[House Report 110-730]
[From the U.S. Government Publishing Office]



110th Congress                                            Rept. 110-730
                        HOUSE OF REPRESENTATIVES
 2d Session                                                      Part 1

======================================================================



 
                       ADA AMENDMENTS ACT OF 2008

                                _______
                                

                 June 23, 2008.--Ordered to be printed

                                _______
                                

 Mr. George Miller of California, from the Committee on Education and 
                     Labor, submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 3195]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Education and Labor, to whom was referred 
the bill (H.R. 3195) to restore the intent and protections of 
the Americans with Disabilities Act of 1990, having considered 
the same, report favorably thereon with an amendment and 
recommend that the bill as amended do pass.

  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

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 handicap under the Rehabilitation 
        Act of 1973, that expectation has not been fulfilled;
          (4) the holdings of the Supreme Court in Sutton v. United 
        Airlines, Inc., 527 U.S. 471 (1999) and its companion cases, 
        and in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 
        534 U.S. 184 (2002) 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; and
          (5) 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.
  (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 Airlines, 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 Airlines, Inc., 527 U.S. 471 (1999) with regard to 
        coverage under the third prong of the definition of disability 
        and to reinstate the reasoning of the Supreme Court in School 
        Board of Nassau County v. Arline, 480 U.S. 273 (1987) which set 
        forth a broad view of the third prong of the definition of 
        handicap under the Rehabilitation Act of 1973;
          (4) to reject the standards enunciated by the Supreme Court 
        in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 
        U.S. 184 (2002), that the terms ``substantially'' and ``major'' 
        in the definition of disability under the ADA ``need to be 
        interpreted strictly to create a demanding standard for 
        qualifying as disabled,'' and that to be substantially limited 
        in performing a major life activity under the ADA ``an 
        individual must have an impairment that prevents or severely 
        restricts the individual from doing activities that are of 
        central importance to most people's daily lives''; and
          (5) to provide a new definition of ``substantially limits'' 
        to indicate that Congress intends to depart from the strict and 
        demanding standard applied by the Supreme Court in Toyota Motor 
        Manufacturing, Kentucky, Inc. v. Williams and by numerous lower 
        courts.

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;''; and
          (2) by striking paragraph (7).

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 (4)).
          ``(2) Substantially limits.--The term `substantially limits' 
        means materially restricts.
          ``(3) 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.
          ``(4) 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.
          ``(5) Rules of construction regarding the definition of 
        disability.--The definition of `disability' in paragraph (1) 
        shall be construed in accordance with the following:
                  ``(A) To achieve the remedial purposes of this Act, 
                the definition of `disability' in paragraph (1) shall 
                be construed broadly.
                  ``(B) An impairment that substantially limits one 
                major life activity need not limit other major life 
                activities in order to be considered a disability.
                  ``(C) An impairment that is episodic or in remission 
                is a disability if it would substantially limit a major 
                life activity when active.
                  ``(D)(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, 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(5)(D)(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 Amendment.--Section 101(8) of the Americans with 
Disabilities Act of 1990 (42 U.S.C. 12111(8)) is amended--
          (1) in the paragraph heading, by striking ``with a 
        disability''; and
          (2) by striking ``with a disability'' after ``individual'' 
        both places it appears.

SEC. 6. RULES OF CONSTRUCTION.

  Title V of the Americans with Disabilities Act of 1990 (42 U.S.C. 
12201) 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) Claims of No Disability.--Nothing in this Act shall provide the 
basis for a claim by a person without a disability that he or she was 
subject to discrimination because of his or her lack of disability.
  ``(g) 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).'';
          (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 contained in sections 3 and 
4.''; and
          (3) in the table of contents contained in section 1(b), by 
        redesignating the items relating to sections 506 through 514 as 
        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''; 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.''.

SEC. 8. EFFECTIVE DATE.

  This Act and the amendments made by this Act shall become effective 
on January 1, 2009.

                               I. Purpose

    The purpose of H.R. 3195, the ``ADA Amendments Act of 
2008,'' is to restore the intention and protections of the 
Americans with Disabilities Act of 1990, providing a clear and 
comprehensive national mandate for the elimination of 
discrimination on the basis of disability.

                  II. Committee and Legislative Action


                             109TH CONGRESS

    On September 29, 2006, Representatives James F. 
Sensenbrenner (R-WI), Steny H. Hoyer (D-MD), and John Conyers 
(D-MI) introduced H.R. 6258, the ``Americans with Disabilities 
Act Restoration Act of 2006.'' The bill was referred to the 
House Committees on Education and the Workforce, Judiciary, 
Transportation and Infrastructure, and Energy and Commerce. It 
was subsequently referred to the Subcommittee on Employer-
Employee Relations of the Education and the Workforce 
Committee, but no further action was taken.

                             110TH CONGRESS

    On July 26, 2007, Representatives Steny H. Hoyer (D-MD) and 
James F. Sensenbrenner (R-WI) introduced H.R. 3195, the ``ADA 
Restoration Act of 2006,'' with 144 original cosponsors. The 
bill has garnered a total of 245 cosponsors. The bill was 
referred to the House Committees on Education and Labor, 
Judiciary, Transportation and Infrastructure, and Energy and 
Commerce.
    On July 26, 2007, Senator Tom Harkin (D-IA) introduced S. 
1881, the ``ADA Restoration Act of 2006'' with one original 
cosponsor. The bill has garnered a total of three cosponsors. 
The bill was referred to the Senate Health, Education, Labor, 
and Pensions Committee.
    On October 4, 2007, a hearing was held by the House 
Judiciary Committee on H.R. 3195. The following persons and 
organizations presented testimony: Honorable Steny Hoyer (D-
MD), Majority Leader and Chief Sponsor of H.R. 3195; Cheryl 
Sensenbrenner, Chair of the Board, American Association of 
People with Disabilities; Stephen Orr, Pharmacist (Plaintiff in 
Orr v. Wal-Mart); Michael Collins, Executive Director, National 
Council on Disability; Lawrence Lorber, Attorney, on behalf of 
the U.S. Chamber of Commerce; Chai Feldblum, Director, Federal 
Legislation Clinic and Professor of Law, Georgetown Law Center.
    On November 15, 2007, a hearing was held by the Senate HELP 
Committee on S. 1881. The following persons and organizations 
presented testimony: John D. Kemp, Attorney; Dick Thornburgh, 
Attorney; Stephen Orr, Pharmacist (Plaintiff in Orr v. Wal-
Mart); Camille Olson, Attorney; Chai Feldblum, Director, 
Federal Legislation Clinic and Professor of Law, Georgetown Law 
Center.
    On January 29, 2008, a hearing was held by the House 
Committee on Education and Labor on H.R. 3195. The following 
persons and organizations presented testimony: Honorable Steny 
Hoyer (D-MD), Majority Leader and Chief Sponsor of H.R. 3195; 
Andrew Imparato, President and CEO, American Association of 
People with Disabilities; Carey McClure, electrician (Plaintiff 
in McClure v. General Motors); Robert L. Burgdorf, Professor of 
Law, University of the District of Columbia; David K. Fram, 
Esq., Director, ADA & EEO Services, National Employment Law 
Institute.
    On June 18, 2008, the House Committee on Education & Labor 
held a markup to consider H.R. 3195. An amendment was offered 
as a substitute to the original bill, and it was reported out 
of the Committee by a vote of 43 to 1.

