[Congressional Record (Bound Edition), Volume 154 (2008), Part 14]
[House]
[Pages 19430-19444]
[From the U.S. Government Publishing Office, www.gpo.gov]




                       ADA AMENDMENTS ACT OF 2008

  Mr. GEORGE MILLER of California. Mr. Speaker, I move to suspend the 
rules and pass the Senate bill (S. 3406) to restore the intent and 
protections of the Americans with Disabilities Act of 1990.
  The Clerk read the title of the Senate bill.
  The text of the Senate bill is 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;
       (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

[[Page 19431]]

     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.''.
       (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

[[Page 19432]]

     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.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
California (Mr. George Miller) and the gentleman from California (Mr. 
McKeon) each will control 20 minutes
  The Chair recognizes the gentleman from California Mr. George 
Miller).


                             General Leave

  Mr. GEORGE MILLER of California. Mr. Speaker, I ask unanimous consent 
for 5 legislative days during which Members may revise and extend their 
remarks and insert extraneous material on S. 3406 into the Record.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from California?
  There was no objection.
  Mr. GEORGE MILLER of California. Mr. Speaker, I yield myself such 
time as I may consume.
  Mr. Speaker, I rise today in strong support of final passage of S. 
3406, the Americans with Disabilities Amendments Act of 2008.
  Since 1990, the Americans with Disabilities Act has provided 
protection from discrimination for millions of productive, hardworking 
Americans so that they may fully participate in our Nation's schools, 
communities and workplace. 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 not been hired or passed over for 
promotion by an employer regarding them as too disabled to do the job. 
Yet when these workers seek justice for this discrimination, the courts 
rule that they are not disabled enough to be protected by the Americans 
with Disabilities Act. This is a terrible catch-22 that Congress will 
change with the passage of this bill today.
  S. 3406, like H.R. 3195 passed in June, remedies this catch-22 
situation in several ways by reversing flawed court decisions to 
restore the original congressional intent of the Americans with 
Disabilities Act. Workers with disabilities who have been discriminated 
against will no longer be denied their civil rights as a result of 
these erroneous court decisions.
  To do this, S. 3406 reestablishes the scope of protection of the 
Americans with Disabilities Act to be generous and inclusive. The bill 
restores the proper focus on whether discrimination occurred rather 
than on whether or not 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, diabetes and other conditions who have 
successfully managed their disability, this means the end of the catch-
22 situation that Carey McClure and so many others have encountered 
when attempting to seek justice.
  For our returning war veterans with disabilities, S. 3406 will ensure 
that the transition to civilian life will not include another battle 
here at home, a battle against discrimination on the basis of 
disability.
  And students with physical and 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.
  We expect the courts and agencies to apply this less demanding 
standard when interpreting ``substantially limits.'' S. 3406 directs 
the courts and the agencies to interpret the term consistent with the 
findings and purposes of the ADA Amendments Act.
  We intend that the ADA Amendments Act will reduce the depth of 
analysis related to the severity of the limitation of the impairment 
and return the focus to where it should be: the question of whether or 
not discrimination, based upon the disability, actually occurred.
  This legislation has broad support: Democrats and Republicans; 
employers, civil rights groups, and advocates for individuals with 
disabilities. I'm pleased that we were able to work together to get to 
this point.
  In particular, I'd 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 U.S. Chamber of Commerce, the National 
Association of Manufacturers, and the Society for Human Resource 
Management for all of their hard work and long hours of negotiations 
with each other and with our staff.
  Of course, much credit is due to Majority Leader Steny Hoyer and 
Congressman Jim Sensenbrenner for their leadership and tenacity in the 
House; and Senator Harkin, Senator Kennedy, 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 the passage of this legislation and encourage my 
colleagues to support it.
  I reserve the balance of my time.
  Mr. McKEON. Mr. Speaker, I yield myself such time as I may consume.
  I am pleased to rise in support of ADA Amendments Act of 2008, a bill 
we

[[Page 19433]]

first approved earlier this year. The bill we passed was the product of 
good-faith negotiation and careful compromise, and I appreciate that 
the framework of our bill has been maintained.
  At the same time, our counterparts on the other side of the Capitol 
were able to further refine and improve the legislation. Thanks to that 
effort, the bill before us today represents an important step forward 
for Americans with disabilities and the employers that benefit from 
their many contributions.
  The Americans with Disabilities Act was enacted in 1990 with broad 
bipartisan support. Among the bill's most important purposes was to 
protect individuals with disabilities from discrimination in the 
workplace.
  By many measures, the law has been a huge success. I firmly believe 
that the employer community has taken the ADA to heart, with businesses 
adopting policies specifically aimed at providing meaningful 
opportunities to individuals with disabilities.
  However, despite the law's many success stories, it is clear today 
that for some, the ADA is failing to live up to its promise.
  In the years since its enactment, court cases and legal 
interpretations have left some individuals outside the scope of the 
act's protections. Some individuals the law was clearly intended to 
protect have been deemed ``not disabled enough,'' an interpretation we 
all agree needs correcting.
  In response, however, proposals were put forward to massively expand 
the law's protections to cover virtually all Americans. This is an 
equally dangerous proposition.
  Our task with this legislation was to focus relief where it is 
needed, while still maintaining the delicate balance embodied in the 
original ADA.
  In the months since this bill was first introduced and moved through 
the House, I am pleased to say that we were able to do exactly that.
  Mr. Speaker, this is a good bill, and the time to enact it is now. It 
ensures that meaningful relief will be extended to those most in need, 
while the ADA's careful balance is maintained as fully as possible.
  Once again, I want to thank my colleagues on both sides of the aisle 
for honoring our shared commitment to work together on this issue that 
has the potential to touch the lives of millions of Americans.
  I would especially like to recognize Majority Leader Hoyer, 
Representative Sensenbrenner, and Chairman Miller for their leadership 
and commitment to enactment of these important bipartisan reforms. I 
also want to thank the many stakeholders, especially the ones that 
Chairman Miller mentioned in his remarks, who were involved in this 
process for their efforts.
  I reserve the balance of my time.
  Mr. GEORGE MILLER of California. Mr. Speaker, I yield 3 minutes to 
the gentleman from New York (Mr. Nadler), a member of the Judiciary 
Committee, which also had jurisdiction over this legislation and was 
very helpful in its passage.
  Mr. NADLER. I thank the gentleman.
  I thank the distinguished majority leader and the gentleman from 
Wisconsin (Mr. Sensenbrenner). Under their leadership, the House passed 
the ADA Amendments Act in June by an overwhelming vote of 402-17.
  The Senate, under the leadership of Senators Harkin and Hatch, has 
taken up our bipartisan call to restore the promise of the ADA and has 
passed a nearly identical bill, S. 3406.
  Like the House bill, S. 3406 overturns Supreme Court decisions that 
have narrowed the scope of protection under the ADA. These decisions 
have created a catch-22, in which an individual who is able to lessen 
the adverse impact of an impairment by use of a mitigating measure like 
medicine or a hearing aid can be fired from a job or otherwise face 
discrimination on the basis of that impairment and yet not be 
considered sufficiently disabled to be protected by the ADA. Congress 
never intended such an absurd result.
  Like the House bill, S. 3406 cures this problem by prohibiting courts 
from considering ``mitigating measures''--things like medicine, 
prosthetic devices, hearing aids, or the body's own compensation and 
ability to adapt--when determining whether an individual is disabled. 
On this important point, S. 3406 retains the exact same language as 
H.R. 3195.
  S. 3406 also retains the House language on the treatment of episodic 
conditions, major life activities, claims brought under the ``regarded 
as'' prong of the definition, regulatory authority, and conforming the 
definition contained in section 504 of the Rehabilitation Act so that 
entities covered by the ADA and Rehabilitation Act operate under a 
consistent standard.
  While the approach taken in the two bills is somewhat different, 
congressional intent and the result achieved by both bills is the same.
  Both bills make clear that the courts and Federal agencies have set 
the standard for qualifying as disabled under the ADA too high. Both 
bills reject court and agency interpretation of the term 
``substantially limits'' as ``preventing'' or ``significantly 
restricting'' the ability to perform a major life activity. Both bills 
require the courts and Federal agencies to set a less demanding 
standard by interpreting the term ``substantially limits'' more 
generously to ensure broad coverage for the wide range of individuals 
with disabilities.
  For that reason, I support and urge all of you to join me in 
supporting S. 3406. These changes are long overdue. Countless Americans 
with disabilities have already been deprived of the opportunity to 
prove that they have been victims of discrimination, that they are 
qualified for a job, or that a reasonable accommodation would afford 
them an opportunity to participate fully at work and in community life.
  It is our sincere hope that, with less fighting over who is or is not 
disabled, we will finally be able to focus on the important questions: 
Is an individual qualified? And might a reasonable accommodation afford 
that person the same opportunities that his or her neighbors enjoy? Our 
Nation simply cannot afford to squander the talents and contributions 
of our people based on antiquated misconceptions about people with 
disabilities.
  I urge my colleagues to join me in voting for passage of S. 3406 and 
restoring the ADA to its rightful place among this Nation's great civil 
rights laws.
  I thank the gentleman again.
  Mr. Speaker, I rise in support of S. 3406, the ``ADA Amendments Act 
of 2008.''
  I thank the distinguished Majority Leader, the gentleman from 
Maryland, and the gentleman from Wisconsin, Mr. Sensenbrenner. Under 
their leadership, the House passed the ADA Amendments Act (H.R. 3195) 
in June by an overwhelming vote of 402-17.
  The Senate, under the leadership of Senators Harkin and Hatch, has 
taken up our bipartisan call to restore the promise of the ADA and has 
passed a nearly identical bill, S. 3406.
  Like the House bill, S. 3406 overturns Supreme Court decisions that 
have narrowed the scope of protection under the ADA. These decisions 
have created a Catch-22, in which an individual who is able to lessen 
the adverse impact of an impairment by use of a mitigating measure like 
medicine or a hearing aid can be fired from a job or otherwise face 
discrimination on the basis of that impairment and yet not be 
considered sufficiently disabled to be protected by the ADA. Congress 
never intended such an absurd result.
  Like the House bill, S. 3406 cures this problem by prohibiting courts 
from considering ``mitigating measures''--things like medicine, 
prosthetic devices, hearings aids, or the body's own compensation and 
ability to adapt--when determining whether an individual is disabled. 
On this important point, S. 3406 retains the exact same language as 
H.R. 3195.
  S. 3406 also retains the House language on the treatment of episodic 
conditions, major life activities, claims brought under the ``regarded 
as'' prong of the definition, regulatory authority, and conforming the 
definition contained in Section 504 of the Rehabilitation Act so that 
entities covered by the ADA and Rehabilitation Act operate under a 
consistent standard.
  Over the past two Congresses, the Subcommittee on the Constitution, 
Civil Rights, and Civil Liberties of the Committee on the Judiciary has 
studied these issues extensively, holding multiple hearings and 
meetings with stakeholders in the disability and business

