ADA Amendments Act of 2008

Mr. President, I ask unanimous consent that the Senate now proceed to Calendar No. 927, S. 3406, a bill to restore the intent and protections of the Americans with Disabilities Act of 1990; that the bill be read three times, passed, and the motion to reconsider be laid upon the table, without intervening action or debate; that upon passage, Senator Hatch and I be recognized to speak for a period not to exceed 40 minutes total.

Mr. President, I ask unanimous consent that the Statement of Managers to Accompany S. 3406, the Americans With Disabilities Act Amendments Act of 2008, be printed in the Record.

Madam President, I am extremely proud to be the chief sponsor of the ADA Amendments Act of 2008, along with the distinguished senior Senator from Utah, Senator Orrin Hatch. This bipartisan legislation will allow us to advance and fulfill the original promise of the Americans With Disabilities Act, which was signed into law 18 years ago.

I am especially grateful to Senator Hatch for his leadership and for his friendship through all these years in helping to craft and move this bill here in the Senate. Senator Hatch was one of the key players in helping get through the original ADA back in 1989 and 1990 when we passed it. And in this effort we have here today, he has become a true partner. I deeply appreciate his willingness to take on this critical role. I think it is safe to say that without the help and intense interest of Senator Hatch on this issue, and especially on the whole ADA process, the bill would not be here today. Again, I am so grateful to Senator Hatch for his friendship and his support through all of this long process.

And it has been a long process. We are not here today because we just met the other day to put this together. It has been a couple of years or more in the making, and at least over a year of very intense negotiations with the business community, the disability community, and others to get to where we are today.

This bill is similar to legislation that was introduced in the other body by the majority leader, Steny Hoyer, and Congressman Jim Sensenbrenner of Wisconsin. That bill passed by a 402-to-17 margin in June, and of course the bill we have here today is going to pass unanimously.

I am also grateful that from the outset these bills have been conceived and crafted in a spirit of genuine bipartisanship, with Members of both parties coming together to do the right thing for Americans with disabilities. Today, we have nearly 80 Senators cosponsoring this bill. Of course, passage of the original ADA was also a bipartisan effort.

As the chief sponsor of that bill in the Senate, I worked very closely with a great number of people on both sides of the aisle, both here and in the administration--Senator Bob Dole, of course, and others on both sides of the aisle. We received invaluable support from then- President George Herbert Walker Bush and key members of his administration, including White House counsel Boyden Gray, who worked so hard to get the original bill through; and Attorney General Richard Thornburgh, who helped us craft the bill and made sure we did it in the right way. Dick Thornburgh was so instrumental in that initial passage, and ever since then, for the last 18 years, I have kept in contact with Attorney General Thornburgh periodically, talking about the ADA, what it was doing, how it was being implemented, and of course because of the recent court decisions, discussing with him how we could get to this point today and have a bill that would overturn those court decisions. Former Transportation Secretary Sam Skinner was very involved in this also.

But I would be remiss if I didn't state forthrightly the one person through all these years who was the key mover of the Americans With Disabilities Act of 1990, without whose leadership we could not have gotten it done, and who enabled this Senator to be the chairman of the Disability Policy Subcommittee and to get this bill moved through both subcommittee and committee. He was there from the very beginning to the end and has never let up in all his years on his interest in and support of legislation that would fully incorporate people with disabilities in all aspects of American life. Of course I speak of Senator Ted Kennedy, the chairman of the HELP Committee, who can't be here with us today. He is at home in Massachusetts recuperating and getting better so he can be here with us next year when we take up

health care reform. But if Senator Kennedy is watching, I wish to say: Ted, this one is for you. We finally got here. We finally got the bill up.

I thank Senator Kennedy for all of his help in the last 2 to 3 years in pulling everything together, and I am going to have more to say about that at the end when I thank all those wonderful staff members who helped. But Senator Kennedy has been there from the beginning, in the 1980s, when we were doing this, and all through the 1990s, to now, and I am sorry he can't be here with us today. I know he is here with us in spirit, and that spirit has been strong to get us to this point today.

I also thank Senator Enzi. Prior to a couple of years ago, he was chairman of the HELP Committee and was also very interested in helping to move this legislation along. Since he has been ranking member, he has also been involved, and his staff involved, in making sure we could get this bill here today.

The fact is that Americans from all walks of life take enormous pride in what we have done in the last 18 years since the passage of ADA. No one wants to go backwards. The ADA was one of the landmark civil rights statutes of the 20th century, a long overdue emancipation proclamation for Americans with disabilities. Thanks to that law, we have removed most physical barriers to movement and access for Americans with disabilities. We required employers to provide reasonable accommodations so people with disabilities could have equal opportunity in the workplace. We have greatly advanced the four goals of the ADA: equality of opportunity, full participation, independent living, and economic self-sufficiency.

I think the triumph of the ADA revolution is all around us. I remember a couple of years ago attending a Washington convention of several hundred disability rights advocates, many with significant disabilities. They arrived in Washington on trains and airplanes and buses built to accommodate people with mobility impairments. They came to the hotel on Metro and on regular buses, all seamlessly accessible by wheelchair. They navigated the city streets equipped with curb cuts and ramps. The hotel where the convention took place was equipped in countless ways to accommodate all manner of people with all kinds of disabilities. There were sign language interpreters on the dais so the people with hearing disabilities could be full participants. And the list goes on and on. In other words, a kind of seamless approach to making sure that anyone could participate regardless of their disability.

For many Americans, these many changes are kind of invisible. We kind of take them for granted. We take curb cuts for granted and ramps, and widened doorways for granted. The fact is, every building--think about this--every building being built in America today is fully accessible, with a universal design. A universal design. Now, these changes may be invisible to most people, but for people with disabilities, they are transforming and liberating. The provisions in the ADA outlawed discrimination against qualified individuals with disabilities in the workplace, requiring employers to provide reasonable accommodations. Again, these are liberating and transforming for people with disabilities.

But despite all this progress over the last 18 years, we have a problem. We have a big problem. And the problem arises because of a series of Supreme Court decisions that have greatly narrowed the scope of who is protected by the ADA. As a consequence, people with conditions that common sense would tell us are disabilities are being told by the courts that they are not in fact disabled and, therefore, not eligible for the protections of the law. For example, in a ruling last year, the 11th Circuit Court concluded that a person with an intellectual disability was not ``disabled'' under the ADA.