                        III. Summary of the Bill

    The ``ADA Amendments Act of 2008'' amends the Americans 
with Disabilities Act (ADA), by amending the definition of 
disability, providing clarifications related to terminology 
used in the definition, and rejecting several opinions of the 
U.S. Supreme Court that have served to narrow the definition of 
disability.
    The bill essentially maintains the language of the original 
three prongs of the definition of disability: a physical or 
mental impairment that substantially limits one or more life 
activities; a record of such impairment; or being regarded as 
having such impairment, but does clarify the intent of several 
elements of the definition.
    Rejecting the reasoning of the U.S. Supreme Court in Sutton 
v. United Airlines, Inc.\1\ and its companion cases, the bill 
prohibits the consideration of mitigating measures such as 
medication, assistive technology, accommodations, and 
modifications when determining whether an impairment 
substantially limits a major life activity. Ordinary eyeglasses 
and contact lenses are excluded from this prohibition, and may 
be considered when determining whether a visual impairment 
materially restricts a major life activity.
---------------------------------------------------------------------------
    \1\144 L. Ed. 2d. 450 (1999)
---------------------------------------------------------------------------
    In a departure from the standards enunciated by the U.S. 
Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. 
Williams,\2\ the bill defines ``substantially limits'' as 
``materially restricts,'' which is intended to be a less 
stringent standard to meet than the Court's interpretation of 
the definition as ``prevents or severely restricts.''\3\ The 
bill also explicitly rejects the Court requirement that the 
terms ``substantially'' and ``major'' need ``to be interpreted 
strictly to create a demanding standard for qualifying as 
disabled.''\4\ Instead, the bill provides that the definition 
of disability shall be construed broadly.
---------------------------------------------------------------------------
    \2\151 L. Ed. 2d. 615 (2002)
    \3\Id at 631.
    \4\Id.
---------------------------------------------------------------------------
    Additional clarity is provided in an illustrative, non-
comprehensive list of major life activities, offering specific 
examples of some of the major life activities that may be 
materially restricted by a physical or mental impairment. Major 
life activities are also defined to include the operation of 
major bodily functions.
    The bill defines an individual as ``being regarded as 
having such impairment'' if such individual can establish that 
he or she has been subjected to an action prohibited under the 
Act because of an actual or perceived physical or mental 
impairment, regardless of whether the impairment limits or is 
perceived to limit a major life activity.
    Aligning the construction of the Americans with 
Disabilities Act with Title VII of the Civil Rights Act of 
1964, the bill amends the ADA to provide that no covered entity 
shall discriminate against a qualified individual ``on the 
basis of disability.''
    Entities covered under the ADA will not be required to 
provide reasonable accommodations or reasonable modifications 
to policies and procedures for individuals who meet the 
definition of disability only under the ``regarded as having 
such an impairment'' prong of the definition.
    The bill clarifies that the three agencies that currently 
issue regulations under the ADA have regulatory authority 
related to the definitions contained in Section 3. Conforming 
amendments to Section 7 of the Rehabilitation Act of 1973 are 
intended to ensure harmony between federal civil rights laws.

                   IV. Statement and Committee Views

    When the Americans with Disabilities Act (ADA) was enacted 
in 1990 with strong bipartisan support, Congress expected that 
the purpose of the Act, ``to provide a clear and comprehensive 
national mandate for the elimination of discrimination against 
individuals with disabilities''\5\ would be fulfilled. Eighteen 
years later, many individuals with physical and mental 
impairments whom Congress intended to protect are not covered 
under the law, due to a series of Supreme Court decisions 
interpreting the definition of disability.
---------------------------------------------------------------------------
    \5\42 U.S.C. Sec. 12101.
---------------------------------------------------------------------------
    In Sutton v. United Airlines, Inc.\6\ and its companion 
cases, Murphy v. United Parcel Service, Inc.\7\ and 
Albertson's, Inc. v. Kirkingburg,\8\ and again in Toyota Motor 
Manufacturing, Kentucky, Inc. v. Williams,\9\ the Supreme Court 
offered interpretations of the law inconsistent with both the 
Committee's intent and general Congressional intent.
---------------------------------------------------------------------------
    \6\527 U.S. 471 (1999)
    \7\527 U.S. 516 (1999)
    \8\527 U.S. 555 (1999)
    \9\534 U.S. 184 (2002)
---------------------------------------------------------------------------
    The ADA Amendments Act of 2008 is 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. The Committee hopes to re-
establish clear and comprehensive protections for people with 
disabilities while maintaining a law that is workable and 
effective for all entities subject to responsibilities under 
the ADA.
    The House Committee on Education and Labor has always been 
strongly committed, on a bipartisan basis, to protecting the 
civil rights of people with disabilities. In May 1990, the 
Committee favorably reported H.R. 2273, the Americans with 
Disabilities Act, after a unanimous Committee vote. In the 
110th Congress, H.R. 3195 has been cosponsored by a majority of 
members of the Committee.
    The Committee intends to lessen the standard of 
establishing whether an individual has a disability for 
purposes of coverage under the ADA, and to refocus the question 
on whether discrimination on the basis of disability occurred.

                           CODIFIED FINDINGS

    The Committee amends two findings in the ADA that have been 
interpreted by the Supreme Court to support a narrow reading of 
the term ``disability.''
    Specifically, the bill replaces the ADA's finding 
pertaining to ``43 million Americans'' with a finding focusing 
on the many people with physical or mental disabilities who 
have been precluded from fully participating in all aspects of 
society as a result of discrimination. This finding has been 
deleted because of the manner in which it was used by the Court 
in Sutton to reason that ``[h]ad Congress intended to include 
all persons with corrected physical limitations among those 
covered by the Act, it undoubtedly would have cited a much 
higher number of disabled persons in the findings.''\10\
---------------------------------------------------------------------------
    \10\144 L. Ed. 2d. at 465.
---------------------------------------------------------------------------
    The bill deletes the ADA's finding pertaining to a 
``discrete and insular minority,'' because of the manner in 
which it was used in Sutton to reason that Congress intended to 
``restrict the ADA's coverage to a confined, and historically 
disadvantaged, class'' and that ``in no sensible way can one 
rank the large numbers of diverse individuals with corrected 
disabilities as a `discrete and insular minority.'''\11\ 
However, the Committee does continue to believe that 
individuals with disabilities ``have been faced with 
restrictions and limitations, subjected to a history of 
purposeful unequal treatment, and relegated to a position of 
political powerlessness in our society, based on 
characteristics that are beyond the control of such individuals 
and resulting from stereotypic assumptions not truly indicative 
of the individual ability of such individuals to participate 
in, and contribute to, society.''\12\
---------------------------------------------------------------------------
    \11\Id. at 470.
    \12\42 U.S.C. Sec. 12101.
---------------------------------------------------------------------------

                          DEFINING DISABILITY

    To clarify Congressional intent, the bill amends the 
definition of disability, defines or clarifies three terms 
within the definition of disability (``substantially limits,'' 
``major life activities,'' ``regarded as having such 
impairment'') and, under the rules of construction for the 
definition, adds several standards that must be applied when 
considering the definition of disability.
    The Committee understands that many employers do not 
discriminate against individuals with disabilities, however, 
the civil rights protections of the ADA have been diminished by 
the narrowing of the definition of disability, especially in 
the workplace. Too often cases have turned solely on the 
question of whether the plaintiff is an individual with a 
disability; too rarely have courts considered the merits of the 
discrimination claim, such as whether adverse decisions were 
impermissibly made by the employer on the basis of disability, 
reasonable accommodations were denied inappropriately, or 
qualification standards were unlawfully discriminatory.
    In the ADA of 1990, the Committee adopted the definition of 
``handicap'' from the Rehabilitation Act of 1973, as there had 
been 17 years of case law with very little controversy related 
to the definition of disability. Congress sought to protect 
anyone who experiences discrimination because of a current, 
past, or perceived disability.
    Under the ADA, there are three prongs of the definition of 
disability, with respect to an individual--
          (1) a physical or mental impairment that 
        substantially limits one or more of the major life 
        activities of such individual;
          (2) a record of such an impairment; or
          (3) being regarded as having such an impairment.\13\
---------------------------------------------------------------------------
    \13\42 U.S.C. Sec. 12102
---------------------------------------------------------------------------
    In 1990, the Committee expected the Courts to apply the 
same analysis used in interpreting the term ``handicap'' under 
sections 501, 503, and 504 of the Rehabilitation Act of 1973. 
Nearly a decade later, in Sutton and its companion cases, and 
again in Williams, the Supreme Court interpreted the definition 
of disability in a manner inconsistent with Congressional 
intent.
    The findings in these decisions restricted the definition 
of disability in two ways. In Sutton and its companion cases, 
the Court ruled that the determination of disability should be 
made after considering whether mitigating measures had reduced 
the impact of the limitation of the impairment. Three years 
later in Williams, the Court concluded that the terms 
``substantially'' and ``major'' in the definition of disability 
under the ADA had to be ``interpreted strictly to create a 
demanding standard for qualifying as disabled.''\14\ The Court 
then concluded that ``substantial'' requires a showing that an 
individual's impairment ``prevents or severely restricts'' 
major life activities; 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.''\15\
---------------------------------------------------------------------------
    \14\Toyota Motor Mfg. v. Williams, 151 L. Ed 2d. 615, 631 (2002)
    \15\Id. at 631.
---------------------------------------------------------------------------
    The Committee intends that the establishment of coverage 
under the ADA should not be overly complex nor difficult, and 
expects that the bill will lessen the standard of establishing 
whether an individual has a disability for purposes of coverage 
under the ADA.

