[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;

[[Page S8343]]

         (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.

[[Page S8345]]

       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.

[[Page S8346]]

       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

[[Page S8347]]

     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

[[Page S8348]]

     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

[[Page S8349]]

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;

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           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

[[Page S8356]]

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.

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