When I try to explain to people what the Supreme Court has done, they are shocked. Impairments that the Court says are not to be considered disabilities under the law--at least in some cases--include amputation, intellectual disabilities, epilepsy, multiple sclerosis, diabetes, muscular dystrophy, cancer, and others.

In three decisions on the same day in June of 1999--what we now know as the Sutton trilogy--the Supreme Court held that corrective and mitigating measures must be considered in determining whether an individual has a disability under the ADA. This is in complete contradiction to congressional intent as we expressed in our committee reports.

When we pass laws around here, we don't put every single little thing in the law; we would have huge bills. What we do is we have committee reports and findings to instruct the courts as to what our intent is. We expect the courts to follow them.

In the Senate committee report, here is what we said:

Whether a person has a disability should be assessed

without regard to the availability of mitigating measures,

such as reasonable accommodations or auxiliary aids.

You cannot get much clearer than that. The House report said basically the same thing. It said:

For example, a person who is hard of hearing is

substantially limited in the major life activity of hearing,

even though the loss may be corrected through the use of a

hearing aid. Likewise, persons with impairments, such as

epilepsy or diabetes, which substantially limit a major life

activity are covered under . . . the definition of

disability, even if the effects of the impairment are

controlled by medication.

That was in our report 18 years ago. The Supreme Court ignored that. They ignored it.

In the Sutton case, Sutton v. United Airlines, the Supreme Court held that for persons taking corrective measures to mitigate a physical or mental impairment, the effect of those measures must be taken into account when judging whether a person is ``disabled''--and therefore covered under the law.

That could include anything from visual aids to prostheses.

In Murphy v. the United Parcel Service, the Court applied the same analysis to medication used to treat hypertension, and concluded an employee who was fired because he had high blood pressure and hypertension was not covered because he took medication to alleviate the symptoms. But, again, in our report, as we said before, that should not be taken into account.

In the case of Albertsons v. Kirkingburg--we call it the Kirkingburg case--the Supreme Court went further and declared mitigating measures to be considered in the determination of whether someone is disabled included not only artificial aids such as devices and medications but also subconscious measures that an individual may use to compensate for his or her impairment. What were they talking about? Kirkingburg was an individual who was blind in one eye. Through experience and coping with it, he had been able to compensate for the fact he was blind in one eye. The Court said subconsciously he was able to compensate for that, therefore he must not be disabled. People hear this and they say how could the Supreme Court have decided that?

Last, in another case, the Toyota case, the Court held there must be a ``demanding standing for qualifying as disabled.'' Again, restricted; a demanding standard. We have never said that in the ADA bill. We didn't say that at all.

What has happened is that countless individuals have been excluded from ADA, even though the general rule of all civil rights laws is they should be broadly construed to achieve their remedial purposes, and the ADA is a civil rights statute.

Again, what does all this mean? What this means is the Supreme Court decisions have led to a supreme absurdity, a Catch-22 situation that so many people with disabilities find themselves in today. For example, the more successful a person is at coping with a disability, the more likely it is the Court will find that they are no longer disabled and therefore no longer covered under the ADA. If they are not covered under ADA, then any request that they might make for a reasonable accommodation can be denied. If they do not get the reasonable accommodation, they cannot do their job; and they can get fired and they will not be covered by the ADA and they will not have any recourse.

Let's look at it this way. If you are disabled and you take medication or use an assistive device, then you will be able to do your job, right? If you take the medication, use the assistive device, now you can do your job, but you will not be covered by the ADA.

Therefore, if you ask for a reasonable accommodation, the employer will say: No, you can't do your job, you are fired and, guess what, you go to court and the court will say: You are not disabled, you use an assistive device, you take medication. On the other hand, if you do not take the medication or you do not use an assistive device, you will not be qualified to do the job.

So what is a person with a disability supposed to do? If I use medication or use an assistive device, it enables me to become economically self-sufficient, become independent, become fully integrated in society. If I take medication or use my assistive device I can do that, I can get a job. But then I am no longer covered by ADA, and I can be fired or terminated. I will not get a reasonable accommodation.

You can see what this has done to so many millions of people with disabilities. What am I to do? I want to get a job. But I want the coverage of ADA. But I have to give that up if I use medication or use an assistive device--an absolute absurdity. This is not what I intended. It is not what anyone intended when we passed the ADA 18 years ago.

It boggles the mind that any court would say that multiple sclerosis, muscular dystrophy or epilepsy is not a disability covered by the ADA, but that is where we are today. Think about the troops coming home from Iraq, losing limbs, getting prostheses. The Court might find they are not disabled. If they might need some reasonable accommodations to get a decent job, the Court would find they are not covered by the Americans with Disabilities Act.

As a result, we have to have this bill, and that is what this bill is all about. This bill is about restoring the Americans with Disabilities Act back to where we intended it to be 18 years ago and to give clear directions to the courts about how they should decide these cases. This bill will overturn the so-called Sutton trilogy and Toyota v. Williams and will give clear direction to the courts on exactly what we mean. It will restore the proper balance, it will clarify and broaden the definition of disability, it will increase eligibility for the protections of the ADA.

People who are denied coverage under ADA will now be covered, and we will get rid of that Catch-22 situation that confronts so many people right now with disabilities.

I tell you, this is extremely important in the employment context. According to most recent data, more than 60 percent of individuals with disabilities are not employed. That is shameful, in our society, that we have an unemployment rate among people with disabilities of 60 percent. These are people who want to work, who are capable of work. They want to go out and become fully functioning members of society and contribute to society. All they need is the opportunity.

I can tell you employers find people with disabilities are sometimes the most exemplary of workers. All they need is the opportunity, a reasonable accommodation, and they can do their job. This bill before us today renews our promise to all Americans with disabilities. We basically say we keep the basic language of the original bill, but we also make sure the bill overturns the basis for the reasoning in the Supreme Court decisions--as I said, the Sutton trilogy and Toyota case that has been so problematic.

We clearly state mitigating measures--such as the medication or assistive devices I talked about earlier--are not to be considered in determining whether someone is entitled to the protections of the ADA. No longer is it report language. We put this in bill language so the Supreme Court can't skirt around it again.

The bill will make it easier for people with disabilities to be covered. It expands the definition of disability to include many more life activities, including a new category of major body functions. The latter point is important for people with immune disorders or cancer or kidney disease or liver disease because they no longer need to show what specific activity they are limited in, in order to meet the statutory definition of disability. The bill rejects the current EEOC regulation which says that ``substantially limits'' means ``significantly restricted'' as too high a standard. We indicate Congress's expectation that the regulation be rewritten in a less stringent way and we provide the authority in this bill to do so.