Physical or mental impairment

    The bill does not provide a definition for the terms 
``physical impairment'' or ``mental impairment.'' The Committee 
expects that the current regulatory definition of such terms, 
as promulgated by agencies such as the U.S. Equal Employment 
Opportunity Commission (EEOC), the Department of Justice (DOJ) 
and the Department of Education Office of Civil Rights (DOE 
OCR) will not change.\16\
---------------------------------------------------------------------------
    \16\28 C.F.R. Sec. 36.104; 29 C.F.R. Sec. 1630.2(h)(1)-(2); 34 
C.F.R. Sec. 104.3 (j)(2)(i)
---------------------------------------------------------------------------

Substantially limits

    In Williams the Supreme Court effectively defined 
``substantially limits'' as ``severely restricts,'' with the 
result that many individuals with substantially limiting 
physical and mental impairments have been determined not to be 
individuals with disabilities under the ADA. This has resulted 
in the exclusion of many individuals whom Congress intended to 
cover.
    As explained by the Committee in 1990, ``A person is 
considered an individual with a disability for the purposes of 
the first prong of the definition when an individual's 
important life activities are restricted as to the conditions, 
manner or duration under which they can be performed in 
comparison to most people.''\17\ The determination of whether 
an impairment substantially limits a major life activity is to 
be made on an individualized basis.
---------------------------------------------------------------------------
    \17\H.R. Rep. No. 101-485, pt. 2 (1990)
---------------------------------------------------------------------------
    By adding the term ``materially restricts'' to define 
``substantially limits,'' the Committee intends to reject the 
Supreme Court's demanding standard in Williams. 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 in 
order to qualify as a disability. In the range of severity of 
the limitation, ``materially restricted'' is meant to be less 
than a severe or significant limitation and more than a 
moderate limitation, as opposed to a minor limitation. The 
level of the restriction created by the impairment must be the 
determining factor--not the severity of the impairment itself. 
For example, an individual with mild mental retardation 
(intellectual disability) would be considered materially 
restricted in the major life activities of learning and 
thinking. Multiple impairments that combine to materially 
restrict a major life activity also constitute a disability. 
The Committee believes that this interpretation of the term 
``materially restricts'' would be consistent with cases decided 
under the Rehabilitation Act of 1973.
    For example, in Littleton v. Wal-Mart Stores, Inc.\18\ the 
Eleventh Circuit determined that a person with intellectual 
disabilities (formerly known as ``mental retardation'') was not 
substantially limited in a major life activity because, in 
part, he was able to read, drive a car, and communicate with 
words. Under the amended Act, 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. In addition, the 
Committee expects that the plaintiff in Littleton would be 
found to be substantially limited in the operation of a major 
bodily system because he is materially restricted in 
neurological function.
---------------------------------------------------------------------------
    \18\231 Fed. Appx. 874 (11th Cir. 2007)
---------------------------------------------------------------------------
    The Committee also seeks to clarify how the bill's concept 
of ``materially restricts'' should be applied for individuals 
with specific learning disabilities who are frequently 
substantially limited in the major life activities of learning, 
reading, writing, thinking, or speaking. In particular, some 
courts have found that students who have reached a high level 
of academic achievement are not to be considered individuals 
with disabilities under the ADA, as such individuals may have 
difficulty demonstrating substantial limitation in the major 
life activities of learning or reading relative to ``most 
people.'' When considering the condition, manner or duration in 
which an individual with a specific learning disability 
performs a major life activity, it is critical to reject the 
assumption that an individual who performs well academically or 
otherwise cannot be substantially limited in activities such as 
learning, reading, writing, thinking, or speaking. As such, the 
Committee rejects the findings in Price v. National Board of 
Medical Examiners,\19\ Gonzales v. National Board of Medical 
Examiners,\20\ and Wong v. Regents of University of 
California.\21\
---------------------------------------------------------------------------
    \19\966 F. Supp. 419,427 (S.D. W.Va. 1997)
    \20\225 F. 3d 620 (6th Cir. 2000)
    \21\379 F. 3d 1097 (9th Cir. 2004)
---------------------------------------------------------------------------
    The Committee believes that the comparison of individuals 
with specific learning disabilities to ``most people'' is not 
problematic unto itself, but requires a careful analysis of the 
method and manner in which an individual's impairment limits a 
major life activity. For the majority of the population, the 
basic mechanics of reading and writing do not pose 
extraordinary lifelong challenges; rather, recognizing and 
forming letters and words are effortless, unconscious, 
automatic processes. Because specific learning disabilities are 
neurologically-based impairments, the process of reading for an 
individual with a reading disability (e.g. dyslexia) is word-
by-word, and otherwise cumbersome, painful, deliberate and 
slow--throughout life.\22\ The Committee expects that 
individuals with specific learning disabilities that 
substantially limit a major life activity will be better 
protected under the amended Act.
---------------------------------------------------------------------------
    \22\``Overcoming Dyslexia,'' Fortune; Morris, Betsy (May 2002)
---------------------------------------------------------------------------
    Additionally, the Committee intends that the bill will not 
change the principle that entities, including institutions of 
higher education, 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.\23\ For example, a university would not be expected to 
eliminate academic requirements essential to the instruction 
being pursued by a student, although it 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.''\24\
---------------------------------------------------------------------------
    \23\42 USC 12182 (b)(2)(ii)
    \24\34 CFR 104.44(a)
---------------------------------------------------------------------------
    Nothing in the amended Act is intended to change the 
specific documentation required by educational or testing 
entities in order to establish eligibility under the ADA, 
provided such requirements are appropriate and reasonable.

Major life activities

    The bill provides an illustrative list of ``major life 
activities'' to include activities such as caring for oneself, 
performing manual tasks, seeing, hearing, eating, sleeping, 
walking, standing, lifting, bending, speaking, breathing, 
learning, reading, concentrating, thinking, communicating and 
working.
    As the Committee believes it is impossible to guarantee 
comprehensiveness in a finite list, this list of major life 
activities is illustrative and non-exhaustive. Thus, the 
Committee does not intend for the absence of a major life 
activity from the list to convey a negative implication as to 
whether such activity constitutes a major life activity under 
the Act. Other activities the Committee considers to be 
examples of major life activities include interacting with 
others, writing, engaging in sexual activities, drinking, 
chewing, swallowing, reaching, and applying fine motor 
coordination.
    ``Major life activities'' also include the operation of 
major bodily functions such as functions of the immune system, 
normal cell growth, digestive, bowel, bladder, neurological, 
brain, respiratory, circulatory, endocrine and reproductive 
functions. In addition, an impairment can substantially limit 
the operation of a major bodily function if it causes the 
operation to overproduce in some harmful fashion, rather than 
to under-produce. As with the list of other major life 
activities, the list of major bodily functions in this bill is 
illustrative and non-exhaustive. Thus, the Committee also does 
not intend for the absence of a major bodily function from the 
list to convey a negative implication as to whether such 
function constitutes a major bodily function under the Act.
    The Committee expects that the bill will affect cases such 
as U.S. v. Happy Time Day Care Ctr.\25\ in which the courts 
struggled to analyze whether the impact of HIV infection 
substantially limits various major life activities of a five-
year-old child, and recognizing, among other things, that 
``there is something inherently illogical about inquiring 
whether'' a five-year-old's ability to procreate is 
substantially limited by his HIV infection; Furnish v. SVI 
Sys., Inc,\26\ in which the court found that an individual with 
cirrhosis of the liver caused by Hepatitis B is not disabled 
because liver function--unlike eating, working, or 
reproducing--``is not integral to one's daily existence;'' and 
Pimental v. Dartmouth-Hitchcock Clinic,\27\ in which the court 
concluded that the plaintiff's stage three breast cancer did 
not substantially limit her ability to care for herself, sleep, 
or concentrate. The Committee expects that the plaintiffs in 
each of these cases could establish a material restriction on 
major bodily functions that would qualify them for protection 
under the ADA.
---------------------------------------------------------------------------
    \25\6 F. Supp. 2d 1073 (W.D. Wis. 1998)
    \26\270 F. 3d 445, 450 (7th Cir. 2001)
    \27\236 F. Supp. 2d 177 (D.N.H. 2002)
---------------------------------------------------------------------------
    The rule of construction related to major life activities 
clarifies that an impairment need only substantially limit one 
major life activity to be considered a disability under the 
ADA. This responds to and corrects those courts that have 
required individuals to show that an impairment substantially 
limits more than one life activity or that, with regard to the 
major life activity of ``performing manual tasks,'' have offset 
substantial limitation in the performance of some tasks with 
the ability to perform others. For example, in Holt v. Grand 
Lake Mental Health Center, Inc.,\28\ the court found that an 
individual whose cerebral palsy adversely affected her speech 
and ability to perform various tasks, including eating and 
chewing food and buttoning her clothing, was not substantially 
limited because of her ability to perform other manual tasks. 
The Committee seeks to clarify that an individual is not 
excluded from coverage because of an ability to perform many 
activities, provided that the individual has an impairment that 
substantially limits at least one major life activity.
---------------------------------------------------------------------------
    \28\443 F.3d 762 (10th Cir. 2006)
---------------------------------------------------------------------------