[[Page 19434]]

communities. Our colleagues in the House Committee on Education and 
Labor have done the same. The findings and insights that we presented 
in the committee reports accompanying H.R. 3195 reflect our 
understanding and intent regarding the language shared by H.R. 3195 and 
S. 3406 and should guide courts and Federal agencies when interpreting 
and applying these aspects of the amended definition of disability.
  While the language of the House and Senate bills is identical in most 
respects, the bills differ in how they address the term ``substantially 
limits'' in the ADA's definition of disability. But while the approach 
taken in the bills is different, congressional intent and the result 
achieved by both bills is the same.
  Both bills make clear that the courts and Federal agencies have set 
the standard for qualifying as disabled under the ADA too high. Both 
bills reject court and agency interpretation of the term 
``substantially limits'' as ``preventing'' or ``significantly 
restricting'' the ability to perform a major life activity. Both bills 
require the courts and federal agencies to set a less demanding 
standard by interpreting the term ``substantially limits'' more 
generously to ensure broad coverage for the wide range of individuals 
with disabilities.
  In H.R. 3195, we achieved these goals by redefining the term 
``substantially limits'' to mean ``materially restricts.'' Thus, to 
show a ``substantial''--meaning ``material'' rather than 
``significant'' limitation--an individual need show only an important 
or noticeable limit on the ability to perform a major life activity. 
This is not an onerous burden.
  As explained in the Senate statement of managers, they chose an 
alternate route to achieve the same result. Rather than redefining the 
term ``substantially limits,'' the Senate left this language intact 
but, through findings and purposes and a statutory rule of 
construction, rejected court and agency interpretation of this term as 
meaning ``prevents'' or ``significantly restricts.'' Like our bill, S. 
3406 directs the courts and Federal agencies to set a lower standard 
that provides broad coverage. As explained in the Senate Statement of 
Managers, their bill--like ours--ensures that the burden of showing 
that an impairment limits one's ability to perform common activities is 
not onerous.
  Thus, while the approach taken is different, the intent--and the 
standard established by both bills--is identical. As such, the guidance 
provided in House reports regarding application of this less burdensome 
standard for showing a ``substantial'' limitation remains valid and 
relevant, with the exception of our use of a ``spectrum'' of severity 
to describe a relative level of limitation. With regard to the 
``spectrum,'' we accept concerns expressed by Senator Kennedy that this 
could be construed as keeping the standard inappropriately high, and 
reject the usefulness of this approach.
  Like H.R. 3195, the lower standard demanded by S. 3406 will provide 
broad coverage, consistent with how courts had approached cases under 
the Rehabilitation Act prior to enactment of the ADA, where individuals 
with a wide range of physical and mental impairments such as epilepsy, 
diabetes, multiple sclerosis and intellectual and developmental 
disabilities qualified for protection, even where a mitigating measure 
might lessen the impact of their impairment. In most of these cases, 
defendants and the courts simply accepted that a plaintiff was a member 
of the protected class and moved on to the merits of the case. Congress 
expected and intended the same thing when it passed the ADA in 1990, 
and we are again attempting to make this crystal clear. As stated in S. 
3406, the focus should be on whether discrimination has occurred and 
``the question of whether an individual's impairment is a disability 
under the ADA should not demand extensive analysis.''
  Under the lower standard for qualifying as disabled, for example, an 
individual who is disqualified from his or her job of choice because of 
an impairment should be considered substantially limited in the major 
life activity of working. Previously, in providing guidance on what the 
term ``substantially limits'' means with respect to the major life 
activity of working, the Equal Employment Opportunity Commission 
indicated that ``the inability to perform a single, particular job'' 
was not a ``substantial'' (i.e., ``significant'') enough limitation. S. 
3406 states that interpreting ``substantial'' to require a 
``significant'' limitation sets too high a standard and that we expect 
the EEOC to redefine this portion of its regulations. Naturally, this 
change will require reconsideration of the meaning of ``substantial'' 
limitation in the major life activity of working, as well as other 
major life activities.
  The courts and Federal agencies also will be called upon to interpret 
our changes to the third, ``regarded as'' prong of the definition. 
These changes are identical in S. 3406 and H.R. 3195. As we made clear 
in our committee reports, an individual meets the requirement of being 
``regarded as having such an impairment'' if the individual shows that 
a prohibited action was taken based on an actual or perceived 
impairment, regardless of whether this impairment limits (or is 
perceived to limit) performance of a major life activity. Thus, an 
individual with an actual or perceived impairment who is disqualified 
from a job, program, or service and who alleges that the 
disqualification was based on the actual or perceived impairment is a 
member of the protected class and then entitled to prove that the 
adverse action violated the ADA.
  In clarifying the scope of protection under the third, ``regarded 
as'' prong of the definition, we also clarified that reasonable 
accommodation need not be provided for those individuals who qualify 
for coverage only because they have been ``regarded as'' disabled. We, 
and the Senate, expressed our confidence that individuals who need 
accommodations will receive them because, with reduction in the burden 
of showing a ``substantial limitation,'' those individuals also qualify 
for coverage under prongs 1 or 2 (where accommodation still is 
required). Of course, our clarification 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.
  The changes made by S. 3406 are long overdue. Countless Americans 
with disabilities have already been deprived of the opportunity to 
prove that they have been victims of discrimination, that they are 
qualified for a job, or that a reasonable accommodation would afford 
them an opportunity to participate fully at work and in community life.
  Like our bill, S. 3406 ensures that individuals like Mary Ann 
Pimental--a mother and nurse who died from breast cancer a few months 
after the courts told her that her cancer was too temporary and short-
lived to qualify her for protection from job discrimination under the 
ADA--are covered by the law when they need it. S. 3406 also ensures 
vital protections for our returning veterans. Thousands of our brave 
men and women in uniform are returning home with serious injuries, 
including the loss of limbs, head trauma, and a variety of other life-
altering injuries. These veterans have faced great risk and sacrificed 
much in service of their country and should return home knowing that 
they are protected from discrimination.
  It is our sincere hope that, with less battling over who is or is not 
disabled, we will finally be able to focus on the important questions--
is an individual qualified? And might a reasonable accommodation afford 
that person the same opportunities that his or her neighbors enjoy? Our 
Nation simply cannot afford to squander the talents and contributions 
of our people based on antiquated misconceptions about people with 
disabilities.
  I urge my colleagues to join me in voting for passage of S. 3406 and 
restoring the ADA to its rightful place among this Nation's great civil 
rights laws.
  Mr. McKEON. Mr. Speaker, at this time I yield 3 minutes to the 
gentleman from Wisconsin (Mr. Sensenbrenner), who has done so much to 
bring this bill to this point.
  Mr. SENSENBRENNER. Mr. Speaker, in 1990, a bipartisan Congress took 
significant steps to break down the physical and societal barriers that 
for far too long kept disabled Americans from fully participating in 
the American Dream. Today, the House takes the final step towards 
righting the wrongs that courts have made in their interpretation of 
this landmark law.

                              {time}  1130

  It has been a long road to finally reach this point.
  As chairman of the House Judiciary Committee last Congress, I first 
introduced this bill with House Majority Leader Steny Hoyer. Although 
the Judiciary Committee held a hearing on the bill in 2006, it was too 
late in the legislative session to move it but that bill marked our 
intent and promise to tackle the issue in the 110th Congress.
  Last year on the ADA's anniversary, Leader Hoyer and I introduced the 
bill again. The purpose of this legislation is to resolve the intent of 
Congress to cover a broad group of individuals with disabilities under 
the ADA and to eliminate the problem of courts focusing too heavily on 
whether individuals

