[Congressional Record Volume 154, Number 149 (Thursday, September 18, 2008)]
[Extensions of Remarks]
[Pages E1841-E1842]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       ADA AMENDMENTS ACT OF 2008

                                 ______
                                 

                               speech of

                           HON. GEORGE MILLER

                             of california

                    in the house of representatives

                     Wednesday, September 17, 2008

  Mr. GEORGE MILLER of California. Madam Speaker, I rise today in 
strong support of final passage of S. 3406, the ADA Amendments Act of 
2008.
  Since 1990, the Americans with Disabilities Act has provided 
protection from discrimination for millions of productive, hard-working 
Americans so that they may fully participate in our Nation's schools, 
communities and workplaces.
  Among other rights, the law guaranteed that workers with disabilities 
would be judged on their merits and not on an employer's prejudice.
  But since the ADA's enactment, several Supreme Court rulings have 
dramatically reduced the number of individuals with disabilities who 
are protected from discrimination under the law.
  Workers like Carey McClure, an electrician with muscular dystrophy 
who testified before our committee in January, have been determined by 
an employer be ``too disabled'' to do a job, yet courts have said that 
these individuals are not disabled enough. This is the terrible 
``catch-22'' that Congress will change with passage of this bill.
  S. 3406, like H.R. 3195 passed in June, remedies this situation in 
several ways by reversing flawed court decisions to restore the 
original congressional intent of the ADA. Workers with disabilities who 
have been discriminated against will no longer be denied their civil 
rights as a result of these erroneous court decisions.
  We expect that individuals will find it much easier to meet the 
determination of disability under the amended ADA.
  In order to achieve the remedial purpose of the ADA as a civil rights 
law, S. 3406 re-establishes the scope of protection to be generous and 
inclusive. The bill returns the proper emphasis to whether 
discrimination occurred rather than on whether an individual's 
impairment qualifies as a disability.
  S. 3406 ensures that individuals who reduce the impact of their 
impairments through means such as hearing aids, medications, or learned 
behavioral modifications will be considered in their unmitigated state.
  For people with epilepsy, or diabetes, or other conditions who have 
successfully managed a disability, this means the end of the ``catch-
22'' that Carey McClure and so many others have encountered when 
seeking justice.
  For our returning war veterans with disabilities, S. 3406 will ensure 
their transition back to civilian life will not include another battle 
here at home--a battle against discrimination on the basis of 
disability.
  And students with physical or mental impairments will have access to 
the accommodations and modifications they need to successfully pursue 
an education.
  Much of the language contained in S. 3406 is identical to the House-
passed H.R. 3195. This includes provisions concerning mitigating 
measures, episodic conditions, major life activities, treatment of 
claims under the ``regarded as'' prong, regulatory authority for the 
definition of disability, and the conforming amendments to Section 504 
of the Rehabilitation Act.
  In the House Committee Reports on H.R. 3195, we clarify that an 
individual who is ``regarded as having such an impairment'' under the 
third prong of the definition is not subject to the functional test 
(i.e., required to establish that the perceived or actual impairment 
substantially limits a major life activity) set forth in the first 
prong. Thus, an individual with an actual or perceived impairment who 
is disqualified from a job, program, or service and alleges that the 
adverse action was based upon his or her impairment is covered by the 
ADA as a member of the protected class, and therefore entitled to bring 
a claim.
  In clarifying the scope of protection under the third prong of the 
definition, we also established that reasonable accommodations or 
modifications do not need to be provided for those individuals who 
qualify for coverage only because they have been ``regarded as'' having 
a disability. We are confident, as is the Senate, that individuals who 
need accommodations or modifications will receive them because those 
individuals will now qualify for coverage under the first or second 
prongs (under the less demanding interpretation of ``substantial 
limitation'') when accommodations or modifications are still required. 
Our clarification regarding the provision of modifications here does 
not shield qualification standards, tests, or other selection criteria 
from challenge by an individual who is disqualified based on such 
standard, test, or criteria. As is currently required under the ADA, 
any standard, test, or other selection criteria that results in 
disqualification of an individual because of an impairment can be 
challenged by that individual and must be shown to be job-related and 
consistent with business necessity or necessary for the program or 
service in question.
  Other small differences in the findings and purposes in S. 3406, as 
well as the rule of construction related to the broad coverage of the 
act, correspond to similar language in H.R. 3195 and support the 
objectives as described in the House Committee Education and Labor 
Report.
  As such, our committee report continues to reflect the intent of the 
legislation and should be regarded as a valid interpretation, with one 
exception--the definition of ``materially restricts.''
  This difference between the two bills resides in the attempt to 
correct the current interpretation of ``substantially limits.''
  The EEOC regulations define the term ``substantially limits'' as 
``unable to perform'' or ``significantly restricted.'' In the Toyota 
case (Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 
184 (2002)), the Supreme Court interpreted ``substantially limits'' to 
mean ``prevents or severely restricts.''
  Both the House and the Senate clearly expect the courts and the 
agencies to apply a less demanding standard when interpreting 
``substantially limits,'' even though the two chambers took divergent, 
but not inconsistent, approaches.
  S. 3406 rejects both of these definitions as too demanding and too 
narrow, and directs the courts and the agencies to interpret the term 
``substantially limits'' consistently with the findings and purposes of 
the ADA Amendments Act.
  H.R. 3195 defines ``substantially limits'' to mean ``materially 
restricts.'' While the committee believed inclusion of this language 
would send a strong signal that ``while the limitation imposed by an 
impairment must be important, it need not rise to the level of severely 
restricting or significantly restricting the ability to perform a major 
life activity'' (House Committee on Education and Labor Report 110-730 
part 1, at 9), our colleagues in the Senate disagreed.
  In his statement, Senator Kennedy notes that the term ``materially 
restricts,'' and the House committee report's references to a