Regarded as having such an impairment

    When considering whether an individual has been ``regarded 
as having such an impairment,'' the Committee also rejects the 
Supreme Court's ruling in Sutton.\29\ The Supreme Court's 
reasoning in School Board of Nassau County v. Arline\30\ was 
cited extensively in the 1990 committee report to the ADA, as 
it set forth a broad view of the third prong of the definition 
of handicap under the Rehabilitation Act of 1973, and the 
Committee believes the Courts should rely on this standard.
---------------------------------------------------------------------------
    \29\144 L. Ed. 2d 450.
    \30\480 U.S. 273 (1987)
---------------------------------------------------------------------------
    While retaining the essential language contained in 
existing law, the Committee clarifies that an individual who is 
``regarded as having such an impairment'' is not subject to the 
functional test (i.e., required to establish that the perceived 
or actual impairment ``materially restricts'' a major life 
activity) set forth in the first prong of the definition. The 
bill makes clear that 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 the Act because of an actual or 
perceived impairment, regardless of whether or not the 
impairment limits a major life activity.
    This clarification is necessary because the third prong 
incorporated the ``substantial limitation'' requirement from 
the first prong by reference.\31\ However, while the plain 
language used by Congress when it passed the ADA in 1990 
incorporates this requirement, Congress did not expect or 
intend that this would be a difficult standard to meet. On the 
contrary, Congress intended and believed that the fact that an 
individual was discriminated against because of a perceived or 
actual impairment would be sufficient: ``if a person is 
disqualified on the basis of an actual or perceived physical or 
mental condition, and the employer can articulate no legitimate 
job-related reason for the rejection, a perceived concern about 
employment of persons with disabilities could be inferred and 
the plaintiff would qualify for coverage under the `regarded 
as' test.''\32\
---------------------------------------------------------------------------
    \31\Prong (C) protects only those individuals who are ``regarded as 
having such an impairment'' under the bill. See, H.R. 3195 Sec. 3(1)(C)
    \32\H.R. Rep. No. 101-485, pt. 3, at 30-31 (1990).
---------------------------------------------------------------------------
    This third, ``regarded as'' prong, was meant to express the 
Committee's understanding that unfounded concerns, mistaken 
beliefs, fear, myths, or prejudice about disabilities are often 
just as disabling as actual impairments, and its corresponding 
desire to prohibit discrimination founded on such perceptions. 
Early decisions under the ADA reflected this understanding, as 
did guidance from federal agencies like the Department of 
Justice.\33\ For example, in U.S. v. Happy Time Day Care 
Ctr.,\34\ the court rejected the argument that a day care 
center's refusal to enroll a child with HIV did not establish 
that they believed that his HIV infection was substantially 
limiting, and concluded that the child was protected under the 
``regarded as'' prong because ``defendants' misapprehensions 
and fears'' about HIV infection were substantially limiting.
---------------------------------------------------------------------------
    \33\See, 28 C.F.R. Pt. 36, App. B, at 612.
    \34\6 F.Supp. 2d 1073, 1083-84 (1998)
---------------------------------------------------------------------------
    In line with the Supreme Court's strict interpretation, 
however, the Court also increased the burden of proof required 
to establish that the impairment one is regarded as having is a 
substantially limiting one. For example, in Sutton\35\ the 
court found that disqualification from a single job is 
insufficient; individuals seeking coverage under the ``regarded 
as'' standard must show that they were perceived as unable to 
perform a broad range of jobs utilizing the same skills. These 
restrictive rulings conflict with the Court's earlier 
recognition in Arline that the negative reactions of others are 
just as disabling as the actual impact of an impairment, a 
conclusion endorsed by Congress when it adopted the ``regarded 
as'' prong.
---------------------------------------------------------------------------
    \35\144 L. Ed. 2d 450.
---------------------------------------------------------------------------
    The Committee therefore restores Congress's original intent 
by making clear that an individual meets the requirement of 
``being regarded as having such an impairment'' if the 
individual shows that an action (e.g., disqualification from a 
job, program, or service) was taken because of an actual or 
perceived impairment, whether or not that impairment actually 
limits or is believed to limit a major life activity. Because 
there is no functional limitation requirement under the 
``regarded as'' prong of the definition, the requirement for 
proving substantial limitation of the major life activity of 
working under the first two prongs is not applicable to the 
analysis under the third prong, and EEOC regulations regarding 
the major life activity of working under the first two prongs 
are not impacted by this change. The Committee does not intend 
to convey that EEOC regulations regarding class of jobs/range 
of jobs under the first two prongs need to be revisited as a 
result of the clarification of third.
    If an individual can show that an entity covered by the Act 
thought that he or she had an impairment (whether or not he or 
she actually does), and as long as an individual's impairment 
is not transitory and minor, an individual will qualify for 
protection under the Act by showing that an entity covered by 
the Act thought subjected them to an action prohibited under 
the ADA (e.g., disqualification from a job, program, or 
service) as a result.
    Additionally, the bill relieves entities covered under the 
ADA from the obligation and responsibility to provide 
reasonable accommodations and reasonable modifications to an 
individual who qualifies for coverage under the ADA solely by 
being ``regarded as'' disabled under the third prong of the 
definition of disability.\36\
---------------------------------------------------------------------------
    \36\See discussion of Reasonable Accommodations and Modifications, 
infra.
---------------------------------------------------------------------------

Transitory and minor impairments

    The bill further clarifies that coverage for individuals 
under the ``regarded as'' prong is not available where the 
impairment that an individual is regarded as having is a 
transitory and minor impairment. Providing such an exception 
for claims at the lowest end of the spectrum of severe 
limitations was deemed necessary under the ``regarded as'' 
prong of the definition because individuals seeking coverage 
under this prong need not meet the functional limitation 
requirement contained in the first two prongs of the 
definition. Therefore, absent this exception, the third prong 
of the definition would have covered individuals who are 
regarded as having common ailments like the cold or flu.
    Inclusion of this provision responds to concerns raised by 
members of the employer community regarding potential abuse of 
the Act and the misapplication of resources on individuals with 
minor ailments that last only a short period of time. A similar 
exception is not necessary for the first two prongs as the 
functional limitation requirement adequately prevents claims by 
individuals with common ailments that do not materially 
restrict a major life activity. However, as an exception to the 
general rule for broad coverage under the ``regarded as'' 
prong, this limitation on coverage should be construed 
narrowly.