[[Page 19435]]

are covered by the law rather than on whether discrimination occurred. 
We worked with advocates from the disability community and business 
interests over the past year to craft a balanced bill with bipartisan 
support.
  President Ronald Reagan once said, ``There is no limit to what you 
want to accomplish if you don't care who gets the credit.'' That 
statement rings true about negotiations with this bill. Interest groups 
that did not see eye-to-eye at the outset worked diligently over many 
months. After intense discussions, they came to a compromise that both 
sides could support.
  The bill we pass today will restore the full meaning of equal 
protection under the law and all of the promises that our Nation has to 
offer. As Members are well aware by now, the Supreme Court has slowly 
chipped away at the broad protections of the ADA and has created a new 
set of barriers for disabled Americans. The Court's rulings currently 
exclude millions of disabled Americans from the ADA's protection--the 
very citizens that Congress expressly sought to include within the 
scope of the Act in 1990.
  The impact of these decisions is such that disabled Americans can be 
discriminated against by their employer because of their conditions but 
are not considered disabled enough by our Federal courts to invoke the 
protections of the ADA. This is unacceptable. Today's vote will enable 
disabled Americans utilizing the ADA to focus on the discrimination 
that they have experienced rather than having to first prove that they 
fall within the scope of the ADA's protection.
  Finally, I would like to pay tribute to my wife, Cheryl. As the 
chairman of the board of the American Association of People With 
Disabilities, she has been dogged in her advocacy of this legislation 
and has presented real life situations on why this bill ought to pass. 
Without her efforts, a lot of the progress that has been made would not 
have occurred, and I salute her for that.
  The ADA has been one of the most effective civil rights laws passed 
by Congress. I encourage my colleagues to vote in favor of the ADA 
Amendments Act.
  Mr. GEORGE MILLER of California. Will the gentleman yield?
  Mr. SENSENBRENNER. I am out of time.
  Mr. GEORGE MILLER of California. I will yield you 30 seconds.
  If I might, I just want to recognize the tenacity of Mr. 
Sensenbrenner in pushing for this legislation, and I wanted to do it 
while he was in the well and also to recognize the contribution of your 
wife, Cheryl, who has talked to all of us about this and has been so 
determined that this bill pass in this Congress. I think without that 
energy, I'm not sure we would have gotten here today. But certainly 
what you and Mr. Hoyer have done in the House has been absolutely 
outstanding, and I want you to know how much I appreciate Cheryl's 
involvement, also.
  Mr. SENSENBRENNER. I thank the gentleman for yielding, and the 
gentleman is absolutely right.
  Mr. GEORGE MILLER of California. I yield to the gentleman from 
California (Mr. Stark) for the purposes of engaging in a colloquy.
  Mr. STARK. I thank the gentleman for yielding.
  I am pleased that this bill, S. 3406, will sustain the rights and 
remedies available to individuals with disabilities, including 
individuals with learning disabilities just as in the measure passed by 
the House, H.R. 3195.
  Would the Chairman agree that the measure before us rejects the 
assumption that an individual who has performed well academically 
cannot be substantially limited in activities such as learning reading, 
writing, thinking, or speaking?
  Mr. GEORGE MILLER of California. Yes, I would.
  As chairman of the Education and Labor Committee, I agree that both 
H.R. 3195 and S. 3406 reject the holding that academic success is 
inconsistent with the finding that an individual is substantially 
limited in such major life activities. As such, we reject the findings 
in Price v. National Board of Medical Examiners, Gonzalez v. National 
Board of Medical Examiners, and Wong v. Regents of University of 
California.
  Mr. STARK. I thank the Chairman.
  Specific learning disabilities, such as dyslexia, are neurologically 
based impairments that substantially limit the way these individuals 
perform major life activities, like reading or learning, or the time it 
takes to perform such activities often referred to as the condition, 
manner, or duration.
  This legislation will reestablish coverage for these individuals by 
ensuring that the definition of this ability is broadly construed and 
the determination does not consider the use of mitigating measures.
  Given this, would the chairman agree that these amendments support 
the finding in Bartlett v. New York State Board of Law Examiners in 
which the court held that in determining whether the plaintiff was 
substantially limited with respect to reading, Bartlett's ability to 
``self-accommodate'' should not be taken into consideration when 
determining whether she was protected by the ADA?
  Mr. GEORGE MILLER of California. Yes, I would.
  As we stated in the committee report on H.R. 3195, the committee 
supports the finding in Bartlett. Our report explains 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 informal or undocumented accommodations that have the effect 
of lessening the deleterious impacts of their disability.''
  Mr. STARK. I want to thank the chairman. It is indeed our full 
intention to ensure that the civil rights law retains its focus on 
protecting individuals with disabilities and not the interests of 
entities that may need to address their practices in accordance with 
the ADA.
  I look forward to working with the chairman to continue to protect 
individuals with specific learning disabilities to ensure that 
unnecessary barriers are not being erected in their path.
  I want to thank the chairman, the distinguished ranking member, our 
colleague from Wisconsin, and the majority leader for their work on 
this landmark legislation.
  Mr. GEORGE MILLER of California. I reserve the balance of my time.
  Mr. McKEON. Mr. Speaker, I am happy to yield now 3 minutes to the 
gentleman from Illinois (Mr. Shimkus).
  Mr. SHIMKUS. I thank the gentleman.
  Mr. Miller, thank you for the good work on this. I'm planning, as 
many of us are, to be highly supportive of it.
  I just want to bring to the attention of the Chamber an article that 
was in USA Today, September 4. We're talking about disabilities here 
and the disabilities act, and also remind people, as a teacher of 
government and history of 4 years, the process of how a bill becomes a 
law.
  We had a vote last night that passed a bill. It has not yet become 
law. In essence, we still have done nothing to ease the energy crisis, 
and this article highlights ``Gas Prices Confine Sick People.'' Some 
have to cut back on traveling, treatment, such as dialysis or 
chemotherapy. The picture here is a visit to a Lou Gehrig's, ALS, 
clinic; and one of the quotes is saying, ``People are going to depend 
on us more because their friends and families can't afford to transport 
them in their cars.''
  When we've been fighting so hard for an energy policy and energy 
debate, many times I would come to the floor to say energy is a 
variable in everything that we do in our society. It's a variable in 
the cost of doing the job here as we use power to generate electricity, 
air-conditioning, and, of course, communications. It's a part of the 
educational environment as we find schools having to adjust 
transportation schedules on diesel fuel. It is a critical portion of 
how we can meet the needs of the disabled.
  And one of the places they point out here is in Sacramento, the 
disabled individuals can't get services because they can't afford to 
drive to reach the services. Again, this is not me. This is

[[Page 19436]]

USA Today on 4 September. Pretty big article.
  We have to move a bill that the President will sign. We have to have 
a comprehensive policy that brings in all the above. I personally like 
coal. I personally like renewable fuels. I personally like nuclear 
power. I personally like oil shale, and I like oil sands. I like wind. 
I like solar.
  If we do not have a comprehensive energy policy that helps stabilize 
and bring costs down, we can pass all the pieces of legislation we want 
to in the world but the disabled are still going to be harmed, 
especially in areas that I represent, which is rural southern Illinois, 
where to get a job, get health care, you have to drive a long distance.
  Mr. GEORGE MILLER of California. I yield myself 30 seconds to say I 
think the House addressed many of the concerns, Mr. Shimkus, yesterday 
in the legislation, the comprehensive energy legislation that we passed 
that deals with the issues of lowering costs to consumers and taxpayers 
and increasing the energy resources of the United States.
  I would also say if we don't pass this piece of legislation, they 
won't have any jobs to drive to because they continue to get 
discriminated against.
  With that, I would like to yield 3 minutes to the gentleman from New 
Jersey (Mr. Andrews), a member of the committee.
  Mr. ANDREWS. Mr. Speaker, I rise in strong support of this 
legislation. I would like to add my voice in congratulations to Mr. 
Hoyer, Mr. Sensenbrenner, Chairman Miller, and Mr. McKeon for their 
outstanding cooperation in this regard.
  Today is Constitution Day. Over 200 years ago, the Constitution of 
our country was ratified. As majestic a document as it is, it has been 
an imperfect delivery and realization of that document because, over 
time, people have been left out of its benefits and privileges. 
Throughout our history, people with a disability have been among those 
left out of the many privileges of governments and economy in our 
country.
  In 1990, the Congress, under the first President Bush, took a major 
step forward in remedying that injustice and discrimination. But sadly, 
since 1990, erroneous court decisions have stripped persons with a 
disability of the rights that they thought they had under that 1990 
law.
  Today we are working together to remedy that problem and fix it. This 
is a victory for common sense and for merit over ignorance and 
obliviousness. More importantly, it's a victory for human beings who 
will be very profoundly helped by this law.
  There was a man who got a job with a major retail corporation in this 
country, and he's diabetic. When he first started work, his supervisor 
understood that for this worker to be productive, he needed a special 
lunch break in the middle of his work day so he could deal with his 
blood sugar needs and stay healthy and be productive.
  So the man gets a new supervisor. The new supervisor comes in and 
doesn't understand that need, doesn't permit the lunch break, and the 
man's unable to do his work. So he files suit under the Americans with 
Disabilities Act, and the court says he doesn't win the case because 
he's not disabled. Diabetes is not enough of a disability to remedy 
this person's concern.
  Now that's just wrong. And the other body understands it, both 
parties in this body understand it, the American people understand it.
  What we have done in this Act is to restore the commonsense, 
meaningful definition of what ``disability'' means, not so that people 
with disabilities get special privileges, but so they get the same 
rights and opportunities that everybody else is guaranteed in this 
country under the law.
  Again, I congratulate Mr. Hoyer and Mr. Sensenbrenner, in particular, 
for working together and bringing together a broad coalition behind 
this bill. And on this Constitution Day, the House will set a mark in 
history and continue the progress so that people who work with a 
disability can achieve and thrive and succeed in our country and in our 
economy.
  I would urge both Republicans and Democrats to vote ``yes'' on this 
very substantial piece of legislation.
  Mr. McKEON. Mr. Speaker, I reserve my time.
  Mr. GEORGE MILLER of California. Mr. Speaker, I now yield 3 minutes 
to the gentleman from Rhode Island (Mr. Langevin).