[[Page E1842]]

spectrum or range of severity ``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.'' (154 Cong. Rec. S8355 
(daily ed September 11, 2008)). This was certainly not our intention.
  We also agree with the Senate managers 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.'' (Senate Statement of Managers to Accompany S. 3406, 
Endnote 14.) We intend that the ADA Amendments will have the opposite 
effect, by reducing the depth of analysis related to the severity of 
the limitation of the impairment and returning the focus to the 
question of discrimination.
  S. 3406 also includes a restatement of current law related to 
fundamental alterations in order to assure institutions of higher 
education that the ADA Amendments Act does not change the principle 
that entities need not make modifications to policies, practices or 
procedures that would fundamentally alter the nature of programs or 
services, as is true under current law.
  For example, a university would not be expected to eliminate academic 
requirements essential to the instruction being pursued by a student, 
although the school may be required to make modifications in order to 
enable students with disabilities to meet those academic requirements. 
Current regulations provide that ``Modifications may include changes in 
the length of time permitted for the completion of degree requirements, 
substitution of specific courses required for the completion of degree 
requirements, and adaptation of the manner in which specific courses 
are conducted.'' (Senate Statement of Managers to Accompany S. 3406, 
Endnote 14)
  Educational, testing, certification and licensing entities covered by 
the ADA also maintain discretion to establish appropriate and 
reasonable documentation requirements related to the determination of 
disability, as is true under current law. In June 2008, the Department 
of Justice offered that ``a testing entity should accept without 
further inquiry documentation provided by a qualified professional who 
has made an individualized assessment of the applicant. Appropriate 
documentation may include a letter from a qualified professional or 
evidence of a prior diagnosis, accommodation, or classification, such 
as eligibility for a special education program.'' (Examinations and 
Courses, 73 Federal Register 34539 (June 17, 2008))
  Once an individual has established that he or she experiences (or has 
a record of) a physical or mental impairment that substantially limits 
a major life activity, such individual is entitled to reasonable and 
appropriate modifications in policies, practices or procedures so long 
as the modifications in question do not fundamentally alter the nature 
of the program or service.
  We expect that the less demanding standard applied to the definition 
of disability will allow students and licensure candidates with 
documented disabilities to more readily access appropriate 
accommodations on examinations when needed.
  Last, we must remember that the ADA definition of disability applies 
also to our public elementary and secondary schools. We believe that 
most schools currently operate in a manner consistent with the original 
congressional intent of Section 504 of the Rehabilitation Act and the 
ADA and should be minimally affected by the change in definition. We do 
not anticipate a need for extensive changes to the current regulations 
and published guidance provided by the Office of Civil Rights at the 
Department of Education.
  This legislation has broad support: Democrats and Republicans, 
employers, civil rights groups, and advocates for individuals with 
disabilities. I'm pleased we were able to work together to get to this 
point.
  In particular, I would like to thank the members of the Employer and 
Disability Alliance, including the Leadership Conference on Civil 
Rights, the Epilepsy Foundation, the American Association of People 
with Disabilities, the Bazelon Center for Mental Health Law, the U.S. 
Chamber of Commerce, HR Policy Association, the National Association of 
Manufacturers, and the Society for Human Resource Management for their 
hard work and long hours of negotiation with each other and with our 
staff.
  Of course, much credit is due to Majority Leader Hoyer and 
Congressman Sensenbrenner for their leadership and tenacity in the 
House; and Senator Harkin, Senator Kennedy and Senator Hatch for their 
skill in moving this legislation through the Senate with unanimous 
support.
  It is time to restore the original intent of the ADA and ensure that 
the tens of millions of Americans with disabilities who want to work, 
attend school, and fully participate in our communities will have the 
chance to do so.
  I look forward to passage of this legislation.

                          ____________________