Mitigating measures

    The bill prohibits consideration of the ameliorative 
effects of mitigating measures when determining whether an 
individual's impairment substantially limits major life 
activities. This restores Congress's original intent and 
overturns the Supreme Court's decision in Sutton that the 
effect of mitigating measures should be considered. The 
Committee provides an illustrative list of measures whose use 
might reduce the impact of the limitations caused by an 
impairment.
    Mitigating measures include low vision devices, which are 
devices that magnify, enhance, or otherwise augment a visual 
image, such as magnifiers, closed circuit television, larger-
print items, and instruments that provide voice instructions. 
Low vision devices do not include ordinary eyeglasses or 
contact lenses, which are lenses that are intended to fully 
correct visual acuity or eliminate refractive error. The 
Committee provides an exception to the prohibition against the 
consideration of the ameliorative effects of mitigating 
measures by requiring consideration of the ameliorative effects 
of ordinary eyeglasses or contact lenses in determining whether 
an impairment substantially limits a major life activity.
    The Committee acknowledges that guaranteeing 
comprehensiveness in a finite list of mitigating measures is 
impossible, therefore the bill includes a non-exhaustive list 
of such measures. The Committee does not intend to convey a 
negative implication in the absence of any particular 
mitigating measure from the list. For example, other measures 
like the use of a job coach, personal assistant, service 
animal, surgical intervention, or compensatory strategy that 
might mitigate, or even allow an individual to otherwise avoid 
performing particular major life activities, should not be 
considered in determining whether an impairment substantially 
limits a major life activity.
    The Committee believes 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. The Committee supports the finding in Bartlett v. 
NYS Board of Law Examiners,\37\ 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.
---------------------------------------------------------------------------
    \37\See generally, 226 F.3d 69 (2nd Cir. 2000)
---------------------------------------------------------------------------
    The Committee expects that upon elimination of the 
consideration of ameliorative effects of a mitigating measure, 
individuals with serious health conditions who were improperly 
excluded from the ADA's protected class will be found to be 
substantially limited and entitled to protection from 
disability-based discrimination.
    Thus, examples that likely would be decided differently 
with regard to the threshold question of whether one qualifies 
as disabled once the effects of mitigating measures are not 
taken into account include several cases as described below. In 
McClure v. General Motors Corp.\38\ the court decided an 
individual with muscular dystrophy who successfully learned to 
live and work with his disability was not qualified to 
protection under the ADA. In Orr v. Wal-Mart Stores, Inc.\39\ 
the court noted that the Supreme Court's Sutton decision 
required consideration of the impact of the plaintiff's careful 
regimen of medicine, exercise, and diet and declining to 
consider the impact of uncontrolled diabetes on the plaintiff's 
ability to see, speak, read, and walk. In Todd v. Academy 
Corp.\40\ the court found that, ``without medication, Plaintiff 
would suffer daily seizures, including grand mal seizures which 
involve loss of consciousness, general thrashing, and 
tonoclonic activity,'' but concluded that the plaintiff was not 
disabled because medication reduced the frequency and intensity 
of these seizures. In Schriner v. Sysco Food Service\41\ the 
court found that the plaintiff with diagnosed post-traumatic 
stress disorder was not substantially limited in a major life 
activity when taking medication to manage his condition. In 
McMullin v. Ashcroft,\42\ the court decided that ``[v]iewing 
Plaintiff's impairment in light of the corrective measures of 
his medication, the Court finds that Plaintiff has failed to 
show that his depression'' substantially limits a major life 
activity.
---------------------------------------------------------------------------
    \38\75 Fed. Appx. 983 (5th Cir. 2003)
    \39\297 F.3d 720 (8th Cir. 2002)
    \40\57 F.Supp. 448, 452 (S.D. Tex. 1999)
    \41\2005 U.S. Dist. LEXIS 44743
    \42\337 F.Supp. 2d 1281, 1289 (D. Wyo. 2004)
---------------------------------------------------------------------------

               DISCRIMINATION ON THE BASIS OF DISABILITY

    The bill amends Section 102 of the ADA to mirror the 
structure of nondiscrimination protection in Title VII of the 
Civil Rights Act of 1964, changing the language of Section 
102(a) from prohibiting discrimination against a qualified 
individual ``with a disability because of the disability of 
such individual'' to prohibiting discrimination against a 
qualified individual ``on the basis of disability.'' This more 
direct language, structured like Title VII, ensures that the 
emphasis in questions of disability discrimination is properly 
on the critical inquiry of whether a qualified person has been 
discriminated against on the basis of disability, and not 
unduly focused on the preliminary question of whether a 
particular person is even a ``person with a disability'' with 
any protections under the Act at all.
    During congressional hearings on H.R. 3195, questions were 
raised about whether the original bill would change the 
framework of shifting burdens for plaintiffs and defendants 
under Texas Dep't of Community Affairs v. Burdine\43\ in those 
ADA cases governed by Burdine. As introduced, H.R. 3195 would 
have amended ADA Section 102 to prohibit discrimination 
``against an individual on the basis of disability,'' without 
mentioning whether such individual needed to be ``qualified.'' 
As introduced, H.R. 3195's elimination of the word 
``qualified'' from this section of the Act raised the Burdine 
questions.
---------------------------------------------------------------------------
    \43\450 U.S. 248, 252-56 (1981)
---------------------------------------------------------------------------
    Developed in the context of Title VII, the Burdine 
framework applies to ADA employment cases that involve indirect 
evidence of discrimination.\44\ Under Burdine, a plaintiff 
carries the initial burden of establishing a prima facie case 
that: (1) (s)he met the qualifications of the job; (2) (s)he 
suffered an adverse job action; and (3) the adverse action 
occurred under circumstances giving rise to an inference of 
discrimination based on his membership in the protected 
class.\45\
---------------------------------------------------------------------------
    \44\The Burdine framework ordinarily does not apply to cases 
involving direct evidence of discrimination.
    \45\450 U.S. 248, 253 (1981).
---------------------------------------------------------------------------
    If the plaintiff makes his or her prima facie case, the 
burden of production shifts to the defendant to articulate a 
``legitimate, nondiscriminatory reason for the employee's 
rejection.''\46\ The defendant does not need to ``persuade the 
court that it was actually motivated by the proffered 
reasons.''\47\ Rather, the employer ``bears only the burden of 
explaining clearly the nondiscriminatory reasons for its 
actions.''\48\
---------------------------------------------------------------------------
    \46\Id. at 252-53 (quoting McDonnell Douglas Corp. v. Green, 411 
U.S. 792, 802 (1973))
    \47\Id. at 254.
    \48\Id. at 260.
---------------------------------------------------------------------------
    If the defendant meets this burden of production, the 
plaintiff then carries a burden of persuasion to ``prove by a 
preponderance of the evidence that the legitimate reasons 
offered by the defendant were not its true reasons, but were a 
pretext for discrimination.''\49\
---------------------------------------------------------------------------
    \49\Id. at 253.
---------------------------------------------------------------------------
    It is the intent of the Committee that the Burdine 
framework remains intact and is not affected by the amendments. 
To address the concerns raised, the substitute, unlike H.R. 
3195 as introduced, does not eliminate the word ``qualified'' 
from Section 102 of the Act, retaining the Act's current 
language regarding job qualifications.
    The Committee also does not intend to alter the burden-
shifting analyses in ADA employment cases involving 
qualification standards, tests, or other selection criteria, or 
contentions regarding reasonable accommodation. These analyses 
are intended to remain the same as articulated in existing case 
law.\50\
---------------------------------------------------------------------------
    \50\See, e.g., Prewitt v. United States Postal Service, 662 F.2d 
292, 309-10 (5th Cir. 1981), cited in the legislative history of the 
ADA for purposes of explaining the proper burden-shifting analysis; 
H.R. Rep. No. 101-485, pt. 3, at 42 (1990). See also, Fenney v. Dakota, 
Minnesota & Railroad Co., 327 F.3d 707, 711-12 (8th Cir. 2003).
---------------------------------------------------------------------------
    The bill also makes clear that an individual who suffers an 
adverse employment action as the result of an employer's use of 
qualification standards, employment tests, or other selection 
criteria that are based on uncorrected vision may challenge 
those vision requirements and that the covered entity must show 
that such requirements are job-related and consistent with 
business necessity. This provision is necessary to ensure that 
vision requirements are job-related and consistent with 
business necessity in light of the provision requiring 
consideration of the ameliorating effects of ordinary 
eyeglasses and contact lenses in determining whether an 
individual has a disability.