                              {time}  1145

  Mr. LANGEVIN. I thank the gentleman for yielding.
  Mr. Speaker, I rise in strong support of S. 3406, the Senate-approved 
ADA Amendments Act of 2008. Passage of this bill will clear the way for 
the President's signature and finally renew our promise to the American 
people that discrimination in any form will never be tolerated.
  I would like to thank my good friend, Majority Leader Steny Hoyer, 
who has been a real leader and champion on behalf of the disabilities 
community. I would also like to express my appreciation to Chairman 
Miller for his continued leadership on this critical issue, as well as 
Congressman Jim Sensenbrenner. This has truly been a bipartisan effort.
  The ADA was groundbreaking civil rights legislation. And as someone 
who has lived with the challenges of a disability both before and after 
the ADA's enactment in 1990, I have experienced firsthand the profound 
changes that this law has effected within our society.
  The bill before us today reaffirms the protections of the ADA and 
upholds the ideals of equality and opportunity on which this country 
was founded. In July, we celebrated the 18th anniversary of the ADA. It 
was a day to reflect on our past accomplishments, our current 
challenges, and future opportunities. I can think of no better way to 
honor the spirit of this landmark bill and the spirit of all those who 
fought for its passage than by passing the ADA Amendments Act and 
restoring Congress' intent to ensure the ADA's broad protections.
  Mr. Speaker, people with disabilities represent a tremendously 
valuable, and yet in many ways untapped, resource in this country. By 
fostering an environment of inclusion and empowerment, we can provide 
the means for every individual to fulfill his or her God-given 
potential.
  The ADA Amendments Act will help us realize this important goal. I 
strongly urge my colleagues to support the passage of this bill and 
send it to the President for his signature. Again, I thank all those 
who were part of making this day possible, particularly, again, our 
majority leader, Steny Hoyer, for his great leadership.
  Mr. McKEON. Mr. Speaker, may I inquire as to how much time is 
remaining?
  The SPEAKER pro tempore. The gentleman from California has 11 
minutes. The gentleman from California has 3\1/2\ minutes.
  Mr. GEORGE MILLER of California. Mr. Speaker, I yield 1 minute to the 
gentleman from Maryland, the majority leader, Mr. Hoyer. And as he's 
taking the well, I just wanted to again acknowledge what all of our 
colleagues have acknowledged and so many people in the disabilities 
community have acknowledged and known for a long time, his champion of 
this act. And he has done it year after year after year. He has tended 
to it, he has watched after it, he has argued about it, and he has 
encouraged many of us to get involved in these amendments. And these 
are crucial amendments so that the original intent and the purpose and 
the opportunities provided by this act are realized. He and Mr. 
Sensenbrenner did a magnificent job of shepherding this.
  Many people don't know this who haven't been involved, but the 
negotiations around this legislation were sort of 24-7 for the last 
year, with a very diverse group of people, all of whom wanted to see 
the act amended and improved, and finally came together under the 
leadership of Mr. Hoyer. And that's why we're here today. And that's 
why the Senate and the House are going to pass this and we're going to 
have a ceremony with the President signing these amendments. Thank you 
very much.

[[Page 19437]]


  Mr. HOYER. I thank the chairman for his remarks. And I thank Mr. 
McKeon for his leadership and willingness to work together on a 
difficult issue.
  I certainly want to acknowledge and thank my friend Jim 
Sensenbrenner, Congressman Sensenbrenner, who has been chairman of the 
committee, the Judiciary Committee, who has been a leader in this 
Congress, and his wife, Cheryl. Cheryl, like the young man we just saw 
speak, Congressman Jim Langevin, has shown great courage, but also has 
shown that disability is not disabling; that we ought to look at the 
ability people have, what they can do, not what they can't do. All of 
us can't do certain things. I urge people to look at what people can 
do. And that's what this bill was about in 1990. That's what this bill 
is about today.
  And I am very pleased to be here to speak on behalf of this bill. I 
think this bill may well pass unanimously, and the public might 
conclude, therefore, that this was not contentious and difficult, it 
was both--not contentious in terms of enabling those with disabilities 
to be fully included in our society, but how to do that; how to do that 
in the context of making sure that the business community could live 
with this, that the disabilities community could live with this, and 
that we did, in fact, accomplish the objectives that we intended.
  I want to thank as well the Chamber of Commerce, the National 
Association of Manufacturers and other business groups who came 
together with the disabilities community with a common objective. Randy 
Johnson worked on behalf of the Chamber of Commerce. And Randy Johnson, 
at a press conference that was held when the Senate passed this bill 
just a few days ago, said that he was a staffer here in 1988 and '89 
and '90 when we passed the Americans with Disabilities Act. And he made 
the observation that--he sat on the floor, he worked with the 
leadership on the Republican side and the Democratic side, worked 
particularly with my friend, Steve Bartlett, Congressman Steve Bartlett 
from Texas, who was intimately involved in fashioning and working out 
the compromises necessary to overwhelmingly pass the ADA in 1990. And 
he said it was clear then that the intent of Congress had been 
misconstrued by the Supreme Court--this is Randy Johnson, Republican 
staffer, leader now in the Chamber of Commerce of the United States who 
helped fashion this bill. And this bill really says, yes, we agree with 
that in a bipartisan way. The Supreme Court misinterpreted what our 
intent was. And our intent was to be inclusive.
  Civil rights bills are intended to be interpreted broadly. Why? 
Because we want to make sure that every American has the benefits that 
America has to offer, the opportunities that America has to offer, and 
to empower them to help America be a better country, to bring their 
talents and their skills and their motivation to bear in the public and 
private sectors.
  I want to thank as well Nancy Zirkin, Andy Imperato, my--as I call 
him my lawyer, Chai Feldblum, who has worked so hard on this for now 
20-plus years. It's been 18 years since we passed the ADA, but as Mr. 
Miller knows, it's been 20-plus years--25 years really--that we've been 
working on getting to this point.
  I also want to thank Mike Peterson of H.R. Policy and Jerry Gillespie 
of the National Association of Manufacturers.
  There are so many people that I could spend the next 5 or 10 minutes 
mentioning just name after name after name who made this happen. I 
won't do that, not to diminish them in any way, but to say that this is 
the result of the efforts of many--not of me, but of many; not of Mr. 
Miller alone or the ranking member alone or Mr. Sensenbrenner, but many 
dedicated to this cause.
  We are here to build on the accomplishments of the landmark 
Disabilities Act of 1990. We wouldn't be here at all, however, without 
the hard work, frankly, of a very close friend of mine, former Member 
of Congress, Tony Coelho. Tony Coelho had a vision. Tony Coelho suffers 
from epilepsy. There is nobody who knows Tony Coelho that thinks he is 
not able to do anything, everything, and all things. Tony Coelho 
empowered all of us to think larger, to understand how to bring about 
real change for those with disabilities.
  Tony Coelho, an epileptic, was asked to leave the seminary because he 
had epilepsy because the church concluded he really couldn't do the 
job. It was the church's loss and our gain. He made a tremendous 
contribution to this institution. But much more importantly, in the 
last some 20 years that he has not been a Member of this institution he 
continued to make an extraordinary contribution, not just to those with 
disabilities, but to our society, in expanding our consciousness and 
inclusion.
  And I mention his name, but I also want to thank my friend, Steve 
Bartlett. Steve Bartlett, Congressman, then the Mayor of Dallas, now in 
the private sector, but engaged in the eighties and nineties and 
engaged in the passage of this bill today, was extraordinarily helpful 
to us. In 1990, the original ADA was the product of the vision of so 
many.
  I also want to thank my former staffer, Melissa Schulman, who worked 
indefatigably as we passed the ADA in 1990.
  When the first President Bush signed the Americans with Disabilities 
Act 18 years ago, America became the world's leader on this central 
test of human rights. The ADA was a project in keeping with our oldest 
principles and founding ideals. As President Bush the first, as I call 
him, put it at the signing ceremony, and I quote, ``Today's 
legislation,'' he said, ``brings us closer to that day when no 
Americans will ever again be deprived of their basic guarantee of life, 
liberty and the pursuit of happiness.''
  Thanks to the ADA, that day became closer on July 26, 1990. Thanks to 
the passage of this bill today and the signatures Mr. Miller indicated 
next week, and the expected signatures of the President, with hopefully 
the first President Bush present, tens of millions of Americans with 
disabilities will now enjoy even fuller rights, and the rights that we 
intended them to enjoy when we passed the ADA--the right to use the 
same streets, theaters, restrooms or offices, the right to prove 
themselves in the workplace, to succeed on their talent and drive 
alone.
  We've accomplished much in terms of public accommodations, in terms 
of reasonable accommodations. I was sitting there with Michele 
Stockwell, my policy director, as we watched Jim Langevin give his 
speech. What a wonderful accommodation he has in that chair that stands 
up. Weren't all of you impressed when he said, ``I rise to support this 
legislation?'' ``I rise.'' And he does rise. Why? Because he has a 
reasonable accommodation which, notwithstanding the failure of his legs 
to work the way he would like them to work, his chair reasonably 
accommodates and has him rise to speak to this body as a testimony to 
the consciousness of having been raised to make sure that a person like 
Jim Langevin--of great ability, of great ability, not disability, but 
of great ability--can come here, having been shot at the age of 16 
inadvertently, by accident, disabled, graduated from high school, 
graduated from college, elected to the Rhode Island House, elected to 
Secretary of State of his State, and now a Member of this body. What a 
testimony to making sure that we made sure Jim Langevin could get 
through the door; we made sure Jim Langevin could get the kind of 
education he wanted and have access to that education. What a testimony 
to what this Congress has done, but more importantly, what so many 
courageous people with a disability have shown us all, that a 
disability is not disabling. It may rob us of a single or maybe even 
multiple ways that some people do things, but not of all things.
  Sadly, as a result of the Supreme Court's decision, we have yet to 
live up to our promise fully. That's what we're trying to do today. 
We've made progress on access, we've made progress on listening 
devices, a lot of progress. One of the places we haven't made the 
progress we wanted to was

[[Page 19438]]

employment. So many people want to work, want to be self-sufficient, 
want to be enterprising, want to have the self-respect of earning their 
own way, but have been shut out. And the Supreme Court didn't help us. 
That's what this bill is about.
  Over the last 18 years, the Court has chipped away at that promise 
and at Congress' clear original intent. We said we wanted broad 
coverage for people with disabilities and people regarded as disabled. 
Important phrase, ``regarded as disabled.'' What the Supreme Court 
really said, well, if you can make sure that your disability does not 
disable you. Tony Coelho takes medicine for his epilepsy, and so he 
functions. And if you saw him, you would say he's functioning fine. But 
if I said, but I won't hire you, Tony, because you have epilepsy, the 
Court said that was okay. Nobody on this floor believed that was the 
case. If he was discriminated against because he had a disability but 
could do the job, we said that's wrong. The Court did not agree with 
us, and we're now changing that and making sure that our intent will be 
lived out.
  We never expected that the people with disabilities who work to 
mitigate their conditions would have their efforts held against them, 
but the courts did exactly that. Those narrow rulings, which will be 
changed by this legislation, have closed the door of opportunity for 
millions of Americans. We're here today to bring those millions of our 
fellow citizens back to where they belong--where we want them, where we 
need them, under the protection of the ADA.
  By voting for final passage of the ADA Amendment Act, we ensure that 
the definition of disability will henceforth be construed broadly and 
fairly. We make it clear that those who manage to mitigate their 
disabilities can still be subject to discrimination; we know that 
intuitively and practically. This legislation says we know it 
legislatively. And we recognize that those regarded as having a 
disability are equally at risk and deserve to be equally protected.

