but we
also make sure the bill overturns the basis for the reasoning in the
Supreme Court decisions--as I said, the Sutton trilogy and Toyota case
that has been so problematic.
We clearly state mitigating measures--such as the medication or
assistive devices I talked about earlier--are not to be considered in
determining whether someone is entitled to the protections of the ADA.
No longer is it report language. We put this in bill language so the
Supreme Court can't skirt around it again.
The bill will make it easier for people with disabilities to be
covered. It expands the definition of disability to include many more
life activities, including a new category of major body functions. The
latter point is important for people with immune disorders or cancer or
kidney disease or liver disease because they no longer need to
show what specific activity they are limited in, in order to meet the
statutory definition of disability. The bill rejects the current EEOC
regulation which says that ``substantially limits'' means
``significantly restricted'' as too high a standard. We indicate
Congress's expectation that the regulation be rewritten in a less
stringent way and we provide the authority in this bill to do so.
The bill also revives the ``regarded as'' prong of the definition of
disability. It makes it easier for those who suffer from discrimination
because of a perceived disability to be able to seek relief if they
have been fired or subjected to another adverse action. We also say the
definition of disability is to be interpreted broadly, to the maximum
extent permitted by the ADA.
Again, this bill will give clear direction, of course, as to exactly
what we intend: A broad definition, more people covered, and getting
rid of that problem of having that Catch-22 situation.
Eighteen years ago, the Americans with Disabilities Act passed with
overwhelming bipartisan support, and I am proud to say we have that
same level of support today in passing this unanimously. I am grateful
for the bipartisan spirit with which we have considered this bill. We
have an opportunity to come together to make an important difference
for millions of Americans with disabilities.
I might say the bill enjoys strong support in the country. I have a
letter I will submit for the Record from over 250 business, faith,
disability, labor, and military organizations that support this bill
and urge its passage.
Madam President, I ask unanimous consent that letter be printed in
the Record at the conclusion of the statements of both mine and Senator
Hatch.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See Exhibit 1.)
Mr. HARKIN. The bill is supported by all the national disability
organizations as well the U.S. Chamber of Commerce, the National
Association of Manufacturers, the Society for Human Resource
Management, and the Human Resources Policy Association.
The genesis of the legislation is a result of direct conversations
between the disability and business communities that should serve as a
model for other legislative efforts.
I wish to say, there were a lot of negotiations that went on between
disability groups, the Chamber of Commerce, the Human Resource Policy
Association, National Association of Manufacturers, other business
groups. They were long. They were involved. They were tough
negotiations. There was a lot of give and take. I think that is the way
we have to do things.
To those who say we cannot get anything done around here, I point to
this bill. We can get things done around here as long as people of good
will are willing to work together. It may take a little time. Sometimes
good things take a little time. It takes a lot of negotiations,
reaching across the aisle, reaching across to one another, and we can
reach these kind of agreements. We can move this country forward, and
we can make American society more fair and just and accommodating for
all.
I have two last things. I wish to take a moment to recognize our
veterans with disabilities. This bill we have before us renews our
commitment to ensure that all Americans with disabilities, including a
new generation of disabled veterans who are just beginning to grapple
with the challenges of living to their full potential, despite any
limitations imposed by the disabilities, are able to participate to the
fullest possible extent in all facets of society, including the
workplace. They deserve equality, access, and opportunity.
I would like to submit for the Record a letter from 23 veterans
groups supporting this legislation. I ask unanimous consent it be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Veterans for ADA Restoration,
Silver Spring, MD, September 9, 2008.
Re Support for new ADA Amendments Act of 2008. S. 3604
Hon. Tom Harkin,
U.S. Senate,
Washington, DC.
Hon. Orrin Hatch,
U.S. Senate,
Washington, DC.
Dear Senators Harkin and Hatch: When a disabled veteran
recovers enough to return to the workforce, it's a slap in
the face to run into employment discrimination. That is why
we salute you for your leadership in sponsoring S. 3406 to
restore the protections of the Americans with Disabilities
Act (ADA) that have been eroded by the courts.
As leaders of organizations that represent men and women
who have served honorably
[[Page S8351]]
in our nation's military, we are proud to support the Senate
version of the ADA Amendments Act of 2008 (S. 3406).
This revised ADA bill has broad bipartisan support and the
support of an unusual coalition of business, disabilities,
civil rights and veterans/military groups who are working
together to reverse narrow court interpretations of the ADA
that had deprived people with many kinds of disabilities from
ADA protection.
It confirms that veterans and other people with
disabilities should not lose their civil rights because their
conditions can be managed with mitigating measures such as
medication, prosthetics and therapy, and assistive
technology.
The honorable men and women who have become disabled in the
service of our country deserve our support in every way.
Often the best healing agent for both mind and body is to
return to the workforce with a decent job at a living wage.
This bill will help make sure they are protected from
unlawful discrimination.
Disabled veterans have already sacrificed so much. The very
least we owe our disabled veterans is to make sure they have
a remedy when they face discrimination in the workplace
because of their disability. It is the patriotic duty of all
Americans to protect these patriots against this indignity.
Again, thank you for your leadership in sponsoring the ADA
Amendments Act, S. 3406.
Sincerely,
Paul J. Tobin, President and CEO, United Spinal
Association; John Rowan, National President, Vietnam
Veterans of America; Joseph Violante, National
Legislative Director, Disabled American Veterans; Randy
L. Pleva, Sr., President, Paralyzed Veterans of
America; Lawrence Schulman, National Commander, Jewish
War Veterans of the USA; John ``JP'' Brown III,
National Commander, AMVETS.
Hershel W. Gober, Legislative Director, Military Order of
the Purple Heart; Julie Mock, President, Veterans of
Modern Warfare, Inc.; Michael M. Dunn, President & CEO,
Air Force Association; VADM Norbert R. Ryan, Jr., USN
(Ret.), President, Military Officers Association of
America; Thomas Zampieri, Ph.D., Director of Government
Relations, Blinded Veterans Association; Joseph A.