The bill also revives the ``regarded as'' prong of the definition of disability. It makes it easier for those who suffer from discrimination because of a perceived disability to be able to seek relief if they have been fired or subjected to another adverse action. We also say the definition of disability is to be interpreted broadly, to the maximum extent permitted by the ADA.

Again, this bill will give clear direction, of course, as to exactly what we intend: A broad definition, more people covered, and getting rid of that problem of having that Catch-22 situation.

Eighteen years ago, the Americans with Disabilities Act passed with overwhelming bipartisan support, and I am proud to say we have that same level of support today in passing this unanimously. I am grateful for the bipartisan spirit with which we have considered this bill. We have an opportunity to come together to make an important difference for millions of Americans with disabilities.

I might say the bill enjoys strong support in the country. I have a letter I will submit for the Record from over 250 business, faith, disability, labor, and military organizations that support this bill and urge its passage.

Madam President, I ask unanimous consent that letter be printed in the Record at the conclusion of the statements of both mine and Senator Hatch.

The bill is supported by all the national disability organizations as well the U.S. Chamber of Commerce, the National Association of Manufacturers, the Society for Human Resource Management, and the Human Resources Policy Association.

The genesis of the legislation is a result of direct conversations between the disability and business communities that should serve as a model for other legislative efforts.

I wish to say, there were a lot of negotiations that went on between disability groups, the Chamber of Commerce, the Human Resource Policy Association, National Association of Manufacturers, other business groups. They were long. They were involved. They were tough negotiations. There was a lot of give and take. I think that is the way we have to do things.

To those who say we cannot get anything done around here, I point to this bill. We can get things done around here as long as people of good will are willing to work together. It may take a little time. Sometimes good things take a little time. It takes a lot of negotiations, reaching across the aisle, reaching across to one another, and we can reach these kind of agreements. We can move this country forward, and we can make American society more fair and just and accommodating for all.

I have two last things. I wish to take a moment to recognize our veterans with disabilities. This bill we have before us renews our commitment to ensure that all Americans with disabilities, including a new generation of disabled veterans who are just beginning to grapple with the challenges of living to their full potential, despite any limitations imposed by the disabilities, are able to participate to the fullest possible extent in all facets of society, including the workplace. They deserve equality, access, and opportunity.

I would like to submit for the Record a letter from 23 veterans groups supporting this legislation. I ask unanimous consent it be printed in the Record.

I last would like to thank those who helped us get to this day, including those who are no longer with us. My friend, Justin Dart, who was so instrumental in helping us get the ADA passed. We are fortunate that his wife Yoshiko continues to carry on his legacy, day after day, week after week, year after year. Ed Roberts, the father of the Independent Living movement, whose work and vision live on.

And all the disability advocates and people with disabilities who have been so dedicated to the goals of the ADA, without whose hard work and dedicated efforts today would not have been possible--people such as Jim Ward and his family, who dedicated almost 2 years of their lives traveling on a bus around the country to every State, showing people about the importance of restoring the protections of ADA. Bob Kafka of ADAPT, who was so instrumental in passage of the ADA, and who has dedicated his life to fulfilling the goals of the ADA.

I wish to say a special thank-you to Jennifer Mathis of the Bazelon Center for her practical and practiced advice; Sandy Finucane of the Epilepsy Foundation; of course to Andy Imparato of the American Association of People With Disabilities for always being there in that leadership position--for his level-headed leadership, for bringing different groups together, and sometimes that is like herding cats to get all of us together. Andy did a great job in making sure we were always there and making sure we had our conferences and negotiations and keeping us all headed in the same direction. So to Andy Imparato I give my highest thanks and my deepest thanks for all of his helpfulness.

Thanks to Nanzy Zirkin of the Leadership Conference on Civil Rights; and to Professor Chai Feldblum of the Georgetown Law Center for creative and innovative thinking, for always being willing to testify before our committee.

Thanks to Randy Johnson and Mike Eastman of the U.S. Chamber of Commerce; to Mike Peterson of the H.R. Policy Association; to Jeri Gillespie of the National Association of Manufacturers; and to Mike Aitken of the Society of Human Resource Management.

Thanks to our key staff members: Tom Jipping and Chris Campbell of Senator Hatch's staff--great to work with--and Lee Perselay, Beth Stein, and Pam Smith of my own staff. Again, they have worked tirelessly on this day after day.

I wish to thank the House committee staff, Sharon Lewis and Heather Sawyer, and Leader Hoyer's staff, Keith Abouchar and Michelle Stockwell, as well as a wish for them to make quick work of passing this bill when it gets over to the House.

Of course, I also thank the staff of the HELP Committee, the chairman's staff, Michael Myers, Connie Garner, and Charlotte Burrows, and Brian Hayes with Ranking Member Enzi.

I thank my colleagues on both sides of the aisle who have supported this bill in overwhelming numbers and made it possible to pass the bill and hopefully get it signed into law and advance the original intent of the original Americans with Disabilities Act.

You know, there may not be a lot of people here on the floor of the Senate today, but I can tell you, though, throughout the country there are millions of Americans with disabilities who know what we are doing here. They have been told. They know what we have done over the last couple or 3 years to overturn those Supreme Court decisions. They are waiting anxiously for this bill to be passed, for the House to pass it, and for President Bush to sign it into law so that once again they can go out with full knowledge that they are covered by this civil rights bill, that they can go out and seek employment, that they can travel, that they can seek the accommodations that will make them fully functioning members of our society and knowing that they are covered by the law. So there are millions of Americans with disabilities and their families all over this country today who I know are expressing thanks to all the people who have been involved in getting this done. Again, so many are not here with us today. They know what we are doing, and they are anxiously waiting for this to pass and to get it to the President, and hopefully we will get that done--hopefully by next week.

The last thing was--I thanked a lot of people, but I would be remiss if I did not thank the one person who more than any other set my feet on this course many years ago, who taught me a lot about being disabled, and who taught me a lot about discrimination against people with disabilities. And, of course, I speak of my brother, Frank.