                         RULES OF CONSTRUCTION

Benefits under State worker's compensation laws

    The bill provides that nothing in the Act alters the 
standards for determining eligibility for benefits under State 
worker's compensation laws or other Federal or State disability 
benefit programs.

Claims of no disability

    The bill prohibits reverse discrimination claims by 
disallowing claims based on the lack of disability, (e.g., a 
claim by someone without a disability that someone with a 
disability was treated more favorably by, for example, being 
granted a reasonable accommodation or modification to services 
or programs).
    The Committee intends to clarify that a person without a 
disability does not have the right under the Act to bring an 
action against an entity on the grounds that he or she was 
discriminated against ``on the basis of disability'' (i.e., on 
the basis of not having a disability).

Reasonable accommodations and modifications

    The bill establishes that entities covered under the ADA do 
not need to provide reasonable accommodations under title I nor 
modify policies, practices, or procedures under title II or III 
when an individual qualifies for coverage under the ADA solely 
by being ``regarded as'' disabled under the third prong of the 
definition of disability. This makes clear that the duty to 
accommodate or modify arises only when an individual 
establishes coverage under the first or second prong of the 
definition. This change responds to courts who have interpreted 
the ADA to require accommodation or modification for 
individuals who qualify as being ``regarded as'' disabled and 
may have been limited in a major life activity, but who were 
not able to meet the Supreme Court's demanding standard of 
being substantially limited in a major life activity.\51\ The 
Committee believes courts will no longer need to resort to a 
strained interpretation in order to provide accommodations to 
those who need them under the less demanding standard of 
``materially restricts'' and the rules of construction related 
to the definition of disability.
---------------------------------------------------------------------------
    \51\See, e.g., Kelly v. Metallics West, Inc., 410 F.3d 670 (10th 
Cir. 2005) (holding that an individual who needed supplemental oxygen 
after being discharged from the hospital due to a pulmonary embolism 
did not have a substantially limiting impairment but was regarded as 
disabled and should have been accommodated by being allowed to use her 
supplemental oxygen while at work).
---------------------------------------------------------------------------

                          REGULATORY AUTHORITY

    In Sutton, the Supreme Court stated that ``[n]o agency * * 
* has been given authority to issue regulations implementing 
the generally applicable provisions of the ADA which fall 
outside Titles I-V.\52\ Most notably, no agency has been 
delegated authority to interpret the term `disability.''' The 
bill clarifies that 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 contained in section 3, including the definition of 
``disability.''
---------------------------------------------------------------------------
    \52\144 L. Ed. 2d at 460 (1990).
---------------------------------------------------------------------------
    The introduced language of H.R. 3195 provided that duly 
issued federal regulations and guidance for the implementation 
of the ADA, including provisions implementing and interpreting 
the definition of disability, shall be entitled to deference by 
administrative bodies or officers and courts hearing any action 
brought under the ADA. This provision was intended to clarify 
that courts should give appropriate deference to agency 
regulations and guidance interpreting the ADA.
    This provision has been deleted because the proposed 
addition could have been incorrectly interpreted as running 
contrary to longstanding Supreme Court precedent, which 
requires that certain threshold criteria be met before a court 
defers to an agency interpretation of a statute that is a 
reasonable interpretation of the statute, when Congressional 
intent is unclear. That was not the intent of this provision. 
The Committee expects that the courts, applying Supreme Court 
precedent, will give the regulations and guidance implementing 
the ADA the deference currently accorded to agency regulations 
and guidance under existing statutory interpretation doctrine.

                          CONFORMING AMENDMENT

    The bill ensures that the definition of disability in 
Section 7 of the Rehabilitation Act of 1973, which shares a 
duplicative definition, is consistent with the ADA.
    The Rehabilitation Act of 1973 preceded the ADA in 
providing civil rights protections to individuals with 
disabilities; in drafting the definition of disability in the 
ADA, the authors relied on the statute and implementing 
regulations of the Rehabilitation Act. The ADA, under Title II 
and Title III, and Section 504 of the Rehabilitation Act 
provide overlapping coverage for many entities, including 
public schools, institutions of higher education, childcare 
facilities, and other entities receiving federal funds.
    Maintaining uniform definitions in the two federal statutes 
is critical so that such entities will operate under one 
consistent standard, and the civil rights of individuals with 
disabilities will be protected in all settings.
    The Committee expects that the Secretary of Education will 
promulgate new regulations related to the definition of 
disability to be consistent with those issued by the Attorney 
General under this Act. Other current regulations issued by the 
Department of Education Office of Civil Rights under Section 
504 of the Rehabilitation Act are currently harmonious with 
Congressional intent under both the ADA and the Rehabilitation 
Act.

                     V. Section-by-Section Analysis

    Sec. 1. Short Title. This Act may be cited as the ``ADA 
Amendments Act of 2008.''
    Sec. 2. Findings and Purposes. Acknowledges Congressional 
intent of the Americans with Disabilities Act of 1990 (ADA) to 
``provide a clear and comprehensive national mandate for the 
elimination of discrimination against individuals with 
disabilities'' and to provide broad coverage, and that the U.S. 
Supreme Court subsequently erroneously narrowed the definition 
of disability in a series of cases. The purposes of the Act are 
to reinstate a broad scope of protection to be available under 
the ADA, to reject several Supreme Court decisions, and to re-
establish original Congressional intent related to the 
definition of disability.
    Sec. 3. Codified Findings. Amends one finding in the ADA to 
acknowledge that many people with physical or mental 
impairments have been subjected to discrimination, and strikes 
one finding related to describing the population of individuals 
with disabilities as ``a discrete and insular minority.''
    Sec. 4. Disability Defined and Rules of Construction. 
Amends the definition of ``disability'' and provides rules of 
construction for applying the definition. The term 
``disability'' is defined to mean, with respect to an 
individual, a physical or mental impairment that substantially 
limits one or more major life activities, a record of such 
impairment, or being regarded as having such an impairment. 
Defines ``substantially limits'' as ``materially restricts''; 
provides an illustrative list of ``major life activities'' 
including major bodily functions; and defines ``regarded as 
having such an impairment'' as protecting individuals who have 
been subject to an action prohibited under the ADA because of 
an actual or perceived impairment, whether or not the 
impairment is perceived to limit a major life activity. 
Requires the definition of disability to be construed broadly. 
Provides rules of construction regarding the definition of 
disability, requiring that impairments need only limit one 
major life activity; clarifying an impairment that is episodic 
or in remission is a disability if it would substantially limit 
a major life activity when active; and prohibiting the 
consideration of the ameliorative effects of mitigating 
measures such as medication, learned behavioral modifications, 
or auxiliary aids or services, in determining whether an 
impairment is substantially limiting, while excluding ordinary 
eyeglasses and contact lenses.
    Sec. 5. Discrimination on the Basis of Disability. 
Prohibits discrimination under Title I of the ADA ``on the 
basis of disability'' rather than ``against a qualified 
individual with a disability because of the disability of such 
individual.'' Clarifies that covered entities that use 
qualification standards based on uncorrected vision must show 
that such a requirement is job-related and consistent with 
business necessity.
    Sec. 6. Rules of Construction. Provides that nothing in 
this Act alters the standards for determining eligibility for 
benefits under State worker's compensation laws or other 
disability benefit programs. Prohibits reverse discrimination 
claims by disallowing claims based on the lack of disability. 
Establishes that entities covered under all three titles of the 
ADA are not required to provide reasonable accommodations or 
modifications to an individual who meets the definition of 
disability only as a person ``regarded as having such an 
impairment.'' Authorizes the EEOC, Attorney General, and the 
Secretary of Transportation to promulgate regulations 
implementing the definition of disability and rules of 
construction related to the definition.
    Sec. 7. Conforming Amendments. Amends Section 7 of the 
Rehabilitation Act of 1973 to cross-reference the definition of 
disability under the ADA.
    Sec. 8. Effective date. Amendments made by the Act take 
effect January 1, 2009.

                     VI. Explanation of Amendments

    The only amendment considered during the Committee markup 
was the amendment in the nature of a bill, which is described 
in detail in the body of this report. The amendment passed by 
voice vote.