Wynn, II, Legislative Director, National Association
for Black Veterans.
Beth Moten, Legislative and Political Director, American
Federation of Government Employees; Rick Jones,
Legislative Director, National Association for
Uniformed Services; Todd Bowers, Director of Government
Affairs, Iraq and Afghanistan Veterans of America; Lupe
G. Saldana, National Commander Emeritus, American GI
Forum of the U.S; MSG Michael P. Cline, USA (Ret),
Executive Director, Enlisted Association of the
National Guard of the United States; Patricia M.
Murphy, Executive Director, Air Force Women Officers
Associated.
Richard M. Dean, CMSgt (Ret), Chief Executive Officer,
Air Force Sergeants Association; Daniel I. Puzon,
Legislative Director, Naval Reserve Association;
Richard C. Schneider, Executive Director of Government
Affairs, Non-Commissioned Officers Association; Dennis
M. Cullinan, Director, National Legislative Service,
Veterans of Foreign Wars; Lani Burnett, CMSgt. USAF
(Ret.), Executive Director, Reserve Enlisted
Association.
Mr. HARKIN. I last would like to thank those who helped us get to
this day, including those who are no longer with us. My friend, Justin
Dart, who was so instrumental in helping us get the ADA passed. We are
fortunate that his wife Yoshiko continues to carry on his legacy, day
after day, week after week, year after year. Ed Roberts, the father of
the Independent Living movement, whose work and vision live on.
And all the disability advocates and people with disabilities who
have been so dedicated to the goals of the ADA, without whose hard work
and dedicated efforts today would not have been possible--people such
as Jim Ward and his family, who dedicated almost 2 years of their lives
traveling on a bus around the country to every State, showing people
about the importance of restoring the protections of ADA. Bob Kafka of
ADAPT, who was so instrumental in passage of the ADA, and who has
dedicated his life to fulfilling the goals of the ADA.
I wish to say a special thank-you to Jennifer Mathis of the Bazelon
Center for her practical and practiced advice; Sandy Finucane of the
Epilepsy Foundation; of course to Andy Imparato of the American
Association of People With Disabilities for always being there in that
leadership position--for his level-headed leadership, for bringing
different groups together, and sometimes that is like herding cats to
get all of us together. Andy did a great job in making sure we were
always there and making sure we had our conferences and negotiations
and keeping us all headed in the same direction. So to Andy Imparato I
give my highest thanks and my deepest thanks for all of his
helpfulness.
Thanks to Nanzy Zirkin of the Leadership Conference on Civil Rights;
and to Professor Chai Feldblum of the Georgetown Law Center for
creative and innovative thinking, for always being willing to testify
before our committee.
Thanks to Randy Johnson and Mike Eastman of the U.S. Chamber of
Commerce; to Mike Peterson of the H.R. Policy Association; to Jeri
Gillespie of the National Association of Manufacturers; and to Mike
Aitken of the Society of Human Resource Management.
Thanks to our key staff members: Tom Jipping and Chris Campbell of
Senator Hatch's staff--great to work with--and Lee Perselay, Beth
Stein, and Pam Smith of my own staff. Again, they have worked
tirelessly on this day after day.
I wish to thank the House committee staff, Sharon Lewis and Heather
Sawyer, and Leader Hoyer's staff, Keith Abouchar and Michelle
Stockwell, as well as a wish for them to make quick work of passing
this bill when it gets over to the House.
Of course, I also thank the staff of the HELP Committee, the
chairman's staff, Michael Myers, Connie Garner, and Charlotte Burrows,
and Brian Hayes with Ranking Member Enzi.
I thank my colleagues on both sides of the aisle who have supported
this bill in overwhelming numbers and made it possible to pass the bill
and hopefully get it signed into law and advance the original intent of
the original Americans with Disabilities Act.
You know, there may not be a lot of people here on the floor of the
Senate today, but I can tell you, though, throughout the country there
are millions of Americans with disabilities who know what we are doing
here. They have been told. They know what we have done over the last
couple or 3 years to overturn those Supreme Court decisions. They are
waiting anxiously for this bill to be passed, for the House to pass it,
and for President Bush to sign it into law so that once again they can
go out with full knowledge that they are covered by this civil rights
bill, that they can go out and seek employment, that they can travel,
that they can seek the accommodations that will make them fully
functioning members of our society and knowing that they are covered by
the law. So there are millions of Americans with disabilities and their
families all over this country today who I know are expressing thanks
to all the people who have been involved in getting this done. Again,
so many are not here with us today. They know what we are doing, and
they are anxiously waiting for this to pass and to get it to the
President, and hopefully we will get that done--hopefully by next week.
The last thing was--I thanked a lot of people, but I would be remiss
if I did not thank the one person who more than any other set my feet
on this course many years ago, who taught me a lot about being
disabled, and who taught me a lot about discrimination against people
with disabilities. And, of course, I speak of my brother, Frank.
He was here when we passed the original ADA, but he has since passed
on. But it was my brother who first said to me many years ago when he
was sent to the Iowa School for the Deaf--they called it the Iowa
School for the Deaf and Dumb--he said, ``I may be deaf, but I am not
dumb.'' It was also my brother who one time said to me that the only
thing deaf people cannot do is hear. He wanted to do a lot of things in
his life, but because of prejudices, because of discrimination, he was
held back and discriminated against. I saw it time after time after
time. He was able to persevere and carve out a life of independence and
dignity for himself, but I often thought, why did he have to do that? I
mean, why did it require an extraordinary effort on his part just to be
a contributing member of our society, just to enjoy a lot of things we
take for granted?
So I thought so much about that. I thought, you know, if I ever got
in a position to do anything about it, I was going to do something.