He was here when we passed the original ADA, but he has since passed on. But it was my brother who first said to me many years ago when he was sent to the Iowa School for the Deaf--they called it the Iowa School for the Deaf and Dumb--he said, ``I may be deaf, but I am not dumb.'' It was also my brother who one time said to me that the only thing deaf people cannot do is hear. He wanted to do a lot of things in his life, but because of prejudices, because of discrimination, he was held back and discriminated against. I saw it time after time after time. He was able to persevere and carve out a life of independence and dignity for himself, but I often thought, why did he have to do that? I mean, why did it require an extraordinary effort on his part just to be a contributing member of our society, just to enjoy a lot of things we take for granted?

So I thought so much about that. I thought, you know, if I ever got in a position to do anything about it, I was going to do something. Well, as fortune would have it, I was elected to the House and then later elected to the

Senate and found myself as chairman of the Disability Policy Subcommittee under the tutelage of Senator Kennedy. We were able to get the first ADA act passed.

I have to tell you a story here, just talking about discrimination. I was sworn into the Senate in January of 1985. I had my brother, Frank; he along with my whole family was here sitting up there in the gallery right back here. I had provided for an interpreter to interpret for my brother as he was watching the proceedings here on the floor of the Senate. Well, then a policeman came out. Actually, one of my brothers said: The policemen are up there and asked the interpreter to leave because she could not be there. I went up to the gallery. I am about to get sworn into the Senate.

I went up to find out what was going on.

The officer said: We cannot let people up in the gallery stand up and do this interpreting.

I said: Why not?

He said: It is against the rules.

What rules?

Well, it is against the rules.

Well, I was furious. So I came down on the floor, and in 1985, you might remember the Senate majority leader was Senator Bob Dole. So I went right to Dole and I said: Senator Dole, here is my problem. I got my brother up there, and they won't let an interpreter interpret.

He said: Really? Well, I will take care of that.

And he took care of it. He took care of it. So we got an interpreter. Of course, now we have closed captioning and all kinds of things now for Senate activities. But, again, it is just that attitude people have. This was in 1985. That would not happen today. Of course, we have access for people who have mobility disabilities to come in, and we have made the Capitol accessible for people with all kinds of disabilities.

But I relate that story as a way of again thanking my brother, Frank, for setting my feet on this path so many years ago. For me, it has been a labor of love, not without its frustrations, not without saying--one day at the Supreme Court, with Bob Dole by my side, listening to the Supreme Court hand down one of these decisions, I said: What could they possibly be thinking? We went out and talked to the press after, Senator Dole and I did. So it has had its frustrations.

We are not to the promised land yet with 60 percent unemployment among people with disabilities. We have a long way to go. But this, the Americans with Disabilities Act, is the civil rights statute that says to people: You cannot discriminate. Just as we passed the civil rights bills that said: You cannot discriminate on the basis of race or sex or national origin or religion, now you cannot discriminate on the basis of disability either, plus you have to take some other steps; we have to have reasonable accommodations. So this is the civil rights statute that emancipates and frees people with disabilities so they can be fully contributing members of our society.

I close my remarks by thanking the President for her indulgence, the indulgence of other Senators for permitting me to speak for so long. As I said, this, for me, for all of my adult life, is a cause to which I have committed myself, much of my staff, much of our time and effort. I am grateful to the leadership of the Senate, both on the Republican and Democratic side, and again to my great friend and partner Senator Hatch for making it possible for us to bring up this bill today and get it passed unanimously. Unanimously. That is even better than what we did with the ADA. We only had six votes against it in 1990. This is unanimous. I think it sends a clear signal that whether you are Republican or Democratic, it does not make any difference--it does not make any difference, we are going to stand behind people with disabilities. We are going to make sure the ADA takes its rightful place once again as the umbrella civil rights statute for all Americans with disabilities.

I thank all of my colleagues. I look forward to the passage of this bill in the House. I look forward to the President hopefully signing it as early as next week.

August 21, 2008

Exhibit 1

Re: The ADA Amendments Act of 2008

Hon. Tom Harkin,

U.S. Senate,

Washington, DC.

Dear Senator Harkin: The undersigned groups, representing a

broad range of interests, write in support of the ADA

Amendments Act of 2008 (S. 3406). This bill introduced on

July 31, 2008, had 64 cosponsors as of August 1, with 55 of

those joining as original cosponsors.

S. 3406, the ADA Amendments Act, would revise the ADA, in a

manner designed to work for both people with disabilities and

for entities governed under the law. The bill is a result of

sustained efforts between Senators from both sides of the

aisle and intensive and thoughtful talks between

representatives of the disability community and entities

governed by the law. For that reason, we believe that S. 3406

strikes a delicate balance between the needs of individuals

with disabilities and the realities experienced by entities

including employers and public accommodations, which are

covered under the law.

We urge your support in making enactment of S. 3406, the

ADA Amendments Act, a reality as soon as Congress returns to

work in September. We stand ready to work with you towards

that end.

Sincerely,

ABC Business Services, Illinois; Abilities in Motion,

Pennsylvania; ADA Watch/National Coalition for

Disability Rights; ADA Help, Inc., Florida; Air Force

Association; Air Force Sergeants Association; Air Force

Women Officers; Associated Alliance of Disability

Advocates Center for Independent Living, North

Carolina; Alpha-1 Association; Alpha-1 Foundation; ALS

Association; Alzheimer's Association; American

Association for Affirmative Action; American

Association for Respiratory Care; American Academy of

Nursing; American Association of Diabetes Educators;

American Association of People with Disabilities

(AAPD); American Association of University Women;

American Autoimmune Related Diseases Association;

American Bakers Association; American Cancer Society

Cancer Action Network; American Civil Liberties Union

(ACLU); American Composites Manufacturers Association;

American Council of the Blind; American Diabetes

Association; American Federation of Government

Employees--Veterans Council.

American Federation of Labor--Congress of Industrial

Unions (AFL-CIO); I American Federation of State,

County & Municipal Employees (AFSCME); American

Federation of Teachers (AFT); American Foundation for

the Blind; American Foundry Society; American GI Forum;

American Islamic Congress; American Jewish Committee;

American Kidney Fund; American Liver Foundation;

American Lung Association; American Medical Rehabilitation

Providers Association; American Mental Health Counselors

Association; American Physical Therapy Association;

American Psychological Association; American Society of

Employers; AMVETS; ANCOR; Anixter Center, Illinois; Anti-

Defamation League; APEERS (Alternative Peer Edu/Enrichment

Recovery Society), West Virginia; APSE: The Network on

Employment; Arab Anti-Discrimination Committee; The Arc of

Tucson, Arizona; The Arc of the United States.