           VII. Application of law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1, the Congressional 
Accountability Act, requires a description of the application 
of this bill to the legislative branch. H.R. 3195 amends the 
definition of ``disability'' in the Americans with Disabilities 
Act to clarify the intent that it shall be construed broadly, 
which includes coverage under Section 509 (42 USC 12209) for 
the United States Senate and House of Representatives. For 
matters ``other than employment'' the Architect of the Capitol 
sets remedies and procedures regarding rights. The 
Congressional Accountability Act reiterates application of 
Title I of the ADA to Congress and provides the procedural 
mechanisms/rules for enforcement.

                    VIII. Unfunded Mandate Statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandates Reform Act, P.L. 104-4) requires a statement of 
whether the provisions of the reported bill include unfunded 
mandates. This issue is addressed in the attached CBO letter.

                         IX. Earmark Statement

    H.R. 3195 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9(d), 9(e) or 9(f) of rule XXI.


    XI. Statement of Oversight Findings and Recommendations of the 
                               Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
2(b)(1) of rule X of the rules of the House of Representatives, 
the Committee's oversight findings and recommendations are 
reflected in the body of this report.

            XII. New Budget Authority and CBO Cost Estimate

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the House of Representatives and section 308(a) of the 
Congressional Budget Act of 1974 and with respect to 
requirements of 3(c)(3) of rule XIII of the House of 
Representatives and section 402 of the Congressional Budget Act 
of 1974, the Committee has received the following estimate for 
H.R. 3195 from the Director of the Congressional Budget Office:

                                                     June 23, 2008.
Hon. George Miller,
Chairman, Committee on Education and Labor,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 3195, the ADA 
Amendments Act of 2008.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz.
            Sincerely,
                                                   Peter R. Orszag.
    Enclosure.

H.R. 3195--ADA Amendments Act of 2008

    Summary: H.R. 3195 would make several amendments to the 
Americans with Disabilities Act (ADA) of 1990 (Public Law 101-
336). The bill would amend the definition of disability and 
clarify the prohibition on discrimination on the basis of 
disability. Assuming appropriation of the necessary amounts, 
CBO estimates that implementing H.R. 3195 would cost about $25 
million over the 2009-2013 period for the Equal Employment 
Opportunity Commission (EEOC) to handle additional 
discrimination cases. Enacting H.R. 3195 would not affect 
direct spending or revenues.
    Section 4 of the Unfunded Mandates Reform Act (UMRA) 
excludes from the application of that act any legislative 
provision that establishes or enforces statutory rights that 
prohibit discrimination on the basis of disability. CBO has 
determined that sections 3 through 6 of H.R. 3195 fall within 
that exclusion; therefore, we have not reviewed them for 
intergovernmental or private-sector mandates. The remaining 
provisions of H.R. 3195 contain no intergovernmental or 
private-sector mandates as defined in UMRA and would impose no 
costs on state, local, or tribal governments, or the private 
sector.
    Estimated cost to the Federal Government: The estimated 
budgetary impact of H.R. 3195 is shown in the following table. 
The costs of this legislation fall within budget function 50 
(administration of justice).

----------------------------------------------------------------------------------------------------------------
                                                                    By fiscal year in millions of dollars--
                                                              --------------------------------------------------
                                                                2009    2010    2011    2012    2013   2009-2013
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Estimated Authorization Level................................       3       5       5       6       6        25
Estimated Outlays............................................       3       5       5       6       6        25
----------------------------------------------------------------------------------------------------------------

    Basis of estimate: CBO estimates that implementing H.R. 
3195 would cost about $25 million over the 2009-2013 period, 
assuming appropriation of the necessary amounts. For this 
estimate, CBO assumes that the necessary amounts will be 
appropriated near the start of each fiscal year and that 
outlays will follow the historical spending pattern of those 
activities. The bill would not affect direct spending or 
revenues.
    The EEOC's current caseload for ADA actions is about 20,000 
annually. CBO expects that H.R. 3195 would increase this 
workload by no more than 10 percent in most years, or roughly 
2,000 cases annually. Based on EEOC staffing levels necessary 
to handle the agency's current caseload, we expect that 
implementing H.R. 3195 would require 50 to 60 additional 
employees. CBO estimates that the costs to hire those new 
employees would reach $5 million by fiscal year 2010, subject 
to appropriation of the necessary amounts. In 2008, the agency 
received an appropriation of $329 million.
    The additional cases resulting from H.R. 3195 also could 
increase the workload of the Department of Justice and the 
federal judiciary. However, CBO estimates that increased costs 
for those agencies would not be significant because of the 
relatively small number of cases likely to be referred to them.
    Estimated intergovernmental and private-sector impact: 
Section 4 of UMRA excludes from the application of that act any 
legislative provision that establishes or enforces statutory 
rights that prohibit discrimination on the basis of disability. 
CBO has determined that sections 3 through 6 of H.R. 3195 fall 
within that exclusion; therefore, we have not reviewed them for 
intergovernmental or private-sector mandates. The remaining 
provisions of H.R. 3195 contain no intergovernmental or 
private-sector mandates as defined in UMRA and would impose no 
costs on state, local, or tribal governments, or the private 
sector.
    Previous CBO estimate: On June 23, 2008, CBO transmitted a 
cost estimate for H.R. 3195 as ordered reported by the House 
Committee on the Judiciary on June 18, 2008. The two versions 
of the bill are identical as are the cost estimates.
    Estimate prepared by: Federal Costs: Mark Grabowicz; Impact 
on State, Local, and Tribal Governments: Lisa Ramirez-Branum; 
Impact on the Private Sector: Paige Piper/Bach.
    Estimate approved by: Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

      XIII. Statement of General Performance Goals and Objectives

    In accordance with clause 3(c) of House rule XIII, the goal 
of H.R. 3195 is to restore the intention and protections of the 
Americans with Disabilities Act of 1990.

                XIV. Constitutional Authority Statement

    Under clause 3(d)(1) of rule XIII of the Rules of the House 
of Representatives, the Committee must include a statement 
citing the specific powers granted to Congress in the 
Constitution to enact the law proposed by H.R. 3195. The 
Committee believes that the amendments made by this bill, which 
clarify protections from employment discrimination for 
Americans with disabilities are within Congress' authority 
under Article I, Section 8, Clauses 3 and 18 and Amendment XIV.

                         XV. Committee Estimate

    Clause 3(d)(2) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison of the 
costs that would be incurred in carrying out H.R. 3195. 
However, clause 3(d)(3)(B) of that rule provides that this 
requirement does not apply when the Committee has included in 
its report a timely submitted cost estimate of the bill 
prepared by the Director of the Congressional Budget Office 
under section 402 of the Congressional Budget Act.

       XVI. Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

                AMERICANS WITH DISABILITIES ACT OF 1990


SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

  (a) * * *
  (b) Table of Contents.--The table of contents is as follows:
Sec. 1. Short title; table of contents.
     * * * * * * *
[Sec. 3. Definitions.]
Sec. 3. Definition of disability.
Sec. 4. Additional definitions.
     * * * * * * *

                    TITLE V--MISCELLANEOUS PROVISIONS

     * * * * * * *
Sec. 506. Rule of construction regarding regulatory authority.
Sec. [506] 507. Technical assistance.
Sec. [507] 508. Federal wilderness areas.
Sec. [508] 509. Transvestites.
Sec. [509] 510. Coverage of Congress and the agencies of the legislative 
          branch.
Sec. [510] 511. Illegal use of drugs.
Sec. [511] 512. Definitions.
Sec. [512] 513. Amendments to the Rehabilitation Act.
Sec. [513] 514. Alternative means of dispute resolution.
Sec. [514] 515. Severability.

           *       *       *       *       *       *       *


SEC. 2. FINDINGS AND PURPOSES.