Well, as fortune would have it, I was elected to the House and then
later elected to the
[[Page S8352]]
Senate and found myself as chairman of the Disability Policy
Subcommittee under the tutelage of Senator Kennedy. We were able to get
the first ADA act passed.
I have to tell you a story here, just talking about discrimination. I
was sworn into the Senate in January of 1985. I had my brother, Frank;
he along with my whole family was here sitting up there in the gallery
right back here. I had provided for an interpreter to interpret for my
brother as he was watching the proceedings here on the floor of the
Senate. Well, then a policeman came out. Actually, one of my brothers
said: The policemen are up there and asked the interpreter to leave
because she could not be there. I went up to the gallery. I am about to
get sworn into the Senate.
I went up to find out what was going on.
The officer said: We cannot let people up in the gallery stand up and
do this interpreting.
I said: Why not?
He said: It is against the rules.
What rules?
Well, it is against the rules.
Well, I was furious. So I came down on the floor, and in 1985, you
might remember the Senate majority leader was Senator Bob Dole. So I
went right to Dole and I said: Senator Dole, here is my problem. I got
my brother up there, and they won't let an interpreter interpret.
He said: Really? Well, I will take care of that.
And he took care of it. He took care of it. So we got an interpreter.
Of course, now we have closed captioning and all kinds of things now
for Senate activities. But, again, it is just that attitude people
have. This was in 1985. That would not happen today. Of course, we have
access for people who have mobility disabilities to come in, and we
have made the Capitol accessible for people with all kinds of
disabilities.
But I relate that story as a way of again thanking my brother, Frank,
for setting my feet on this path so many years ago. For me, it has been
a labor of love, not without its frustrations, not without saying--one
day at the Supreme Court, with Bob Dole by my side, listening to the
Supreme Court hand down one of these decisions, I said: What could they
possibly be thinking? We went out and talked to the press after,
Senator Dole and I did. So it has had its frustrations.
We are not to the promised land yet with 60 percent unemployment
among people with disabilities. We have a long way to go. But this, the
Americans with Disabilities Act, is the civil rights statute that says
to people: You cannot discriminate. Just as we passed the civil rights
bills that said: You cannot discriminate on the basis of race or sex or
national origin or religion, now you cannot discriminate on the basis
of disability either, plus you have to take some other steps; we have
to have reasonable accommodations. So this is the civil rights statute
that emancipates and frees people with disabilities so they can be
fully contributing members of our society.
I close my remarks by thanking the President for her indulgence, the
indulgence of other Senators for permitting me to speak for so long. As
I said, this, for me, for all of my adult life, is a cause to which I
have committed myself, much of my staff, much of our time and effort. I
am grateful to the leadership of the Senate, both on the Republican and
Democratic side, and again to my great friend and partner Senator Hatch
for making it possible for us to bring up this bill today and get it
passed unanimously. Unanimously. That is even better than what we did
with the ADA. We only had six votes against it in 1990. This is
unanimous. I think it sends a clear signal that whether you are
Republican or Democratic, it does not make any difference--it does not
make any difference, we are going to stand behind people with
disabilities. We are going to make sure the ADA takes its rightful
place once again as the umbrella civil rights statute for all Americans
with disabilities.
I thank all of my colleagues. I look forward to the passage of this
bill in the House. I look forward to the President hopefully signing it
as early as next week.
August 21, 2008
Exhibit 1
Re: The ADA Amendments Act of 2008
Hon. Tom Harkin,
U.S. Senate,
Washington, DC.
Dear Senator Harkin: The undersigned groups, representing a
broad range of interests, write in support of the ADA
Amendments Act of 2008 (S. 3406). This bill introduced on
July 31, 2008, had 64 cosponsors as of August 1, with 55 of
those joining as original cosponsors.
S. 3406, the ADA Amendments Act, would revise the ADA, in a
manner designed to work for both people with disabilities and
for entities governed under the law. The bill is a result of
sustained efforts between Senators from both sides of the
aisle and intensive and thoughtful talks between
representatives of the disability community and entities
governed by the law. For that reason, we believe that S. 3406
strikes a delicate balance between the needs of individuals
with disabilities and the realities experienced by entities
including employers and public accommodations, which are
covered under the law.
We urge your support in making enactment of S. 3406, the
ADA Amendments Act, a reality as soon as Congress returns to
work in September. We stand ready to work with you towards
that end.
Sincerely,
ABC Business Services, Illinois; Abilities in Motion,
Pennsylvania; ADA Watch/National Coalition for
Disability Rights; ADA Help, Inc., Florida; Air Force
Association; Air Force Sergeants Association; Air Force
Women Officers; Associated Alliance of Disability
Advocates Center for Independent Living, North
Carolina; Alpha-1 Association; Alpha-1 Foundation; ALS
Association; Alzheimer's Association; American
Association for Affirmative Action; American
Association for Respiratory Care; American Academy of
Nursing; American Association of Diabetes Educators;
American Association of People with Disabilities
(AAPD); American Association of University Women;
American Autoimmune Related Diseases Association;
American Bakers Association; American Cancer Society
Cancer Action Network; American Civil Liberties Union
(ACLU); American Composites Manufacturers Association;
American Council of the Blind; American Diabetes
Association; American Federation of Government
Employees--Veterans Council.
American Federation of Labor--Congress of Industrial
Unions (AFL-CIO); I American Federation of State,
County & Municipal Employees (AFSCME); American
Federation of Teachers (AFT); American Foundation for
the Blind; American Foundry Society; American GI Forum;
American Islamic Congress; American Jewish Committee;
American Kidney Fund; American Liver Foundation;
American Lung Association; American Medical Rehabilitation
Providers Association; American Mental Health Counselors
Association; American Physical Therapy Association;
American Psychological Association; American Society of
Employers; AMVETS; ANCOR; Anixter Center, Illinois; Anti-
Defamation League; APEERS (Alternative Peer Edu/Enrichment
Recovery Society), West Virginia; APSE: The Network on
Employment; Arab Anti-Discrimination Committee; The Arc of
Tucson, Arizona; The Arc of the United States.