The Arc of Utah; Arthritis Foundation; ARISE, New York;

Asian American Justice Center; Associated Builders and

Contractors, Inc.; Association of Jewish Family &

Children's Agencies; Association of Programs for Rural

Independent Living (APRIL); Association of University

Centers on Disabilities (AUCD); Asthma and Allergy

Foundation of America; Autism Society of America; The

Autistic Self-Advocacy Network; AZ Bridge to

Independent Living; Bazelon Center for Mental Health

Law; BH Electronics, Inc.; Bimba Manufacturing; B'nai

B'rith International; Brain Injury Association of

America; Breast Cancer Network of Strength; Business

and Institutional Furniture; Manufacturers Association;

Capital Associated Industries, Inc.; Care4Dystonia,

Inc.; Central Conference of American Rabbis; Center for

Women Policy Studies; Children and Adults with

AttentionDeficit/Hyperactivity Disorder; Christopher

and Dana Reeve Foundation.

The Christian Church (Disciples of Christ) in the United

States and Canada; CIGNA Corporation; Coastal Health

District, Georgia; Coleman Global Telecommunications,

LLC; Community Action Partnership; Community Health

Charities of America; Community Resources for

Independent Living, California; Control Technology,

Inc.; COPD Foundation; Council of Parent Attorneys and

Advocates; Council of State Administrators of

Vocational Rehabilitation (CSAVR); Crohn's and Colitis

Foundation of America; Disabled American Veterans;

Disability Policy Consortium, Inc.; Disability Rights

Wisconsin (WI P&A); DTE Energy Company; Easter Seals;

Eastman Chemical; Ellwood Group Inc.; Enlisted

Association of the National Guard of the United States;

Epilepsy Foundation; Evangelical Lutheran Church in

America; Freedom Resource Center for Independent

Living, Minnesota; Freedom Resource Center for

Independent Living, North Dakota; Friends Committee on

National Legislation;

Friends of the National Institute of Dental, and

Craniofacial Research.

Georgia Voice That Count; Granite State Independent

Living; Guide Dog Foundation for the Blind, Inc.;

Hearing Loss Association of America; Hearing Loss

Association of America, Manhattan Chapter; Hearing Loss

Association of America, Mid Hudson Chapter; Hearing

Loss Association of America, North Shore Chapter of

Long Island; Hearing Loss Association of America,

Queens at Lexington; Hearing Loss Association of

America, Western New York Chapter; Heat Transfer

Equipment Company; Higher Education Consortium for

Special Education; Hindu American Foundation; HR Policy

Association; Human Rights Campaign; Huntington's

Disease Society of America; Hydrocephalus Association;

Idaho State Independent Living Council; Illinois

Manufacturers' Association; International Association of

Official Human Rights Agencies; International Franchise

Association; International Paper Company; Iraq &

Afghanistan Veterans of America; Islamic Society of North

America; Japanese American Citizens League; Jewish Council

for Public Affairs.

Jewish Reconstructionist Federation; J.T. Fennell Co.;

Koller-Craft Plastic Products; Lakeside Equipment

Corporation; The LAM Foundation; Lambda Legal; Lawyers'

Committee for Civil Rights Under Law; Leadership

Conference on Civil Rights (LCCR); Learning

Disabilities Association of America (LDA); The Leukemia

& Lymphoma Society; Life, Inc., Georgia; Liz Thurber

Slipcovers; Lupus Foundation of America; The Management

Association of Illinois; Manufacturer & Business

Association (Erie, PA); March of Dimes; Mental Health

America; Michigan Alliance of State Employees with

Disabilities (Michigan ASED); Michigan Chapter of

Paralyzed Veterans; Michigan Rehabilitation

Association; Military Officers Association of America;

Molded Fiber Glass Companies; Monadnock Paper Mills,

Inc.; Motorola; Mullinix Packages, Inc.

Muslim Public Affairs Council; Myasthenia Gravis

Foundation of America; NAACP Legal Defense &

Educational Fund, Inc.; National Advocacy Center of the

Sisters of the Good Shepard; National Alliance on

Mental Illness (NAMI); National Alopecia Areata

Foundation; National Association for the Advancement of

Colored People (NAACP). National Association for Black

Veterans; National Association for Employment of People

who are Blind (NAEPB); National Association for

Uniformed Services; National Association of Councils on

Developmental Disabilities; National Association of

County Behavioral Health and Developmental Disability

Directors; National Association of Governors'

Committees on People with Disabilities (NAGC); National

Association of Human Rights Workers; National

Association of Manufacturers; National Association of

the Physically Handicapped (Manistee County Chapter);

National Association of Social Workers; National

Association of State Directors of Special Education;

National Association of State Head Injury

Administrators; National Association of the Deaf;

National Center for Learning Disabilities (NCLD);

National Congress of Black Women, Inc.; National

Council for Community Behavioral Healthcare; National

Council of Churches in the USA.

National Council of Jewish Women; National Council of La

Raza (NCLR); National Council on Independent Living

(NCIL); National Disability Rights Network (NDRN);

National Down Syndrome Congress; National Down Syndrome

Society; National Education Association (NEA); National

Employment Lawyers Association; National Fair Housing

Alliance; National Family Caregivers Association;

National Federation of Filipino American Associations

(NaFFAA); The National Foundation for Ectodermal

Dysplasias; National Health Council; National Health

Law Program; National Industries for the Blind (NIB);

National Kidney Foundation; National Legal Aid and

Defender Association; National Marfan Foundation; National

Multiple Sclerosis Society; National MS Society, Hawaii

Chapter; National Organization for Women; National

Organization on Fetal Alcohol Syndrome (NOFAS); National

Psoriasis Foundation; National Women's Law Center; Naval

Reserve Association; NCEP Brain Injury Rehabilitation

Program, Nevada.

NETWORK: A National Catholic Social Justice Lobby;

Nevadans for Equal Access, Inc.; New Jersey Protection

and Advocacy; NISH; Non-Commissioned Officers

Association; Northeast Pennsylvania Manufacturers and

Employers Association; Northwestern Mutual; Ohio

Disability Action Coalition; Oregon Family Support

Network; Organization of Chinese Americans;

Osteogenesis Imperfecta Foundation; Our Children Left

Behind; The Paget Foundation; Paralyzed Veterans of

America; Parent Project Muscular Dystrophy; People

Escaping Poverty Project, Minnesota; People First of

Nevada; Portland General Electric; PPG Industries;

Precision Metalforming Association; Presbyterian Church

(USA), Washington Office; Prevent Blindness America;

Reserve Enlisted Association; RESOLVE: The National

Infertility Association.