                              {time}  1200

  This bill, which was approved by the Senate last week unanimously, 
has come so close to a signature thanks to the tireless work of the 
members of the disability community, leaders from both parties and 
business groups, a coalition as broad and deep as the one that created 
the original ADA.
  I want to recognize the cosponsor of this bill, as I said earlier, 
Jim Sensenbrenner, tireless in his advocacy, and his wife, Cheryl. I 
want to thank my good friend Tony Coelho. As I said at a press 
conference last week, I have served in the Congress for 28 years. There 
will be a time when I will retire. And I will look back on my career. 
And one of the proudest achievements I will have is the work that I 
have done at Tony's insistence and request on behalf of the Americans 
with Disabilities Act and those who are challenged by being shut out of 
our society.
  Finally, it is my honor to dedicate this bill to a pioneering 
disability advocate and an inspiration behind the ADA. He is listening 
to us. He died some years ago. His name was Justin Dart. Justin Dart, 
like Jim Langevin, was in a wheelchair. It didn't disable him. Indeed, 
it empowered him. It empowered him to educate all of us. It empowered 
him to educate those with disabilities as to what they could do and 
accomplish by their efforts to join together, to educate us and to 
educate the country. His bride, Yoshiko Dart, carries on that torch.
  When Justin Dart spoke last that I heard him at the White House, he 
said I may not be with you for a long time. But I want you to keep on 
keeping on. Justin, that is what we do today.
  Mr. McKEON. Mr. Speaker, I yield myself the balance of the time.
  I commend the leader for his eloquence and for the great work that he 
has done on this bill; likewise Mr. Sensenbrenner, Mr. Miller, Mr. 
Langevin, and all those who have worked so hard for bringing forth this 
bill and for bringing it to this point.
  Back in June, I had the privilege to join advocates for Americans 
with disabilities and many of the Congressional leaders who made that 
bill possible at a rally in support of this bill. At that time, we made 
it clear that we needed to get a bill to the President for his 
signature this year. This is a bill that cannot wait another year. That 
is why I'm so pleased to be standing here preparing to give final 
approval to this important legislation.
  Once again I want to recognize Chairman Miller, the leaders of the 
Judiciary, Transportation and Infrastructure, Energy and Commerce 
Committees and the members of leadership on both sides of the aisle for 
shepherding this bill through the process and insisting on an open, 
inclusive process. This bill is better for it. I also want to recognize 
the members of my staff who worked hard on this legislation, Jim 
Paretti, Ken Serafin and Ed Gilroy from my staff helped to make this 
bill a reality. This is a bill that fulfills our goal of providing 
strong, balanced and workable protections to ensure that individuals 
with disabilities can participate more fully in the workforce and in 
our society.
  Mr. Speaker, there are some other comments I would like to make at 
this time. I think this bill has been a marvelous example of how 
Congress can work together. It's one that we've worked on now for a 
number of years. In the last Congress, Chairman Sensenbrenner 
introduced this bill. It was introduced in many committees. Many 
hearings were held. Markups were held. It carried over into this 
Congress. Under a change of leadership it moved forward. Again, 
hearings were held. Markups were held. It was passed through the body 
here in the House. It went to the other side. The other body took this 
bill up, passed it through regular order and improved the bill. And we 
find it now back before us in the concluding weeks of this Congress. 
All of us have worked together to make it a good product that will help 
the individuals with disabilities that it's meant to help. And I think 
it makes me proud to be a part of this body to have been able to 
participate in this process.
  Last night we participated in a process that made me not so proud of 
this body. I understand political process. I understand that we have an 
election coming up. And I understand that there are times when politics 
rises above policy. But it still disappointed me to see a bill 
presented Monday night, no bipartisanship, no hearings, no regular 
process. Right up here above us it says, ``Let us develop the resources 
of our land, call forth its powers, build up its institutions.'' It's a 
direction that we're supposed to be operating under.
  This bill was brought up Monday night to address a very, very 
important issue in our country. We are dependent upon other countries 
for resources to run our energy, to run this country. It puts us in a 
very difficult position. It's an issue that is equally as important I 
think as this bill that we are working on here right now. If it had 
been addressed in the same way, if we had been able to work together 
the way we've worked on this bill, I think the country would have been 
much better served. As it is, we are left with a political statement, a 
bill that everybody in this body knows is going nowhere, that will do 
nothing to actually solve the problem of energy, something that will be 
pushed into the next Congress. Hopefully at that point we can sit down 
and as adults, as Americans, as leaders that have been elected by the 
people we serve to come here and work through a good process to really 
solve a problem that is very, very important to our constituents and to 
our Nation and to our growth in a time of very serious issues 
confronting our country. It's my hope that we will be able to do that. 
I'm saddened by what happened yesterday. But as I said, I understand 
the process. I understand we're facing an election.
  Having said that, seeing this body work at its best and I think at 
very, very far from its best, I do urge passage of the ADA Amendments 
Act.
  I yield back the balance of my time.
  Mr. GEORGE MILLER of California. Madam Speaker, I yield myself such 
time as I may consume.
  The SPEAKER pro tempore (Mrs. Tauscher). The gentleman is recognized 
for 1\1/2\ minutes.

[[Page 19439]]


  Mr. GEORGE MILLER of California. I fully understand the deep 
disappointment on behalf of the Republican Members, not all, but those 
who did not vote for the legislation last night to create a 
comprehensive energy policy for the future of this Nation. They were 
intent upon killing it. They fell short. They fell short because it was 
a bipartisan bill. A number of their Members crossed the aisle to vote 
for the legislation because they recognize this was about taking us to 
a new energy future, a future that no longer continued year after year 
after year, as we have under Republican control, increased dependence 
upon international oil from nations that are hostile to us in so many 
ways, of nations who inflate our economy in so many ways.
  This legislation will make available billions of barrels of oil that 
is from the Minerals Management leasing, the administration of oil on 
the Outer Continental Shelf, more billions of barrels of oil in Alaska, 
in the National Petroleum Reserve that holds probably more oil than the 
OCS, that can be opened under legislation. And the royalties that are 
due this Nation will be put into a trust fund to create the research 
and the development of renewable and alternative energy resources that 
are so important if in fact we are going to break our dependence on 
foreign oil and on fossil fuels as a bedrock of the energy policy of 
this Nation. It is also going to stop the royalty holidays that oil 
companies who are making the largest record earnings in history are 
doing.
  With that, I would like to return to the matter at hand and to thank 
the ranking member from across the aisle, Mr. McKeon, for all his work. 
I want to thank again Mr. Hoyer and Mr. Sensenbrenner. I certainly want 
to thank the staffs of this committee, on our side Sharon Lewis who 
demonstrated great leadership on this issue, Jody Calemine, Brian 
Kennedy, Chris Brown, our intern Tom Webb; on their side Jim Paretti, 
Ed Gilroy and Ken Sarafin; and Mr. Hoyer's staff, Michelle Stockwell 
and Keith Aboshar; and on the Judiciary staff Heather Sawyer and David 
Lockman. And I failed to mention the Bazelon Center and the Human 
Resources Policy Association.
  Mr. HOYER. Madam Speaker, Mr. Sensenbrenner and I submit the 
following regarding S. 3406:

       For over a decade, courts have narrowed the scope of the 
     ADA and have thereby excluded many individuals whom Congress 
     intended to cover under the law. The unfortunate impact of 
     too narrow an interpretation has been to erode the promise of 
     the ADA.
       With the passage of the ADA Amendments Act (ADAAA) today, 
     we ensure that the ADA's promise for people with disabilities 
     will be finally fulfilled. Our expectation is that this law 
     will afford people with disabilities the freedom to 
     participate in our community, free from discrimination and 
     its segregating effects, that we sought to achieve with the 
     original ADA.
       The House of Representatives passed the ADA Amendments Act, 
     H.R. 3195, on June 25, 2008, by an overwhelming vote of 402-
     17. The purpose of this legislation was to restore the intent 
     of Congress to cover a broad group of individuals with 
     disabilities under the ADA and to eliminate the problem of 
     courts focusing too heavily on whether individuals were 
     covered by the law rather than on whether discrimination 
     occurred.
       That commitment has now been echoed by passage in the 
     Senate of the ADA Amendments Act, S. 3406, by unanimous 
     consent. We welcome the opportunity to pass today the version 
     of the ADA Amendments Act passed by the Senate, here in the 
     chamber where it began its journey on July 26th, 2007.
       We are particularly pleased with the alliance of business 
     and disability representatives who came together to work with 
     us on this bill and support its passage throughout both 
     houses of Congress. Last January, we personally encouraged 
     these groups to work together to reach an agreement that 
     would work well for both people with disabilities and for 
     entities covered under the law. We are pleased that they have 
     been able to do so throughout this bill's legislative 
     process.
       H.R. 3195, the ADA Amendments Act passed by the House, and 
     S. 3406, the ADA Amendments Act passed by the Senate, are 
     identical in most important respects.
       Both H.R. 3195 and S. 3406 contain identical language 
     concerning mitigating measures, episodic conditions, major 
     life activities including major bodily functions, treatment 
     of claims under the ``regarded as'' prong, ensuring 
     regulatory authority over the definition of disability, and 
     conforming Section 504 of the Rehabilitation Act to be 
     consistent with the changes made by the ADAAA.
       Hence, the Report of the House Committee on Education and 
     Labor and the Report of the House Committee on the Judiciary, 
     as well as our Joint Statement introduced into the 
     Congressional Record on June 25, 2008, continue to accurately 
     convey our intent with regard to the bill we are passing 
     today.
       While the intent is the same, as discussed more fully 
     below, S. 3406 takes a slightly different approach than H.R. 
     3195. Consequently, we want to make it clear that where the 
     House Committee Reports and our joint statement used the term 
     ``materially restricts'' to establish points in various 
     examples, those examples should be read to convey the same 
     points, and the term ``materially restricts'' should be 
     understood to refer to the less demanding standard for the 
     term ``substantially limits'' prescribed by both H.R. 3195 
     and S. 3406. For example, the statement in the House 
     Education and Labor Report that ``the Committee expects that 
     a plaintiff such as Littleton could provide evidence of 
     material restriction in the major life activities of 
     thinking, learning, communicating and interacting with 
     others'' should be understood to mean that the Committee 
     expects that a plaintiff such as Littleton could provide 
     evidence of substantial limitation in thinking, communicating 
     and interacting with others. (See Littleton v. Wal-Mart 
     Stores, Inc., 231 Fed. Appx. 874 (11th Cir. 2007)).
       The key difference between the two bills is that S. 3406 
     uses a different means to achieve the same goal that we 
     achieved with H.R. 3195. As we explain below, we are 
     comfortable accepting this approach.
       In H.R. 3195, we achieved this goal by redefining the term 
     ``substantially limits'' to mean ``materially restricts'' in 
     order to indicate to the courts that they had incorrectly 
     interpreted the term ``substantially limits'' in Toyota Motor 
     Mfg. of Kentucky, Inc. v. Williams, and to convey to the 
     courts our expectation that they would apply a less demanding 
     standard of severity than had been applied by the Supreme 
     Court.
       Our colleagues in the Senate, however, were uncomfortable 
     with creating a new term in the statute. Hence, they achieved 
     the same goal through a different means.
       Instead of redefining the term ``substantially limits,'' S. 
     3406 states that such term ``shall be interpreted 
     consistently with the findings and purposes'' of the ADA 
     Amendments Act. This is a textual provision that will legally 
     guide the agencies and courts in properly interpreting the 
     term ``substantially limits.'' With regard to the findings 
     and purposes that the textual provision requires the agencies 
     and court to use, S. 3406 incorporates all of the findings 
     and purposes of H.R. 3195, including statements that Congress 
     intended for the ADA to provide broad coverage and that this 
     legislation rejects the Supreme Court's decisions in Sutton 
     and Williams that inappropriately narrowed the scope of 
     protection of the ADA.
       In order to explain how it intended the definition of 
     ``substantially limits'' to be interpreted, the Senate added 
     findings which highlighted the fact that the Williams 
     decision placed a too high threshold on the definition of 
     substantially limits and that the EEOC's interpretative 
     regulations were similarly drafted or interpreted to create a 
     burden not contemplated by the Congress. Consistent with 
     these findings, the Senate added two purposes which directed 
     the EEOC to amend its regulations to reflect the purposes of 
     the ADA as amended by the ADAAA and which noted that the 
     thrust of ADA inquiry should be directed to the compliance 
     obligations of the covered entities rather than the scope of 
     the disability experienced by the individual asserting 
     coverage under the Act.
       While we believe that the approach we adopted in H.R. 3195 
     would have been workable for the courts--i.e., providing a 
     new definition of ``substantially limits'' in order to convey 
     to courts our intention that they should apply a lower 
     standard of severity than they previously had--we accept the 
     considered judgment of our colleagues in the Senate that 
     their approach achieves the same end, but in a manner more 
     suitable to their interests.
       S. 3406 also modifies the rule of construction that we had 
     placed in H.R. 3195. Under the Senate's construction, 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.'' We understand 
     that this provision will have the same meaning as the rule of 
     construction that we had included in H.R. 3195, but with a 
     clarification that the courts may not interpret the 
     definition of disability in a manner inconsistent with the 
     terms of the ADA. That, of course, is true.
       In addition, the changes made by S. 3406 will send an 
     important signal to the courts. We expect that courts 
     interpreting the ADA after these amendments are enacted will 
     not demand such an extensive analysis over whether a person's 
     physical or mental impairment constitutes a disability. Our 
     goal throughout this process has been to simplify that 
     analysis.
       With the passage of the ADA Amendments Act today, we 
     finally fulfill our promise to tear down the barriers of 
     ignorance and misinterpretation that make up an unpardonable 
     ``wall of exclusion'' against people with disabilities. See 
     George H. W. Bush, Remarks on Signing the Americans with 
     Disabilities Act of 1990 (July 26, 1990).

[[Page 19440]]

       We are grateful to the individuals and advocates who have 
     worked tirelessly to ensure the civil rights and inclusion of 
     people with disabilities in every aspect of life. This 
     includes work during various stages of the bill to bring it 
     to a successful conclusion.
       A large group of individuals worked closely with us as we 
     developed the second ADA Restoration Act that was introduced 
     on July 26, 2007:
       Tony Coelho, Immediate Past Board Chair of the Epilepsy 
     Foundation and Former U.S. Representative; Cheryl 
     Sensenbrenner, Board Chair of the American Association of 
     People with Disabilities (AAPD); Andy Imparato, AAPD; Sandy 
     Finucane, Epilepsy Foundation and her lawyers at the 
     Georgetown Federal Legislation and Administrative Clinic: 
     Heather Sawyer, Kevin Barry and Chai Feldblum; Jennifer 
     Mathis, Bazelon Center for Mental Health Law; Abby Bownas and 
     Shereen Arent, American Diabetes Association (ADA); Curt 
     Decker and Ken Shiotani, National Disability Rights Network 
     (NDRN); Arlene Mayerson and Marilyn Golden, Disability Rights 
     Education and Defense Fund (DREDF); Claudia Center, Legal Aid 
     Society of CA; Janna Starr, Paul Marchand and Erika Hagensen 
     of The Arc/UCP Public Policy Collaboration; Denise Rozell, 
     Easter Seals; Lee Page, Paralyzed Veterans Association; Bobby 
     Silverstein, Center for the Study and Advancement of 
     Disability Policy, and John Lancaster, National Council on 
     Independent Living (NCIL).
       In January 2008, we urged representatives from both 
     communities to sit down with each other and to understand 
     each other's needs and concerns. We appreciate the leadership 
     role displayed in these conversations by the following 
     individuals on behalf of the disability community: Sandy 
     Finucane, Epilepsy Foundation; Professor Chai Feldblum, 
     Georgetown Law; Andy Imparato, AAPD; Jennifer Mathis, Bazelon 
     Center for Mental Health Law; Curt Decker, NDRN; John 
     Lancaster, NCIL.
       We appreciate the leadership role displayed in these 
     conversations by the following individuals on behalf of the 
     business community: Randy Johnson and Michael Eastman, U.S. 
     Chamber of Commerce; Mike Peterson, HR Policy Association; 
     Jeri Gillespie, National Association of Manufacturers; Mike 
     Aitken and Mike Layman, Society for Human Resource 
     Management.
       We appreciate the intensive work done by the core legal 
     team in these discussions, led by Professor Chai Feldblum and 
     Jennifer Mathis for the disability negotiators, ably assisted 
     by Kevin Barry, Jim Flug, John Muller and Emily Benfer, and 
     led by Mike Eastman, Lawrence Lorber, Proskauer Rose, LLP, 
     and Mike Peterson.
       We benefited greatly from the fact that former colleagues 
     in both Congress and the Administration lent their support to 
     this effort, including former U.S. Representative Steve 
     Bartlett, former U.S. Representative Tony Coelho, former 
     Senator Robert Dole, and former Attorney General Richard 
     Thornburgh.
       We appreciate the personal leadership role taken by Nancy 
     Zirkin and Lisa Bornstein of the Leadership Conference in 
     Civil Rights in making this a priority for the civil rights 
     community.
       Finally, at the risk of leaving out some individuals, we 
     want to recognize some of the additional countless 
     individuals who helped with educating Members of Congress, 
     doing important coalition and media work, and providing legal 
     input on the bill as it progressed through Congress, from its 
     first stages through the final vote today: Anne Sommers, 
     AAPD; Angela Ostrom, Donna Meltzer, Hans Friedhoff, Ken 
     Lowenberg, Kimberli Meadows, and Lisa Boylan, Epilepsy 
     Foundation; Day Al Mohamed, American Psychological 
     Association; Deb Cotter, NCIL; Joan Magagna and Ron Hager, 
     NDRN; Mistique Cano, Maggie Kao and Robyn Kurland, Leadership 
     Conference for Civil Rights; Peggy Hathaway and Jim Wiseman, 
     United Spinal Association; Annie Acosta, The Arc/UCP 
     Disability Policy Collaboration; Lewis Bossing, Bazelon 
     Center for Mental Health Law; John Kemp, U.S. International 
     Council on Disabilities; Bebe Anderson, Lambda Legal Defense 
     Fund; Robert Burgdorf, UDC law professor; Rosaline Crawford, 
     National Association of the Deaf (NAD); Mark Richert, 
     American Foundation for the Blind; Eric Bridges, American 
     Council for the Blind; Jessica Butler, Council of Parent 
     Attorneys and Advocates; Michael Collins, Julie Carroll and 
     Jeff Rosen, NCD; Steve Bennett, UCP, Lise Hamlin, Hard of 
     Hearing Association of America; Laura Kaloi, National Center 
     for Learning Disabilities; Donna Lenhoff and Gary Phelan, 
     National Employment Lawyers Association (NELA); Darrin Brown 
     and Evelyn Morton, AARP; Dan Kohrman, AARP Foundation and 
     NELA; Katy Beh Neas, Easter Seals; Andrew Sperling, National 
     Alliance on Mental Illness; Toby Olson, Washington State 
     Governor's Committee on Disability Issues and Employment; 
     Myrna Mandlawitz, Learning Disabilities Association; Ari 
     Ne'eman, Autistic Self Advocacy Network; Shawn O'Neail, 
     National Multiple Sclerosis Society; Laura Owens; APSE: The 
     Network on Employment; Cindy Smith, CHADD; Jim Ward, ADA 
     Watch/National Council on Disability Rights; Nathan Vafaie, 
     National Health Council; David Webbert, Johnson & Webbert; 
     Joanne Lin, Michelle Richardson, and Deborah Vagins, ACLU 
     Washington Legislative Office; Lynne Landsberg and Kate 
     Bigam, Religious Action Center of Reform Judaism, Amy Rosen, 
     United Jewish Communities; Elissa Froman, National Council of 
     Jewish Women; Jayne Mardock, National Kidney Foundation; Jack 
     Clark and Mark Freedman, U.S. Chamber of Commerce; Tim Bartl, 
     HR Policy Association; Recardo Gibson, SHRM; Bo Bryant, 
     McDonald's; Keith Smith, Ryan Modlin and Bob Shepler, 
     National Association of Manufacturers; Ty Kelley, Food 
     Marketing Institute; and Jason Straczewski, International 
     Franchise Association.
       Regardless of the work done by advocates, however, it is 
     ultimately we in Congress who must get the job done. We 
     applaud the commitment of Congressman George Miller, Chair, 
     and Congressman Buck McKeon, Ranking Member, Committee on 
     Education and Labor; Congressman John Conyers, Chair, and 
     Congressman Lamar Smith, Ranking Member, Committee on 
     Judiciary; Congressman Jerry Nadler, Chair, and Congressman 
     Trent Franks, Ranking Member, Subcommittee on the 
     Constitution, Civil Rights, and Civil Liberties; Congressman 
     John Dingell, Chair, and Congressman Joe Barton, Ranking 
     Member, Committee on Energy and Commerce; Congressman James 
     Oberstar, Chair, and Congressman John Mica, Ranking Member, 
     Committee on Transportation and Infrastructure for bringing 
     this bill successfully through their committees. We applaud 
     our 400 colleagues who voted with us to pass the ADA 
     Amendments Act this past June and we applaud the Senate that 
     unanimously passed the ADA Amendments Act last week.
       And, of course, there is no way we could have done all the 
     work that we did on this bill without the dedicated 
     assistance of our staff and the staff of the committees. So, 
     we would particularly like to thank Michele Stockwell, Keith 
     Abouchar, Michael Lenn, Sharon Lewis, Heather Sawyer, Mark 
     Zuckerman, Jim Paretti, Ed Gilroy, Brian Kennedy, Paul 
     Taylor, David Lachmann, Alex, Nock, Thomas Webb, Jody 
     Calemine, Tico Almeida, Chris Brown, and Ken Serafin.
       What really matters, when all is said and done, is the work 
     done by people with disabilities every day across this great 
     nation. The passage of the ADA Amendments Act today is 
     intended to ensure that they receive the simple, basic 
     opportunity to participate fully in all aspects of society. 
     We are grateful to have played a role in helping to make that 
     happen,