The Arc of Utah; Arthritis Foundation; ARISE, New York;
Asian American Justice Center; Associated Builders and
Contractors, Inc.; Association of Jewish Family &
Children's Agencies; Association of Programs for Rural
Independent Living (APRIL); Association of University
Centers on Disabilities (AUCD); Asthma and Allergy
Foundation of America; Autism Society of America; The
Autistic Self-Advocacy Network; AZ Bridge to
Independent Living; Bazelon Center for Mental Health
Law; BH Electronics, Inc.; Bimba Manufacturing; B'nai
B'rith International; Brain Injury Association of
America; Breast Cancer Network of Strength; Business
and Institutional Furniture; Manufacturers Association;
Capital Associated Industries, Inc.; Care4Dystonia,
Inc.; Central Conference of American Rabbis; Center for
Women Policy Studies; Children and Adults with
AttentionDeficit/Hyperactivity Disorder; Christopher
and Dana Reeve Foundation.
The Christian Church (Disciples of Christ) in the United
States and Canada; CIGNA Corporation; Coastal Health
District, Georgia; Coleman Global Telecommunications,
LLC; Community Action Partnership; Community Health
Charities of America; Community Resources for
Independent Living, California; Control Technology,
Inc.; COPD Foundation; Council of Parent Attorneys and
Advocates; Council of State Administrators of
Vocational Rehabilitation (CSAVR); Crohn's and Colitis
Foundation of America; Disabled American Veterans;
Disability Policy Consortium, Inc.; Disability Rights
Wisconsin (WI P&A); DTE Energy Company; Easter Seals;
Eastman Chemical; Ellwood Group Inc.; Enlisted
Association of the National Guard of the United States;
Epilepsy Foundation; Evangelical Lutheran Church in
America; Freedom Resource Center for Independent
Living, Minnesota; Freedom Resource Center for
Independent Living, North Dakota; Friends Committee on
National Legislation;
[[Page S8353]]
Friends of the National Institute of Dental, and
Craniofacial Research.
Georgia Voice That Count; Granite State Independent
Living; Guide Dog Foundation for the Blind, Inc.;
Hearing Loss Association of America; Hearing Loss
Association of America, Manhattan Chapter; Hearing Loss
Association of America, Mid Hudson Chapter; Hearing
Loss Association of America, North Shore Chapter of
Long Island; Hearing Loss Association of America,
Queens at Lexington; Hearing Loss Association of
America, Western New York Chapter; Heat Transfer
Equipment Company; Higher Education Consortium for
Special Education; Hindu American Foundation; HR Policy
Association; Human Rights Campaign; Huntington's
Disease Society of America; Hydrocephalus Association;
Idaho State Independent Living Council; Illinois
Manufacturers' Association; International Association of
Official Human Rights Agencies; International Franchise
Association; International Paper Company; Iraq &
Afghanistan Veterans of America; Islamic Society of North
America; Japanese American Citizens League; Jewish Council
for Public Affairs.
Jewish Reconstructionist Federation; J.T. Fennell Co.;
Koller-Craft Plastic Products; Lakeside Equipment
Corporation; The LAM Foundation; Lambda Legal; Lawyers'
Committee for Civil Rights Under Law; Leadership
Conference on Civil Rights (LCCR); Learning
Disabilities Association of America (LDA); The Leukemia
& Lymphoma Society; Life, Inc., Georgia; Liz Thurber
Slipcovers; Lupus Foundation of America; The Management
Association of Illinois; Manufacturer & Business
Association (Erie, PA); March of Dimes; Mental Health
America; Michigan Alliance of State Employees with
Disabilities (Michigan ASED); Michigan Chapter of
Paralyzed Veterans; Michigan Rehabilitation
Association; Military Officers Association of America;
Molded Fiber Glass Companies; Monadnock Paper Mills,
Inc.; Motorola; Mullinix Packages, Inc.
Muslim Public Affairs Council; Myasthenia Gravis
Foundation of America; NAACP Legal Defense &
Educational Fund, Inc.; National Advocacy Center of the
Sisters of the Good Shepard; National Alliance on
Mental Illness (NAMI); National Alopecia Areata
Foundation; National Association for the Advancement of
Colored People (NAACP). National Association for Black
Veterans; National Association for Employment of People
who are Blind (NAEPB); National Association for
Uniformed Services; National Association of Councils on
Developmental Disabilities; National Association of
County Behavioral Health and Developmental Disability
Directors; National Association of Governors'
Committees on People with Disabilities (NAGC); National
Association of Human Rights Workers; National
Association of Manufacturers; National Association of
the Physically Handicapped (Manistee County Chapter);
National Association of Social Workers; National
Association of State Directors of Special Education;
National Association of State Head Injury
Administrators; National Association of the Deaf;
National Center for Learning Disabilities (NCLD);
National Congress of Black Women, Inc.; National
Council for Community Behavioral Healthcare; National
Council of Churches in the USA.
National Council of Jewish Women; National Council of La
Raza (NCLR); National Council on Independent Living
(NCIL); National Disability Rights Network (NDRN);
National Down Syndrome Congress; National Down Syndrome
Society; National Education Association (NEA); National
Employment Lawyers Association; National Fair Housing
Alliance; National Family Caregivers Association;
National Federation of Filipino American Associations
(NaFFAA); The National Foundation for Ectodermal
Dysplasias; National Health Council; National Health
Law Program; National Industries for the Blind (NIB);
National Kidney Foundation; National Legal Aid and
Defender Association; National Marfan Foundation; National
Multiple Sclerosis Society; National MS Society, Hawaii
Chapter; National Organization for Women; National
Organization on Fetal Alcohol Syndrome (NOFAS); National
Psoriasis Foundation; National Women's Law Center; Naval
Reserve Association; NCEP Brain Injury Rehabilitation
Program, Nevada.