RTC Paratransit Evaluation Services, Nevada; Roaring

Spring Blank Book Co.; Ryder System, Inc.; SEIU--

Service Employees International Union; Self-Advocacy

Association of New York State, Inc.; Services for

Independent Living, Missouri; Sikh American Legal

Defense and Education Fund (SALDEF); Sjogren's Syndrome

Foundation; Society for Human Resource Management;

Southeast Kansas Independent Living Resource Center,

Inc. (SKIL); Southern Champion Tray LP; Spina Bifida

Association; State of Nevada TBI Advisory Council;

Stuller, Inc.; The Taylor-Winfield Corporation; Teacher

Education Division of the Council for Exceptional

Children; Texas Association of the Deaf; Textile Rental

Services Association of America; Ultra Tech Machinery

Inc.; United Cerebral Palsy; United Cerebral Palsy of

Central Ohio; United Church of Christ, Justice and

Witness Ministries; United Food and Commercial Workers

International Union; United Methodist Church, General

Board of Church and Society.

Union for Reform Judaism; Unitarian Universalist

Association of Congregations; United Jewish

Communities; United Spinal Association; Uniweld

Products Inc.; U.S. Chamber of Commerce; U.S.

Conference of Catholic Bishops; U.S. Psychiatric

Association; U.S. Psychiatric Rehabilitation

Association; US TOO International; Vanamatic Company;

Veterans of Foreign Wars of the United States; Veterans

of Modern Warfare; Vietnam Veterans of America; West

Suburban Access News Association; Wisconsin

Manufacturers & Commerce; Women of Reform Judaism; The

Workmen's Circle/Arbeter Ring; World Institute on

Disability.

I suggest the absence of a quorum.

I thank the chairman for his remarks. And I thank Mr. McKeon for his leadership and willingness to work together on a difficult issue.

I certainly want to acknowledge and thank my friend Jim Sensenbrenner, Congressman Sensenbrenner, who has been chairman of the committee, the Judiciary Committee, who has been a leader in this Congress, and his wife, Cheryl. Cheryl, like the young man we just saw speak, Congressman Jim Langevin, has shown great courage, but also has shown that disability is not disabling; that we ought to look at the ability people have, what they can do, not what they can't do. All of us can't do certain things. I urge people to look at what people can do. And that's what this bill was about in 1990. That's what this bill is about today.

And I am very pleased to be here to speak on behalf of this bill. I think this bill may well pass unanimously, and the public might conclude, therefore, that this was not contentious and difficult, it was both--not contentious in terms of enabling those with disabilities to be fully included in our society, but how to do that; how to do that in the context of making sure that the business community could live with this, that the disabilities community could live with this, and that we did, in fact, accomplish the objectives that we intended.

I want to thank as well the Chamber of Commerce, the National Association of Manufacturers and other business groups who came together with the disabilities community with a common objective. Randy Johnson worked on behalf of the Chamber of Commerce. And Randy Johnson, at a press conference that was held when the Senate passed this bill just a few days ago, said that he was a staffer here in 1988 and '89 and '90 when we passed the Americans with Disabilities Act. And he made the observation that--he sat on the floor, he worked with the leadership on the Republican side and the Democratic side, worked particularly with my friend, Steve Bartlett, Congressman Steve Bartlett from Texas, who was intimately involved in fashioning and working out the compromises necessary to overwhelmingly pass the ADA in 1990. And he said it was clear then that the intent of Congress had been misconstrued by the Supreme Court--this is Randy Johnson, Republican staffer, leader now in the Chamber of Commerce of the United States who helped fashion this bill. And this bill really says, yes, we agree with that in a bipartisan way. The Supreme Court misinterpreted what our intent was. And our intent was to be inclusive.

Civil rights bills are intended to be interpreted broadly. Why? Because we want to make sure that every American has the benefits that America has to offer, the opportunities that America has to offer, and to empower them to help America be a better country, to bring their talents and their skills and their motivation to bear in the public and private sectors.

I want to thank as well Nancy Zirkin, Andy Imperato, my--as I call him my lawyer, Chai Feldblum, who has worked so hard on this for now 20-plus years. It's been 18 years since we passed the ADA, but as Mr. Miller knows, it's been 20-plus years--25 years really--that we've been working on getting to this point.

I also want to thank Mike Peterson of H.R. Policy and Jerry Gillespie of the National Association of Manufacturers.

There are so many people that I could spend the next 5 or 10 minutes mentioning just name after name after name who made this happen. I won't do that, not to diminish them in any way, but to say that this is the result of the efforts of many--not of me, but of many; not of Mr. Miller alone or the ranking member alone or Mr. Sensenbrenner, but many dedicated to this cause.

We are here to build on the accomplishments of the landmark Disabilities Act of 1990. We wouldn't be here at all, however, without the hard work, frankly, of a very close friend of mine, former Member of Congress, Tony Coelho. Tony Coelho had a vision. Tony Coelho suffers from epilepsy. There is nobody who knows Tony Coelho that thinks he is not able to do anything, everything, and all things. Tony Coelho empowered all of us to think larger, to understand how to bring about real change for those with disabilities.

Tony Coelho, an epileptic, was asked to leave the seminary because he had epilepsy because the church concluded he really couldn't do the job. It was the church's loss and our gain. He made a tremendous contribution to this institution. But much more importantly, in

the last some 20 years that he has not been a Member of this institution he continued to make an extraordinary contribution, not just to those with disabilities, but to our society, in expanding our consciousness and inclusion.

And I mention his name, but I also want to thank my friend, Steve Bartlett. Steve Bartlett, Congressman, then the Mayor of Dallas, now in the private sector, but engaged in the eighties and nineties and engaged in the passage of this bill today, was extraordinarily helpful to us. In 1990, the original ADA was the product of the vision of so many.

I also want to thank my former staffer, Melissa Schulman, who worked indefatigably as we passed the ADA in 1990.