  Mr. VAN HOLLEN. Madam Speaker, I rise in strong support of S. 3406, 
the ADA Amendments Act of 2008. This bipartisan legislation, which will 
restore the original intent of the Americans with Disabilities Act, 
ADA, is long overdue.
  The passage of the ADA in 1990 helped millions of Americans with 
disabilities succeed in life and the workplace by making essential 
services that most Americans take for granted more accessible to 
individuals with disabilities. It was truly a landmark civil rights law 
to ensure that people with disabilities have protection from 
discrimination in the same manner as individuals are protected from 
discrimination on the basis of race, gender, national origin, religion, 
or age.
  In recent years, the Federal courts have erroneously eroded the 
protections for individuals under the ADA, which has created a new set 
of barriers for those with disabilities. This bill rejects the courts' 
narrow interpretation of the definition of disability, and makes it 
absolutely clear that the ADA is intended to provide broad coverage to 
protect anyone who faces discrimination on the basis of disability. It 
strikes a careful balance between the needs of individuals with 
disabilities and realities confronted by employers.
  Madam Speaker, the Congress is taking an important step towards 
restoring the original intent of the ADA. By doing so, we will help 
ensure that Americans with disabilities can lead independent and self-
sufficient lives. I urge my colleagues to support this much-needed 
legislation.
  Mr. COURTNEY. Madam Speaker, I rise in strong support of the 
Americans With Disabilities Act Amendments Act of 2008 (ADAAA), S. 
3406. I want to commend Majority Leader Hoyer and Chairman Miller for 
moving this bill so quickly after Senate passage late last week.
  As the Education and Labor Committee said in its report on H.R. 3195, 
this bill provides ``an important step towards restoring the original 
intent of Congress. The scope of protection under the ADA was intended 
to be broad and inclusive. Unfortunately, the courts have narrowed the 
interpretation of disability and found that a large number of people 
with substantially limiting impairments are not to be considered people 
with disabilities.''
  Unfortunately, the ADA has been misinterpreted by the courts 
resulting in a narrow view of those eligible to receive certain 
reasonable accommodations including individuals with

[[Page 19441]]

learning disabilities. Historically, certain individuals with learning 
disabilities seeking accommodations in higher education--including high 
stakes exams--have seen their access to testing accommodations severely 
undercut by testing companies not willing to consider and support that 
learning disabilities are neurologically based, lifelong disabilities 
that may exist in students with high academic achievement because the 
individual has been able to cope and mitigate the negative impact while 
simultaneously being substantially limited in one or more major life 
activities.
  Too many individuals with documented learning disabilities, including 
dyslexia, are denied access to easily administered and often low-cost 
accommodations that would make the critical difference in allowing them 
to demonstrate their knowledge. These amendments to the ADA do not 
provide any special treatment, but rather, ensure that each individual 
with a learning disability has every opportunity to apply for and 
receive a reasonable accommodation so he/she can move forward in his/
her chosen educational and career paths.
  This bill continues to reinforce what we stated in our bipartisan 
committee report, that ``the determination of whether an impairment 
substantially limits a major life activity is to be made on an 
individualized basis.'' There should be no attempt to discriminate 
against a class of individuals based on any one disability. For 
example, people with dyslexia are diagnosed based on an unexpected 
difficulty in reading. This requires a careful analysis of the method 
and manner in which this impairment substantially limits an 
individual's ability to read, which may mean a difference in the 
duration, condition or manner of reading--for example, taking more 
time--but may not result in a less capable reader.
  Together, we can ensure that the ADA is accurately interpreted to 
provide access to accommodations for those that have appropriately 
documented disabilities. By supporting and fostering the academic 
potential for these individuals, we reap the benefits when talented, 
ambitious and creative individuals are able to fulfill their education 
dreams and contribute in a meaningful way to our society.
  Ms. JACKSON-LEE of Texas. Madam Speaker, I rise today in support of 
S. 3406, the ``ADA Restoration Act of 2007.'' I wholeheartedly support 
this bill and urge my colleagues to support it also. The changes 
embodied by this Act, that restore the with Disabilities Act of 1990 
(``ADA'') to its original purpose, are long overdue.
  S. 3406, the ``ADA Restoration Act of 2007,'' amends the definition 
of ``disability'' in the ADA in response to the Supreme Court's narrow 
interpretation of the definition, which has made it extremely difficult 
for individuals with serious health conditions--epilepsy, diabetes, 
cancer, muscular dystrophy, multiple sclerosis and severe intellectual 
impairments--to prove that they qualify for protection under the ADA. 
The Supreme Court has narrowed the definition in two ways: (1) by 
ruling that mitigating measures that help control an impairment like 
medicine, hearing aids, or any other treatment must be considered in 
determining whether an impairment is disabling enough to qualify as a 
disability; and (2) by ruling that the elements of the definition must 
be interpreted ``strictly to create a demanding standard for qualifying 
as disabled.'' The Court's treatment of the ADA is at odds with 
judicial treatment of other civil rights statutes, which usually are 
interpreted broadly to achieve their remedial purposes. It is also 
inconsistent with Congress's intent.
  The Committee will consider a substitute that represents the 
consensus view of disability rights groups and the business community. 
That substitute restores Congressional intent by, among other things:
  Disallowing consideration of mitigating measures other than 
corrective lenses (ordinary eyeglasses or contacts) when determining 
whether an impairment is sufficiently limiting to qualify as a 
disability;
  Maintaining the requirement that an individual qualifying as disabled 
under the first of the three-prong definition of ``disability'' show 
that an impairment ``substantially limits'' a major life activity but 
defining ``substantially limits'' as a less burdensome ``materially 
restricts'';
  Clarifying that anyone who is discriminated against because of an 
impairment, whether or not the impairment limits the performance of any 
major life activities, has been ``regarded as'' disabled and is 
entitled to the ADA's protection.