NETWORK: A National Catholic Social Justice Lobby;
Nevadans for Equal Access, Inc.; New Jersey Protection
and Advocacy; NISH; Non-Commissioned Officers
Association; Northeast Pennsylvania Manufacturers and
Employers Association; Northwestern Mutual; Ohio
Disability Action Coalition; Oregon Family Support
Network; Organization of Chinese Americans;
Osteogenesis Imperfecta Foundation; Our Children Left
Behind; The Paget Foundation; Paralyzed Veterans of
America; Parent Project Muscular Dystrophy; People
Escaping Poverty Project, Minnesota; People First of
Nevada; Portland General Electric; PPG Industries;
Precision Metalforming Association; Presbyterian Church
(USA), Washington Office; Prevent Blindness America;
Reserve Enlisted Association; RESOLVE: The National
Infertility Association.
RTC Paratransit Evaluation Services, Nevada; Roaring
Spring Blank Book Co.; Ryder System, Inc.; SEIU--
Service Employees International Union; Self-Advocacy
Association of New York State, Inc.; Services for
Independent Living, Missouri; Sikh American Legal
Defense and Education Fund (SALDEF); Sjogren's Syndrome
Foundation; Society for Human Resource Management;
Southeast Kansas Independent Living Resource Center,
Inc. (SKIL); Southern Champion Tray LP; Spina Bifida
Association; State of Nevada TBI Advisory Council;
Stuller, Inc.; The Taylor-Winfield Corporation; Teacher
Education Division of the Council for Exceptional
Children; Texas Association of the Deaf; Textile Rental
Services Association of America; Ultra Tech Machinery
Inc.; United Cerebral Palsy; United Cerebral Palsy of
Central Ohio; United Church of Christ, Justice and
Witness Ministries; United Food and Commercial Workers
International Union; United Methodist Church, General
Board of Church and Society.
Union for Reform Judaism; Unitarian Universalist
Association of Congregations; United Jewish
Communities; United Spinal Association; Uniweld
Products Inc.; U.S. Chamber of Commerce; U.S.
Conference of Catholic Bishops; U.S. Psychiatric
Association; U.S. Psychiatric Rehabilitation
Association; US TOO International; Vanamatic Company;
Veterans of Foreign Wars of the United States; Veterans
of Modern Warfare; Vietnam Veterans of America; West
Suburban Access News Association; Wisconsin
Manufacturers & Commerce; Women of Reform Judaism; The
Workmen's Circle/Arbeter Ring; World Institute on
Disability.
Mr. HATCH. Madam President, this is an important day in our ongoing
effort to expand opportunities for individuals with disabilities to
participate in the American dream.
Passage of the ADA Amendments Act establishes that the Americans with
Disabilities Act will continue to help change lives. Nearly two decades
ago, Senator Harkin and I stood on this same Senate floor as partners
in this cause. Of course, my good friend from Iowa, Tom Harkin, has
been a great leader in this area, and others as well.
In 1990, we worked together to produce a compromise that passed the
Congress overwhelmingly. We stand here again today to do the same
thing.
Why did we need to do this? The Americans with Disabilities Act
defines a disability as an impairment that substantially limits a major
life activity. It prohibits discrimination on the basis of a present,
past, or perceived disability.
As the ADA was put into practice and used in actual cases, the courts
had to construe and apply its meaning. In Sutton v. United Airlines,
the Supreme Court said that impairments must be examined in their
mitigated state to determine whether they constitute a disability.
In Toyota v. Williams, the Court said the definition of
``disability'' must be interpreted strictly to create a demanding
standard for qualifying as disabled.
These decisions had the effect of narrowing the ADA's coverage and
the protection it affords. Some explain these decisions by saying that
the Court ignored what Congress intended in the Americans with
Disabilities Act. Others explained them by saying the Court had to
reconcile everything Congress said in the ADA.
Either way, when it comes to legislation, when Congress does not like
something, Congress can change it, and that is what we are doing today.
The authority over Federal disability policy remains right here with
the Congress, and it is our responsibility to establish, change,
expand, redirect, or amend it whenever and however we see fit. That is
what we are doing today with this bill.
The bill we pass today is the third and final round of a long process
that started more than a year ago.
First came the introduction of the ADA Restoration Act, then passage
of the House ADA Amendments Act--wonderful work done by our colleagues
in the House--and now passage of the Senate ADA Amendments Act.
Stakeholders, including disability, business, and education groups
contributed to this process. House and Senate
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committees held hearings, and staff participated in what no doubt
seemed at times as endless rounds of negotiation.
The result is a true compromise that establishes more generous
coverage and protection under the ADA in a way that maximizes consensus
and minimizes unintended consequences.
First, the bill removes what the Supreme Court said led it to
narrowly construe the ADA in the first place. Congress stated in the
ADA that there are 43 million Americans with disabilities. The Supreme
Court treated this as a cap and answered the questions regarding
mitigating measures and the standard for applying the disability
definition to fit under that cap.
Removing that finding removes the cap and allows the Court to
construe and apply the definition more generously.
Secondly, the bill lowers the threshold for determining when an
impairment constitutes a disability without using new undefined terms.
Removing the finding that served to raise that threshold and using
more appropriate findings and purpose language to explain its meaning
made departing from the ADA's existing definitional language
unnecessary.
Third, the bill directs that the definition of disability be
construed in favor of broad coverage. This reflects what courts have
held about civil rights statutes in general and what courts held about
the ADA in particular before the Toyota decision; namely, that they
should be broadly construed to effect their remedial purpose.