When the first President Bush signed the Americans with Disabilities Act 18 years ago, America became the world's leader on this central test of human rights. The ADA was a project in keeping with our oldest principles and founding ideals. As President Bush the first, as I call him, put it at the signing ceremony, and I quote, ``Today's legislation,'' he said, ``brings us closer to that day when no Americans will ever again be deprived of their basic guarantee of life, liberty and the pursuit of happiness.''

Thanks to the ADA, that day became closer on July 26, 1990. Thanks to the passage of this bill today and the signatures Mr. Miller indicated next week, and the expected signatures of the President, with hopefully the first President Bush present, tens of millions of Americans with disabilities will now enjoy even fuller rights, and the rights that we intended them to enjoy when we passed the ADA--the right to use the same streets, theaters, restrooms or offices, the right to prove themselves in the workplace, to succeed on their talent and drive alone.

We've accomplished much in terms of public accommodations, in terms of reasonable accommodations. I was sitting there with Michele Stockwell, my policy director, as we watched Jim Langevin give his speech. What a wonderful accommodation he has in that chair that stands up. Weren't all of you impressed when he said, ``I rise to support this legislation?'' ``I rise.'' And he does rise. Why? Because he has a reasonable accommodation which, notwithstanding the failure of his legs to work the way he would like them to work, his chair reasonably accommodates and has him rise to speak to this body as a testimony to the consciousness of having been raised to make sure that a person like Jim Langevin--of great ability, of great ability, not disability, but of great ability--can come here, having been shot at the age of 16 inadvertently, by accident, disabled, graduated from high school, graduated from college, elected to the Rhode Island House, elected to Secretary of State of his State, and now a Member of this body. What a testimony to making sure that we made sure Jim Langevin could get through the door; we made sure Jim Langevin could get the kind of education he wanted and have access to that education. What a testimony to what this Congress has done, but more importantly, what so many courageous people with a disability have shown us all, that a disability is not disabling. It may rob us of a single or maybe even multiple ways that some people do things, but not of all things.

Sadly, as a result of the Supreme Court's decision, we have yet to live up to our promise fully. That's what we're trying to do today. We've made progress on access, we've made progress on listening devices, a lot of progress. One of the places we haven't made the progress we wanted to was employment. So many people want to work, want to be self-sufficient, want to be enterprising, want to have the self- respect of earning their own way, but have been shut out. And the Supreme Court didn't help us. That's what this bill is about.

Over the last 18 years, the Court has chipped away at that promise and at Congress' clear original intent. We said we wanted broad coverage for people with disabilities and people regarded as disabled. Important phrase, ``regarded as disabled.'' What the Supreme Court really said, well, if you can make sure that your disability does not disable you. Tony Coelho takes medicine for his epilepsy, and so he functions. And if you saw him, you would say he's functioning fine. But if I said, but I won't hire you, Tony, because you have epilepsy, the Court said that was okay. Nobody on this floor believed that was the case. If he was discriminated against because he had a disability but could do the job, we said that's wrong. The Court did not agree with us, and we're now changing that and making sure that our intent will be lived out.

We never expected that the people with disabilities who work to mitigate their conditions would have their efforts held against them, but the courts did exactly that. Those narrow rulings, which will be changed by this legislation, have closed the door of opportunity for millions of Americans. We're here today to bring those millions of our fellow citizens back to where they belong--where we want them, where we need them, under the protection of the ADA.

By voting for final passage of the ADA Amendment Act, we ensure that the definition of disability will henceforth be construed broadly and fairly. We make it clear that those who manage to mitigate their disabilities can still be subject to discrimination; we know that intuitively and practically. This legislation says we know it legislatively. And we recognize that those regarded as having a disability are equally at risk and deserve to be equally protected.

This bill, which was approved by the Senate last week unanimously, has come so close to a signature thanks to the tireless work of the members of the disability community, leaders from both parties and business groups, a coalition as broad and deep as the one that created the original ADA.

I want to recognize the cosponsor of this bill, as I said earlier, Jim Sensenbrenner, tireless in his advocacy, and his wife, Cheryl. I want to thank my good friend Tony Coelho. As I said at a press conference last week, I have served in the Congress for 28 years. There will be a time when I will retire. And I will look back on my career. And one of the proudest achievements I will have is the work that I have done at Tony's insistence and request on behalf of the Americans with Disabilities Act and those who are challenged by being shut out of our society.

Finally, it is my honor to dedicate this bill to a pioneering disability advocate and an inspiration behind the ADA. He is listening to us. He died some years ago. His name was Justin Dart. Justin Dart, like Jim Langevin, was in a wheelchair. It didn't disable him. Indeed, it empowered him. It empowered him to educate all of us. It empowered him to educate those with disabilities as to what they could do and accomplish by their efforts to join together, to educate us and to educate the country. His bride, Yoshiko Dart, carries on that torch.

When Justin Dart spoke last that I heard him at the White House, he said I may not be with you for a long time. But I want you to keep on keeping on. Justin, that is what we do today.

Madam Speaker, Mr. Sensenbrenner and I submit the following regarding S. 3406:

For over a decade, courts have narrowed the scope of the

ADA and have thereby excluded many individuals whom Congress

intended to cover under the law. The unfortunate impact of

too narrow an interpretation has been to erode the promise of

the ADA.

With the passage of the ADA Amendments Act (ADAAA) today,

we ensure that the ADA's promise for people with disabilities

will be finally fulfilled. Our expectation is that this law

will afford people with disabilities the freedom to

participate in our community, free from discrimination and

its segregating effects, that we sought to achieve with the

original ADA.

The House of Representatives passed the ADA Amendments Act,

H.R. 3195, on June 25, 2008, by an overwhelming vote of 402-

17. The purpose of this legislation was to restore the intent

of Congress to cover a broad group of individuals with

disabilities under the ADA and to eliminate the problem of

courts focusing too heavily on whether individuals were

covered by the law rather than on whether discrimination

occurred.

That commitment has now been echoed by passage in the

Senate of the ADA Amendments Act, S. 3406, by unanimous

consent. We welcome the opportunity to pass today the version

of the ADA Amendments Act passed by the Senate, here in the

chamber where it began its journey on July 26th, 2007.

We are particularly pleased with the alliance of business

and disability representatives who came together to work with

us on this bill and support its passage throughout both

houses of Congress. Last January, we personally encouraged

these groups to work together to reach an agreement that

would work well for both people with disabilities and for

entities covered under the law. We are pleased that they have

been able to do so throughout this bill's legislative

process.