                       Background on Legislation

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


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

  Through a series of decisions interpreting the ADA's definition of 
``disability,'' however, the Supreme Court has narrowed the ADA in ways 
never intended by Congress. First, in three cases decided on the same 
day, the Supreme Court ruled that the determination of ``disability'' 
under the first prong of the definition--i.e., whether an individual 
has a substantially limiting impairment--should be made after 
considering whether mitigating measures had reduced the impact of the 
impairment. In all three cases, the undisputed reason for the adverse 
action was the employee's medical condition, yet all three employers 
argued--and the Supreme Court agreed--that the plaintiffs were not 
protected by the ADA because their impairments, when considered in a 
mitigated state, were not limiting enough to qualify as disabilities 
under the ADA.
  Three years later, the Supreme Court revisited the definition of 
``disability'' in Toyota Motor Manufacturing, Kentucky, Inc. v. 
Williams. In that case, the plaintiff alleged that her employer 
discriminated against her by failing to accommodate her disabilities, 
which included carpal tunnel syndrome, myotendonitis, and thoracic 
outlet compression. While her employer previously had adjusted her job 
duties, making it possible for her to perform well despite these 
conditions, Williams was not able to resume certain job duties when 
requested by Toyota and ultimately lost her job. She challenged the 
termination, also alleging that Toyota's refusal to continue 
accommodating her violated the ADA. Looking to the definition of 
``disability,'' the Court noted that an individual ``must initially 
prove that he or she has a physical or mental impairment,'' and then 
demonstrate that the impairment ``substantially limits'' a ``major life 
activity.'' Identifying the critical questions to be whether a 
limitation is ``substantial'' and whether a life activity is ``major,'' 
the court stated that ``these terms need to be interpreted strictly to 
create a demanding standard for qualifying as disabled.'' The Court 
then concluded that ``substantial'' requires a showing that an 
individual has an impairment ``that prevents or severely restricts the 
individual, and `major' life activities requires a showing that the 
individual is restricted from performing tasks that are `of central 
importance to most people's daily lives.' ''
  In the wake of these rulings, disabilities that had been covered 
under the Rehabilitation Act and that Congress intended to include 
under the ADA--serious health conditions like epilepsy, diabetes, 
cancer, cerebral palsy, multiple sclerosis--have been excluded. Either, 
the courts say, the person is not impaired enough to substantially 
limit a major life activity, or the impairment substantially limits 
something--like liver function--that the courts do not consider a major 
life activity. Courts even deny protection when the employer admits 
that it took adverse action based on the individual's impairment, 
allowing employers to take the position that an employee is too 
disabled to do a job but not disabled enough to be protected by the 
law.
  On October 4, 2007, the Subcommittee on the Constitution, Civil 
Rights, and Civil Liberties held a legislative hearing on S. 3406, the 
``ADA Restoration Act of 2007.'' Witnesses at the hearing included 
Majority Leader Steny H. Hoyer (D-MD); Cheryl Sensenbrenner, Chair, 
American Association of People with Disabilities; Stephen C. Orr, 
pharmacist and plaintiff in Orr v. Wal-Mart Stores, Inc.; Michael C. 
Collins, Executive Director, National Council on Disability; Lawrence 
Z. Lorber, U.S. Chamber of Commerce; and Chai R. Feldblum, Professor, 
Georgetown University Law Center.
  The hearing provided an opportunity for the Constitution Subcommittee 
to examine how the Supreme Court's decisions regarding the definition 
of ``disability'' have affected ADA protection for individuals with 
disabilities and to consider the need for legislative action. 
Representative Hoyer, one of the lead sponsors of the original act and, 
along with Representative Sensenbrenner, lead House co-sponsor of the 
ADA Restoration Act, explained the need to respond to court decisions 
``that have sharply restricted the class of people who can invoke 
protection under the law and [reinstate] the original congressional 
intent when the ADA passed.'' Explaining

[[Page 19442]]

Congress's choice to adopt the definition of ``disability'' from the 
Rehabilitation Act because it had been interpreted generously by the 
courts, Representative Hoyer testified that Congress had never 
anticipated or intended that the courts would interpret that definition 
so narrowly:

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

  Representative Hoyer, joined by all of the witnesses except Mr. 
Lorber, urged Congress to respond by passing H.R. 3195, the House 
companion, to amend the definition of ``disability.'' Mr. Lorber, 
appearing on behalf of the Chamber of Commerce, opposed H.R. 3195 as an 
overly broad response to court decisions that accurately reflected 
statutory language and congressional intent.
  Since the subcommittee's hearing, several changes have been made to 
the bill, which are reflected in the substitute that will likely be 
considered by the committee. The substitute, described section-by-
section below, represents the consensus of the disability rights and 
business groups and is supported by, among others, the Chamber of 
Commerce.
  Importantly, Section 4 of the bill amends the definition of 
``disability'' and provides standards for applying the amended 
definition. While retaining the requirement that a disability 
``substantially limits'' a ``major'' life activity under prongs 1 and 2 
of the definition of disability, section 4 redefines ``substantially 
limits'' as ``materially restricts'' to indicate a less stringent 
standard. Thus, while the limitation imposed by an impairment must be 
important, it need not rise to the level of preventing or severely 
restricting the performance of major life activities in order to 
qualify as a disability. Section 4 provides an illustrative list of 
life activities that should be considered ``major,'' and clarifies that 
an individual has been ``regarded as'' disabled and is entitled to 
protection under the ADA if discriminated against because of an 
impairment, whether or not the impairment limits the performance of any 
major life activities. Section 4 requires broad construction of the 
definition and prohibits consideration of mitigating measures (with the 
exception of ordinary glasses or contact lenses) in determining whether 
an impairment substantially limits a major life activity.
  I support this bill, and I urge my colleagues to support it also.
  Ms. BALDWIN. Madam Speaker, I rise in support of S. 3406, the 
Americans with Disabilities Act (ADA) Amendments Act.
  This vital legislation restores the civil rights protections that 
Congress intended for people with disabilities in passing the ADA in 
1990. In the years since passage of the ADA, courts--including the U.S. 
Supreme Court--have narrowed the protective reach of this law, 
undermining Congress' intent. It is flatly unacceptable that Americans 
who experienced disability-based discrimination have been denied 
protection of the ADA and barred from challenging discriminatory 
conduct. This bill is an important and necessary remedy, and I'm 
grateful to our champions in the House, Mr. Hoyer and Mr. 
Sensenbrenner, as well as Senator Harkin and others who shepherded the 
ADA Amendments Act through the Senate.
  Importantly, the ADA Amendments Act addresses the restrictive 
interpretation of what it means to have a ``disability'' and therefore 
be protected against disability discrimination. In Toyota Motor 
Manufacturing, Kentucky, Inc. v. Williams, the Supreme Court ruled that 
the definition of disability must be read ``strictly to create a 
demanding standard for qualifying as disabled'' and, to meet the 
definition, 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.''
  Due to that and other narrow court interpretations, people with HIV 
who have been fired, not hired, or suffered other adverse employment 
actions have been denied the protections of the ADA. Although the ADA 
clearly intended to protect people living with HIV from being 
discriminated against based on having HIV, many have had their lawsuits 
derailed by disputes over whether they meet a narrowly interpreted 
definition of the term ``disability.'' For people living with HIV, all 
too often whether or not they could proceed with their discrimination 
claim has turned on the court's view of evidence as to their child-
bearing ability and intentions: highly personal, intimate matters that 
are completely unrelated to the discrimination they experienced.
  The ADA Amendments Act remedies the courts' misinterpretation of the 
ADA by explicitly stating that the definition of ``disability'' must be 
interpreted broadly to achieve the ADA's remedial purposes, by 
clarifying the definition of ``disability'' through examples of ``major 
life activities,'' and by providing that the determination of whether 
an impairment substantially limits a major life activity must be made 
without regard to the ameliorative effects of mitigating measures. Of 
significance for people living with HIV, among the listed examples of 
``major life activities'' are ``functions of the immune system,'' as 
well as ``reproductive functions.'' Under these new provisions, many 
individuals who were incorrectly denied coverage under the ADA will now 
be protected from discrimination. Some examples follow:
  Rubin Cruz Carrillo was fired from his job as a flight attendant 1 
day after he told his employer that he had been diagnosed with HIV and 
asked to speak with his supervisors about this under ``strict 
confidentiality.'' Because he was fired immediately after disclosing 
his HIV status, Rubin believed that the airline terminated him because 
of his disability and filed suit under the ADA. To show that his HIV 
infection ``substantially limits'' a ``major life activity,'' Rubin 
explained that he decided not to have children because of the risk of 
infecting his female partner or their resulting child through 
unprotected sexual intercourse. The trial judge discounted his 
testimony, saying that Rubin was ``not an expert in the medical field 
of immunology or reproduction.'' The court concluded that Rubin had not 
established that he had a ``disability'' because he failed to introduce 
medical evidence that HIV substantially limits a man's ability to 
reproduce. Therefore, the court ruled Rubin was not entitled to the 
protections of the ADA.
  In contrast, another judge on the same Federal district court found 
that a female with HIV was entitled to ADA protection. Yesenia 
Rodriguez alleged that she was discharged from an assignment because 
she had HIV. The court found that she was ``disabled'' under the 
meaning of the ADA, based on her testimony that she decided not to have 
more children due to the possibility of transmitting HIV to her child 
if she did.
  Other courts have granted summary judgment for employers (dismissing 
discrimination claims) on the grounds that the employee with HIV did 
not establish that his HIV was a ``disability.'' For example, Fabio 
Gutwaks'' discrimination claim was dismissed after the court concluded 
that he had failed to establish that he was substantially limited in 
the major life activity of reproduction because he testified that he 
did not currently, or previously, desire to father children. Similarly, 
Albenjamin Blanks' claim was dismissed after he testified that he and 
his wife had decided not to have any more children long before the 
discriminatory conduct occurred and that his wife had undergone a 
procedure to prevent her from having any more children.
  The ADA was meant to prohibit discrimination against people with 
disabilities. Yet, many people with HIV have been denied coverage under 
the ADA and therefore left without any legal recourse against 
discrimination. Under the ADA Amendments Act, these men and women will 
all be assured legal protection for discrimination based on their HIV 
status, irrespective of their child-bearing intentions or lack of 
expert testimony about HIV's impact on child-bearing.
  By passing the ADA Amendments Act, we reaffirm the right for American 
workers--including any American living with HIV--to be judged based 
upon their skills, talents, loyalty, character, integrity and work 
ethic. I am pleased to support this bill to ensure that all Americans 
have a fair opportunity to work.
  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.

[[Page 19443]]

  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 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

[[Page 19444]]

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.
  The SPEAKER pro tempore. All time has expired.
  The question is on the motion offered by the gentleman from 
California (Mr. George Miller) that the House suspend the rules and 
pass the Senate bill, S. 3406.
  The question was taken; and (two-thirds being in the affirmative) the 
rules were suspended and the Senate bill was passed.
  A motion to reconsider was laid on the table.

                          ____________________