I was not comfortable with the open-ended rule of broad construction
in the House bill. The rule in our bill parallels a similar provision
in the Religious Land Use and Institutionalized Persons Act, a bill I
introduced and the Senate unanimously passed in 2002.
Fourth, the bill does what the ADA did not by prohibiting
consideration of mitigating measures. The committee reports on the ADA
say mitigating measures should be ignored, but the ADA itself does not.
Courts consult committee reports to clarify ambiguous statutory
language but cannot use those reports as a substitute for nonexistent
statutory language. So we make it clear that with the exception of
eyeglasses and contacts impairments are to be considered in their
unmitigated state when determining whether they are disabilities.
Fifth, the bill makes the current prohibition of discrimination on
the basis of being regarded as having a disability apply to the broader
category of impairments. I have to say this is a significant step
because individuals will no longer have to prove they have a disability
or that their impairment limits them in any way.
The bill balances this by limiting the remedies available under this
provision. This is a good example of how we work to balance the impact
of the bill and to accommodate the interests of the parties affected by
it.
Finally, we tried to minimize the impact this bill would have in the
educational arena. While the issues that made this legislation
necessary arose in the employment context, any change we make could
impact educators. So we affirmed in this bill what the courts have
already ruled, that institutions of higher education are not required
to fundamentally alter educational standards when providing reasonable
accommodations to students with disabilities.
This bill is supported by hundreds of groups on both the disability
and business side and by dozens of veterans organizations.
We introduced this bill on July 31 with 55 original cosponsors, and
as of today that number tops 70, more than the original ADA. More than
two-thirds of the Democratic and Republican caucuses have cosponsored
this legislation, and I believe everyone else is for it as well.
This is a great achievement that continues the tradition of the
Rehabilitation Act of 1973 and the ADA in 1990 in removing barriers and
increasing opportunities for our fellow citizens with disabilities.
The work was long and hard. Many pieces had to be put in the right
place for this puzzle to become clear. But the picture that resulted is
beautiful indeed.
Our commitment, our obligation, our promise did not end with the ADA,
and it will not end with today's passage of the ADA Amendments Act.
I want to particularly thank my friend and colleague, Senator Harkin,
for his continuing leadership, as well as Chairman Kennedy. He cannot
be here today mainly because he is mending up there in Massachusetts. I
just chatted with him again yesterday. But he deserves a lot of credit
on this bill. Of course, also deserving great credit is the ranking
member of the Health, Education, Labor, and Pensions Committee, Senator
Enzi, for his support of this bill and for the facilitation of this
development, and others as well. All the cosponsors deserve a great
deal of credit on this bill.
I want to particularly thank staff members who labored long and hard,
including Tom Jipping on my staff, Chris Campbell on my staff, and
Michael Madsen on my staff, and Lee Perselay, Pam Smith, and Beth Stein
on Senator Harkin's staff. This bill would not have come along as well
as it has without these wonderful staff people who worked so long and
prodigiously to help make this work.
There were times when people thought that divergent interests and
diverse viewpoints simply could not be reconciled, especially in this
area. They thought the same thing back in 1990. Since we came together
then to produce the ADA, I knew we would ultimately come together now
to produce the ADA Amendments Act, and we did.
I know this will make a real difference in the lives of real people,
and for that I am humbled and grateful.
When we argued the original Americans With Disabilities Act on this
floor, I mentioned how I carried my brother-in-law, Raymon Hansen, in
my arms through the Los Angeles temple of the Church of Jesus Christ of
Latter-Day Saints. He weighed very little. He had to go home to an iron
lung every night. This young man, who was an athlete in both high
school and college, and a great athlete at that, got both types of
polio, yet he finished his undergraduate degree in education and went
on and got a master's degree in engineering. He worked at Edgerton,
Germeshausen & Greer, one of the great engineering firms, and he worked
every day, right up until the day he died.
I have to admit I have been in the presence of so many people who
have disabilities, major disabilities, who suffer long and hard, but
who have more courage, more ability, and more verve than a lot of us
who are not suffering from disabilities.
I know Senator Harkin mentioned his brother and others, and I am sure
he will do that again today. I have a great deal of affection for
Senator Harkin, and I had it before this bill back in 1990, but I have
certainly had it even more greatly since. He is a good man, and he has
a great desire to do what is right in this area, and so do I.
There are millions and millions of people with disabilities who can
be very good, functioning members of our society and who will benefit
from this bill, and I personally express my gratitude to all of the
cosponsors, but especially to Senator Harkin, Senator Kennedy, and
Senator Enzi. These are great people who are trying to do great things
here, and for a very bad election year, this is one of the greatest
things we will have done in this whole year. For that, I am truly
grateful.
I yield the floor.
(At the request of Mr. Reid, the following statement was ordered to
be printed in the Record.)
Mr. KENNEDY. Madam President, I strongly support the Americans
with Disabilities Act Amendments Act of 2008, and I commend Senator
Harkin and Senator Hatch for their leadership on this important measure
to restore the vitality of the Americans with Disabilities Act. As
chairman of the Senate Committee on Health, Education, Labor and
Pensions, which has jurisdiction over this legislation, I know too well
how urgently this legislation is needed to protect the civil rights of
persons with disabilities.
America's strength and success as a nation have been fueled by its
founding promise of equal justice for all. Yet for much of the Nation's
history, persons with disabilities were treated as people who needed
charity, not opportunity. Out of ignorance, the Nation accepted
discrimination for decades, and yielded to fear and prejudice.
In the 35 years since passage of the Rehabilitation Act of 1973,
which outlawed discrimination against persons
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with disabilities in programs and activities receiving Federal funds,
our Nation has made great progress toward making the promise of equal
justice a reality for such persons. The Fair Housing Amendments Act of
1988 continued this progress by extending housing protections to
persons with disabilities, but it was the Americans with Disabilities
Act of 1990 which opened wide the doors of opportunity by providing
long-overdue protections against job discrimination and greater access
to public accommodations. The 1990 act was a giant step toward
guaranteeing that persons with disabilities would be full participants
in the American dream.