  (a) Findings.--The Congress finds that--
          [(1) some 43,000,000 Americans have one or more 
        physical or mental disabilities, and this number is 
        increasing as the population as a whole is growing 
        older;]
          (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;

           *       *       *       *       *       *       *

          [(7) individuals with disabilities are a discrete and 
        insular minority who have been faced with restrictions 
        and limitations, subjected to a history of purposeful 
        unequal treatment, and relegated to a position of 
        political powerlessness in our society, based on 
        characteristics that are beyond the control of such 
        individuals and resulting from stereotypic assumptions 
        not truly indicative of the individual ability of such 
        individuals to participate in, and contribute to, 
        society;]

           *       *       *       *       *       *       *


[SEC. 3. 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) Disability.--The term ``disability'' means, with 
        respect to an individual--
                  [(A) a physical or mental impairment that 
                substantially limits one or more of the major 
                life activities of such individual;
                  [(B) a record of such an impairment; or
                  [(C) being regarded as having such an 
                impairment.
          [(3) 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, the Trust Territory of the Pacific 
        Islands, and the Commonwealth of the Northern Mariana 
        Islands.]

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 (4)).
          (2) Substantially limits.--The term ``substantially 
        limits'' means materially restricts.
          (3) 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.
          (4) 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.
          (5) Rules of construction regarding the definition of 
        disability.--The definition of ``disability'' in 
        paragraph (1) shall be construed in accordance with the 
        following:
                  (A) To achieve the remedial purposes of this 
                Act, the definition of ``disability'' in 
                paragraph (1) shall be construed broadly.
                  (B) An impairment that substantially limits 
                one major life activity need not limit other 
                major life activities in order to be considered 
                a disability.
                  (C) An impairment that is episodic or in 
                remission is a disability if it would 
                substantially limit a major life activity when 
                active.
                  (D)(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.

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, the Trust Territory of the Pacific 
        Islands, and the Commonwealth of the Northern Mariana 
        Islands.

                          TITLE I--EMPLOYMENT

SEC. 101. DEFINITIONS.

  As used in this title:
          (1) * * *

           *       *       *       *       *       *       *

          (8) Qualified individual [with a disability].--The 
        term ``qualified individual [with a disability]'' means 
        an individual [with a disability] who, with or without 
        reasonable accommodation, can perform the essential 
        functions of the employment position that such 
        individual holds or desires. For the purposes of this 
        title, consideration shall be given to the employer's 
        judgment as to what functions of a job are essential, 
        and if an employer has prepared a written description 
        before advertising or interviewing applicants for the 
        job, this description shall be considered evidence of 
        the essential functions of the job.

           *       *       *       *       *       *       *


SEC. 102. DISCRIMINATION.

  (a) General Rule.--No covered entity shall discriminate 
against a qualified individual [with a disability because of 
the disability of such individual] on the basis of disability 
in regard to job application procedures, the hiring, 
advancement, or discharge of employees, employee compensation, 
job training, and other terms, conditions, and privileges of 
employment.
  (b) Construction.--As used in subsection (a), the term 
``[discriminate] discriminate against a qualified individual on 
the basis of disability'' includes--
          (1) * * *

           *       *       *       *       *       *       *


SEC. 103. DEFENSES.

  (a) * * *

           *       *       *       *       *       *       *

  (c) Qualification Standards and Tests Related to Uncorrected 
Vision.--Notwithstanding section 3(5)(D)(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)] (d) Religious Entities.--
          (1) * * *

           *       *       *       *       *       *       *

  [(d)] (e) List of Infectious and Communicable Diseases.--
          (1) * * *

           *       *       *       *       *       *       *


                   TITLE V--MISCELLANEOUS PROVISIONS

SEC. 501. CONSTRUCTION.

  (a) * * *

           *       *       *       *       *       *       *

  (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) Claims of no Disability.--Nothing in this Act shall 
provide the basis for a claim by a person without a disability 
that he or she was subject to discrimination because of his or 
her lack of disability.
  (g) 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).

           *       *       *       *       *       *       *


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 
contained in sections 3 and 4.

SEC. [506] 507. TECHNICAL ASSISTANCE.

  (a) * * *

           *       *       *       *       *       *       *


SEC. [507] 508. FEDERAL WILDERNESS AREAS.

  (a) * * *

           *       *       *       *       *       *       *


SEC. [508] 509. TRANSVESTITES.

  For the purposes of this Act, the term ``disabled'' or 
``disability'' shall not apply to an individual solely because 
that individual is a transvestite.

SEC. [509] 510. INSTRUMENTALITIES OF THE CONGRESS

  The General Accounting Office, the Government Printing 
Office, and the Library of Congress shall be covered as 
follows:
          (1) * * *

           *       *       *       *       *       *       *


SEC. [510] 511. ILLEGAL USE OF DRUGS.

  (a) * * *

           *       *       *       *       *       *       *


SEC. [511] 512. DEFINITIONS.

  (a) * * *

           *       *       *       *       *       *       *


SEC. [512] 513. AMENDMENTS TO THE REHABILITATION ACT.

  (a) * * *

           *       *       *       *       *       *       *


SEC. [513] 514. ALTERNATIVE MEANS OF DISPUTE RESOLUTION.

  Where appropriate and to the extent authorized by law, the 
use of alternative means of dispute resolution, including 
settlement negotiations, conciliation, facilitation, mediation, 
factfinding, minitrials, and arbitration, is encouraged to 
resolve disputes arising under this Act.

SEC. [514] 515. SEVERABILITY.

  Should any provision in this Act be found to be 
unconstitutional by a court of law, such provision shall be 
severed from the remainder of the Act, and such action shall 
not affect the enforceability of the remaining provisions of 
the Act.
                              ----------                              


REHABILITATION ACT OF 1973

           *       *       *       *       *       *       *


SEC. 7. DEFINITIONS.

  For the purposes of this Act:
          (1) * * *

           *       *       *       *       *       *       *

          (9) Disability.--The term ``disability'' means--
                  (A) * * *
                  (B) for purposes of sections 2, 14, and 15, 
                and titles II, IV, V, and VII, [a physical or 
                mental impairment that substantially limits one 
                or more major life activities] the meaning 
                given it in section 3 of the Americans with 
                Disabilities Act of 1990.

           *       *       *       *       *       *       *

          (20) Individual with a disability.--
                  (A) * * *
                  (B) Certain programs; limitations on major 
                life activities.--Subject to subparagraphs (C), 
                (D), (E), and (F), the term ``individual with a 
                disability'' means, for purposes of sections 2, 
                14, and 15, and titles II, IV, V, and VII of 
                this Act, [any person who--
                          [(i) has a physical or mental 
                        impairment which substantially limits 
                        one or more of such person's major life 
                        activities;
                          [(ii) has a record of such an 
                        impairment; or
                          [(iii) is regarded as having such an 
                        impairment.] any person who has a 
                        disability as defined in section 3 of 
                        the Americans with Disabilities Act of 
                        1990.

           *       *       *       *       *       *       *


                     XVII. Committee Correspondence

    None.

                             MINORITY VIEWS

    The Americans with Disabilities Act (ADA) was enacted in 
1990 with broad bipartisan support. Among that historic 
legislation's most important goals (and that most salient to 
this Committee) was to protect individuals with disabilities 
from discrimination in the workplace.
    Now, as then, Committee Republicans endorse the purposes of 
the ADA, among them ``to provide a clear and comprehensive 
national mandate for the elimination of discrimination against 
individuals with inabilities,'' and ``to provide clear, strong, 
consistent, enforceable standards addressing discrimination 
against individuals with disabilities.''
    We support H.R. 3195, as amended in Committee and reported 
to the House. Our support for this legislation rests on our 
belief that it represents Congress's best effort to ensure that 
relief is extended to those most in need, while still 
maintaining meaningful limitations as to the law's scope and 
effect. To do less would upset the careful balance of interests 
embodied in the ADA since its enactment in 1990, and worse, 
threaten to do harm to the very individuals the law was meant 
to protect.
    For the purposes of interpretation and the determination of 
the intent of Congress with respect to the provisions of this 
legislation, we hereby adopt the reasoning set forth in the 
report of the Committee on Education and Labor, supra.
                                   Howard P. McKeon.
                                   Tom Petri.
                                   Pete Hoekstra.
                                   Mike Castle.
                                   Mark Souder.
                                   Vernon J. Ehlers.
                                   Judy Biggert.
                                   Todd R. Platts.
                                   Ric Keller.
                                   Joe Wilson.
                                   John Kline.
                                   Cathy McMorris Rodgers.
                                   Luis Fortuno.
                                   C.W. Boustany, Jr.
                                   Randy Kuhl.
                                   David Davis.
                                   Tim Walberg.

                                  
