[Congressional Record Volume 154, Number 147 (Tuesday, September 16, 2008)]
[Senate]
[Pages S8840-S8844]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     STATEMENT OF MANAGERS--S. 3406

  Mr. HARKIN. Mr. President, I ask unanimous consent that this 
Statement of Managers to S. 3406 be reprinted in the Record with its 
endnotes.
  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

     Contents:
       I. Purpose and Summary of the Legislation
       II. Background and Need for Legislation
       III. Legislative History and Committee Action
       IV. Explanation of the Bill and Committee Views
       V. Application of the Law to the Legislative Branch
       VI. Regulatory Impact Statement
       VII. Section-by-Section Analysis

               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.'' \1\ 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.''2 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.3 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,''4 
     as well as the Court's interpretation that ``substantially 
     limits'' means ``prevents or severely 
     restricts.''5
       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 Lines6 and its 
     companion cases7 that mitigating measures must be 
     considered.8 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,\9\ 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.
       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

[[Page S8841]]

     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.\10\


                         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.''\11\
       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,\12\ 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.13
     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.14
       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.
       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

[[Page S8842]]

     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.15
       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.\16\
       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.\17\
       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\18\ 
     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 covered solely under the ``regarded as'' 
     prong.\19\ 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.

[[Page S8843]]

               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.'' \20\ 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 . . . 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.\21\

              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 
     Heath, 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 F. James 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; Stephen 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 and 
     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 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

[[Page S8844]]

     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.

                                Endnotes

       1. 42 U.S.C. Sec. 12101.
       2. This rule of construction is consistent with earlier 
     judicial precedents and parallels the rule of construction in 
     the Religious Land Use and Institutionalized Persons Act, 
     which Congress unanimously passed in 2002.
       3. Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 
     534 U.S. 184 (2002).
       4. Id. at 197.
       5. Id. at 198. See also, 29 CFR 1630.2.
       6. Sutton v. United Airlines, 527 U.S. 471 (1999).
       7. Murphy v. United Parcel Service, Inc., 527 U.S. 516 
     (1999), Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 
     (1999).
       8. Ordinary eyeglasses and contact lenses are excluded from 
     this prohibition.
       9. 29 U.S.C. Sec. 794. Sections 501 and 503 of the 
     Rehabilitation Act also use the same definition of disability 
     and prohibit disability discrimination by federal employees 
     and federal contractors, respectively. 29 U.S.C. 
     Sec. Sec. 791, 793. Note that the definition of disability is 
     found in Section 705(20)(B).
       10. This bill does not change any current statutory 
     requirement that an individual must be qualified to perform 
     the essential functions of the job.
       11. 42 U.S.C. 12101.
       12. The bill's purposes include rejecting the holding in 
     Toyota that in order for an impairment to be substantially 
     limiting, the impairment must ``prevent or severely restrict 
     the individual from doing activities that are of central 
     importance to most people's lives.''
       13. 28 CFR Sec. 36.104; 29 CFR Sec. 1630.2(h) (1)-(2); 34 
     CFR Sec. 104.3(j)(2)(i).
       14. We have chosen not to adopt the House's term 
     ``materially restricts'' or the House Committees' use of a 
     range or spectrum of severity to define ``materially 
     restricts'' because we are concerned both by the lack of 
     clarity in the terms ``material'' ``moderate'' and ``severe'' 
     and because we believe that such terms encourage the courts 
     to engage in an inappropriate level of scrutiny as to the 
     severity of an impairment when determining whether an 
     individual has a disability.
       15. Under the first prong, of course, a plaintiff must 
     still provide evidence that that his or her impairment is 
     substantially limiting.
       16. See Holt v. Grand Lake Mental Health Center, Inc., 443 
     F. 3d 762 (10th Cir. 2006) holding an individual with 
     cerebral palsy who could not independently perform certain 
     specified manual tasks was not substantially limited in her 
     ability to perform a ``broad range'' of manual tasks.
       17. We expect that this illustrative list of major life 
     activities (including major bodily functions), in combination 
     with the rejection of both the ``demanding standard'' in 
     Toyota and the consideration of mitigating measure in the 
     Sutton trilogy will make it easier for individuals to show 
     that they are eligible for the ADA's protections under the 
     first prong of the definition of disability. While it is 
     impossible to predict the type of cases that will be brought 
     following passage of this bill, we would expect that the bill 
     will make it easier for individuals in cases like the 
     following to qualify for the protections of the ADA--
     Littleton v. Wal-Mart Stores, Inc, 231 Fed. Appx. 874 (11th 
     Cir. 2007) (individual with intellectual disability); Furnish 
     v. SVI Syst., Inc., 270 F. 3d 445, 450 (7th Cir. 2001) 
     (person with cirrhosis of the liver caused by Hepatitis B); 
     and Pimental v. Dartmouth-Hitchcock Clinic, 236 F. Supp. 2d 
     177 (D.N.H. 2002) (individual with advanced breast cancer).
       18. 480 U.S. 273(1987).
       19. The following courts have held that the ADA requires 
     that reasonable accommodations be provided to individuals who 
     are able to establish coverage under the ADA under the 
     ``regarded as'' prong of the definition of disability: Kelly 
     v. Metallics West, Inc., 410 F.3d 670 (10th Cir. 2005) 
     (plaintiff needed oxygen device to breathe); D'Angelo v. 
     ConAgra Foods, Inc., 422 F.3d 1220 (11th Cir. 2005) 
     (plaintiff had vertigo resulting in spinning and vomiting); 
     Williams v. Philadelphia Housing Auth. Police Dept., 380 F.3d 
     751 (3d Cir. 2004) (plaintiff had major depressive disorder); 
     Lorinz v. Turner Const. Co., 2004 WL 1196699, * 8 n.7 
     (E.D.N.Y. May 25, 2004) (plaintiff had depressive disorder 
     and anxiety); Miller v. Heritage Prod., Inc., 2004 WL 
     1087370, * 10 (S.D. Ind. Apr. 21, 2004) (plaintiff had back 
     injury and could not lift more than 20 pounds, bend or 
     twist); Jacques v. DiMarzio, Inc., 200 F. Supp.2d 151 
     (E.D.N.Y. 2002) (plaintiff had bipolar disorder); Jewell v. 
     Reid's Confectionary Co., 172 F. Supp.2d 212 (D. Me. 2001) 
     (plaintiff had heart attack); Katz v. City Metal Co., Inc., 
     87 F.3d 26, 33 (1st Cir. 1996) (plaintiff had heart attack). 
     Some courts have held that reasonable accommodations need not 
     be provided to an employee who is merely regarded or 
     perceived as disabled. See Kaplan v. City of N. Las Vegas, 
     323 F.3d 1226, 1231-33 (9th Cir. 2003); Weber v. Strippit, 
     Inc., 186 F.3d 907, 916-17 (8th Cir. 1999); Workman v. Frito-
     Lay, Inc., 165 F.3d 460, 467 (6th Cir. 1999); Newberry v. E. 
     Texas State Univ., 161 F.3d 276, 280 (5th Cir. 1998). Cf. 
     Brady v. Wal-Mart Stores Inc. et al, No. 06-5486-cv (2nd Cir. 
     July 2, 2008) (accommodations available under either first or 
     third prong).
       20. 527 U.S. at 479 (1999).
       21. For example, an individual with diabetes might 
     demonstrate coverage by showing either that he was 
     substantially limited in endocrine functioning or that his 
     diabetes substantially limited a major life activity, such as 
     eating or sleeping.

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