Unfortunately, however, in many job discrimination cases, the courts
have interpreted the act so narrowly that many of us who were original
sponsors of the act barely recognize it today. Courts have ruled that
many of the very persons the act was designed to protect are not
covered by its provisions. These decisions have improperly shifted the
emphasis in ADA cases away from the central question of whether
discrimination occurred.
The bill we are considering today reaffirms Congress's intent that
the courts should interpret the ADA broadly to fulfill its important
purpose. In deciding whether to grant relief under the act, courts
should respect the act's goal of expanding opportunities for persons
with disabilities.
In particular, courts have narrowed the first prong of the ADA's
definition of disability, which defines a disability as a physical or
mental impairment that ``substantially limits'' one or more life
activities. As explained in the statement of managers, the bill seeks
to remedy this problem by clearly rejecting the reasoning of cases like
Toyota Motor Manufacturing, Kentucky, Inc. v. Williams in 2002, in
which the Supreme Court held that this prong of the definition must be
``be interpreted strictly to create a demanding standard for qualifying
as disabled,'' and that ``substantially limits'' means ``prevents or
severely restricts.''
The bill also rejects the Supreme Court's earlier holding in Sutton
v. United Air Lines, which also imposed too heavy a burden on
plaintiffs seeking relief under the act.
Although the House of Representatives' consideration of the pending
legislation was of significant assistance to the Senate on this issue,
in one important respect the Senate diverged from the reasoning
expressed in the reports of the committees of jurisdiction in the
House. The House version of the bill defined ``substantially limits''
as ``materially restricts,'' and the House Committee reports explained
this term with reference to a spectrum or range of severity. The term
``materially restricts'' in the House bill and these portions of the
House reports set an inappropriately high standard for the
determination of whether an individual is substantially limited in a
major life activity and pose the risk of confusing the threshold
determination of who is covered by the act. Fortunately, our Senate
bill avoids this problem and provides the broader coverage needed to
correct the excessively restrictive and unintended interpretation in
the litigation.
In addition, the bill's findings and purposes section states that
``the question of whether an individual's impairment is a disability
under the ADA should not demand extensive analysis.'' This statement
makes clear that courts normally should not require an extensive
examination of an individual's disability in cases under the ADA. In
such cases the main focus should be on whether discrimination has
occurred, not on the threshold issue of whether an individual's
impairment qualifies as a disability. As the Senate Statement of
Managers explains, courts should not interpret this statement to
constrain plaintiffs from offering evidence needed to establish that
their impairment is substantially limiting. Of course, this statement
in the bill does not impose any limitation on what evidence the party
with the burden of proof on the issue of disability may offer. Indeed,
such a position would be inconsistent with clearly established
evidentiary and procedural rules, and constitutional requirements as
well. The party with the burden of proving disability is free to
introduce all the evidence of disability that he or she believes is
appropriate, consistent with evidentiary and procedural rules. As the
Equal Employment Opportunity Commission has stated in a related
context, the plaintiff's evidentiary burden is minimal.
Our goal in this bill is to greatly enhance the protections against
discrimination for persons with disabilities, and I hope these
clarifications will avoid further confusion in future litigation. I am
proud to join with Senators Harkin and Hatch and the other sponsors in
support of the act, and I strongly urge the Senate to approve
it.
Mr. BARRASSO. Madam President, this act has opened the door to
hundreds of thousands of individuals to actively participate and
contribute to our great Nation. It has raised the conscience of our
Nation regarding disabilities and the impact they have on their lives.
The fair treatment of the citizens of the United States is paramount.
Every citizen, regardless of the obstacles in their lives, should have
the opportunity to work, live and fully participate in our society.
There are many individuals with disabilities who are exceptional
physicians and professionals. It is clear that situations will arise in
which an individual desiring to become a licensed physician has a
legitimate disability and a reasonable accommodation can be made during
standardized testing.
Licensing boards have the responsibility to accurately measure an
applicant's skills and abilities to practice in a professional field.
The purpose of standardized examinations is to create a set environment
in which to carefully determine and ensure that applicants have the
knowledge, skill, and ability to perform in the real world. Certain
performance measurements can only be evaluated under set parameters. It
is vital that standardized testing organizations not be required to
fundamentally alter key performance measurements when providing
reasonable accommodations to students with disabilities.
As a doctor, I understand the need to ensure that future physicians
have the ability to safely and skillfully provide medical care.
Patients should not have to worry about whether their treating
physician is qualified.
Public health and safety is based on the ability of these physicians
to work under pressure, respond quickly, and do so in a manner that
protects the well-being of the patient. The real world requires a
physician to concentrate and think clearly, often within a very small
timeframe.
Licensed physicians throughout the country are required to take a
standardized test to meet the requirements expected of the profession.
Determining whether an accommodation is reasonable should be left to
the licensing board. When a testing organization or a licensing board
has made a decision in good faith about an appropriate accommodation,
the decision should be given great deference. This is particularly true
in light of the important role these examinations play in the licensing
process and the safety of the general public.
It is important that the integrity of standardized tests for the
licensing of professionals in the field of medicine is maintained. The
legislation does not require accommodations which would alter key
performance measurements. There is no record that this legislation
would require standardized testing organizations, such as the State
Boards of Medicine, to fundamentally alter their examinations with
accommodations that will undermine the essential purpose of their exam.
Mr. DURBIN. Madam President, in passing the ADA Amendments Act of
2008 on this day--September 11--the Senate has managed to recapture, at
least for a time, the sense of unity and purpose that sustained our
nation on this day 7 years ago. This is not a Democratic or Republican
victory. This is a major victory for all Americans.
The Americans with Disabilities Act is one of the major civil rights
laws in our nation's history, but recent court decisions have narrowed
its scope and mistakenly excluded many people who should be protected.
The Supreme Court has created a cruel catch-22: If you can manage
your disability you might not be protected by the ADA. People end up
with terrible choices. Should I take the medication I need to stay
healthy and be denied the protections of the ADA? Or do
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I stop taking my medication so that I can be protected from
discrimination? That is not what Congress intended when it passed the
ADA.
By passing the ADA Amendments Act, the Senate is undoing the damage
caused by the Supreme Court and reaffirming the principle that America
will not tolerate discrimination based on real or perceived disability,
fears and stereotypes.
America has made real progress since President George H.W. Bush
signed the ADA in 1990. Many of the physical changes the ADA has
brought about--like curb cuts--benefit all Americans, not just those
with disabilities. Because of the ADA and other disability rights laws
millions of Americans with disabilities have gained access to public
accommodations, quality educations, and equal housing opportunities.
But too many people remained locked out of the workplace. Employment
rates for men and women with disabilities have actually declined
steadily since the ADA became law. Today, more than 60 percent of
working-age Americans with disabilities are unemployed, and Americans
with disabilities who do work are almost three times more likely to
live in poverty than workers without disabilities. That is wrong, and
it must end.
The march of progress in America can be marked by the expansion of
freedom. Slaves who were denied full citizenship under our Constitution
were given their rights with amendments after our Civil War and civil
rights legislation almost a century later. Women denied the right to
vote in America for generations finally won that right a century ago.
It is time indeed, it is past time--to expand our concept of freedom
and acknowledge the rights of another group of Americans who have
suffered discrimination through history: people with disabilities. It
is my hope and expectation that the House and Senate can work together
to resolve minor differences between our two bills and send the
President a bill that he can sign that will protect all Americans with
disabilities.
Mr. DODD. Madam President, I rise to support wholeheartedly the ADA
Amendments Act of 2008. Nearly 20 years ago Congress passed the
groundbreaking Americans with Disabilities Act. Because of its
enactment and implementation, our country has made progress in
eliminating the historical stigma previously associated with disability
and guaranteeing basic civil rights and liberties to people with
disabilities. I was a proud supporter of the ADA then, and I am a
strong supporter of the ADA Amendments Act of 2008 now. In the years
since the ADA became law, the courts have inappropriately limited its
scope, and many Americans with disabilities have been denied the rights
the law was intended to give them. This legislation will serve to
ensure that those rights are protected and that people with
disabilities are fully protected. It is my hope that this legislation
will also help America become more accepting of diversity.
I would like to take a moment to applaud Senator Harkin for his
leadership on the ADA. Without his leadership neither the ADA, nor this
legislation, would have been possible. I also would like to praise my
good friends Senator Kennedy and Senator Hatch, whose commitment to the
issue made the passage of this legislation possible.
For decades, we have fought for the civil rights of people with
disabilities, combating the antiquated mindsets of segregation,
discrimination, and ignorance. Our Nation has come from a time when the
exclusion of people with disabilities was the norm. We have come from a
time when doctors told parents that their children with disabilities
were better left isolated in institutions. We have come from a time
when individuals with disabilities were not considered contributing
members of society. Those times have thankfully changed. The passage of
the ADA in 1990 provided the first step toward that change our country
so desperately needed.
Although we have come along way in the past 18 years, the Americans
with Disabilities Act has not afforded the full protections that this
antidiscrimination statute originally intended to provide. The law has
been repeatedly misinterpreted by the courts that have used an
extremely narrow definition of disability. This definition is so narrow
that many defendants with clear disabilities cannot even get their case
heard in a courtroom because they do not qualify as having a
disability. People with disabilities excluded from protections under
the ADA include those with amputations, muscular dystrophy, epilepsy,
diabetes, multiple sclerosis, cancer, and intellectual disabilities.
Ultimately, a series of Supreme Court rulings established precedents
that leave many of our fellow citizens with disabilities little or no
protections under current law. These decisions created a platform for
future courts to say that a person does not have a disability when they
benefit from mitigating measures such as medications, therapies, or
other corrective devices. Ironically, this means that people with
disabilities who use measures such as assistive technology to help them
lead more self-sufficient lives are ultimately not protected from
discrimination related to their disability. The Supreme Court decisions
further narrowed the definition of disability by imposing a strict and
demanding standard to the definition of disability--barring Americans
coping with intellectual disabilities from the law's protections.
Equal protection under the law in the United States of America is not
a privilege, but rather, it is a fundamental right due every citizen of
our Nation, regardless of race, gender, national origin, religion, sex,
age, or disability. It is unacceptable to deny any individual his or
her right to those protections because of a misconstrued definition of
disability. Our country has an obligation to its citizens to ensure
that their fundamental rights are protected, and, if those rights are
violated, that the option of recourse is available.
This antidiscrimination legislation would move us forward as one
Nation in the direction that was intended 18 years ago. If this bill is
signed into law, it will provide much needed clarification on the
definition of disability, covering those individuals that rightly need
protections under this law. The bill rejects the findings of the
Supreme Court cases and specifies that mitigating measures are not to
be considered in disability determining and clarifies that the
definition should be more broadly interpreted.
Fortunately, we are a changing society, and we have come a long way
since those times of segregation and stigma. Recognizing that our
society needs to take yet another step to improve the civil rights of
our fellow citizens, I urge my colleagues to join with us and pass the
ADA Amendments Act of 2008.
I sincerely hope my colleagues will join me in bettering our country
by passing the ADA Amendments Act. As we are a just society, I will
continue to fight for the rights of my fellow Americans with
disabilities so that we all have an equal chance to achieve the
American dream. I urge my fellow colleagues to support this essential
piece of legislation on behalf of the American people.
Mr. HARKIN. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. GRASSLEY. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________