H.R. 3195, the ADA Amendments Act passed by the House, and

S. 3406, the ADA Amendments Act passed by the Senate, are

identical in most important respects.

Both H.R. 3195 and S. 3406 contain identical language

concerning mitigating measures, episodic conditions, major

life activities including major bodily functions, treatment

of claims under the ``regarded as'' prong, ensuring

regulatory authority over the definition of disability, and

conforming Section 504 of the Rehabilitation Act to be

consistent with the changes made by the ADAAA.

Hence, the Report of the House Committee on Education and

Labor and the Report of the House Committee on the Judiciary,

as well as our Joint Statement introduced into the

Congressional Record on June 25, 2008, continue to accurately

convey our intent with regard to the bill we are passing

today.

While the intent is the same, as discussed more fully

below, S. 3406 takes a slightly different approach than H.R.

3195. Consequently, we want to make it clear that where the

House Committee Reports and our joint statement used the term

``materially restricts'' to establish points in various

examples, those examples should be read to convey the same

points, and the term ``materially restricts'' should be

understood to refer to the less demanding standard for the

term ``substantially limits'' prescribed by both H.R. 3195

and S. 3406. For example, the statement in the House

Education and Labor Report that ``the Committee expects that

a plaintiff such as Littleton could provide evidence of

material restriction in the major life activities of

thinking, learning, communicating and interacting with

others'' should be understood to mean that the Committee

expects that a plaintiff such as Littleton could provide

evidence of substantial limitation in thinking, communicating

and interacting with others. (See Littleton v. Wal-Mart

Stores, Inc., 231 Fed. Appx. 874 (11th Cir. 2007)).

The key difference between the two bills is that S. 3406

uses a different means to achieve

the same goal that we achieved with H.R. 3195. As we explain

below, we are comfortable accepting this approach.

In H.R. 3195, we achieved this goal by redefining the term

``substantially limits'' to mean ``materially restricts'' in

order to indicate to the courts that they had incorrectly

interpreted the term ``substantially limits'' in Toyota Motor

Mfg. of Kentucky, Inc. v. Williams, and to convey to the

courts our expectation that they would apply a less demanding

standard of severity than had been applied by the Supreme

Court.

Our colleagues in the Senate, however, were uncomfortable

with creating a new term in the statute. Hence, they achieved

the same goal through a different means.

Instead of redefining the term ``substantially limits,'' S.

3406 states that such term ``shall be interpreted

consistently with the findings and purposes'' of the ADA

Amendments Act. This is a textual provision that will legally

guide the agencies and courts in properly interpreting the

term ``substantially limits.'' With regard to the findings

and purposes that the textual provision requires the agencies

and court to use, S. 3406 incorporates all of the findings

and purposes of H.R. 3195, including statements that Congress

intended for the ADA to provide broad coverage and that this

legislation rejects the Supreme Court's decisions in Sutton

and Williams that inappropriately narrowed the scope of

protection of the ADA.

In order to explain how it intended the definition of

``substantially limits'' to be interpreted, the Senate added

findings which highlighted the fact that the Williams

decision placed a too high threshold on the definition of

substantially limits and that the EEOC's interpretative

regulations were similarly drafted or interpreted to create a

burden not contemplated by the Congress. Consistent with

these findings, the Senate added two purposes which directed

the EEOC to amend its regulations to reflect the purposes of

the ADA as amended by the ADAAA and which noted that the

thrust of ADA inquiry should be directed to the compliance

obligations of the covered entities rather than the scope of

the disability experienced by the individual asserting

coverage under the Act.

While we believe that the approach we adopted in H.R. 3195

would have been workable for the courts--i.e., providing a

new definition of ``substantially limits'' in order to convey

to courts our intention that they should apply a lower

standard of severity than they previously had--we accept the

considered judgment of our colleagues in the Senate that

their approach achieves the same end, but in a manner more

suitable to their interests.

S. 3406 also modifies the rule of construction that we had

placed in H.R. 3195. Under the Senate's construction, the

definition of disability ``shall be construed in favor of

broad coverage of individuals under this Act, to the maximum

extent permitted by the terms of this Act.'' We understand

that this provision will have the same meaning as the rule of

construction that we had included in H.R. 3195, but with a

clarification that the courts may not interpret the

definition of disability in a manner inconsistent with the

terms of the ADA. That, of course, is true.

In addition, the changes made by S. 3406 will send an

important signal to the courts. We expect that courts

interpreting the ADA after these amendments are enacted will

not demand such an extensive analysis over whether a person's

physical or mental impairment constitutes a disability. Our

goal throughout this process has been to simplify that

analysis.

With the passage of the ADA Amendments Act today, we

finally fulfill our promise to tear down the barriers of

ignorance and misinterpretation that make up an unpardonable

``wall of exclusion'' against people with disabilities. See

George H. W. Bush, Remarks on Signing the Americans with

Disabilities Act of 1990 (July 26, 1990).

We are grateful to the individuals and advocates who have

worked tirelessly to ensure the civil rights and inclusion of

people with disabilities in every aspect of life. This

includes work during various stages of the bill to bring it

to a successful conclusion.

A large group of individuals worked closely with us as we

developed the second ADA Restoration Act that was introduced

on July 26, 2007:

Tony Coelho, Immediate Past Board Chair of the Epilepsy

Foundation and Former U.S. Representative; Cheryl

Sensenbrenner, Board Chair of the American Association of

People with Disabilities (AAPD); Andy Imparato, AAPD; Sandy

Finucane, Epilepsy Foundation and her lawyers at the

Georgetown Federal Legislation and Administrative Clinic:

Heather Sawyer, Kevin Barry and Chai Feldblum; Jennifer

Mathis, Bazelon Center for Mental Health Law; Abby Bownas and

Shereen Arent, American Diabetes Association (ADA); Curt

Decker and Ken Shiotani, National Disability Rights Network

(NDRN); Arlene Mayerson and Marilyn Golden, Disability Rights

Education and Defense Fund (DREDF); Claudia Center, Legal Aid

Society of CA; Janna Starr, Paul Marchand and Erika Hagensen

of The Arc/UCP Public Policy Collaboration; Denise Rozell,

Easter Seals; Lee Page, Paralyzed Veterans Association; Bobby

Silverstein, Center for the Study and Advancement of

Disability Policy, and John Lancaster, National Council on

Independent Living (NCIL).

In January 2008, we urged representatives from both

communities to sit down with each other and to understand

each other's needs and concerns. We appreciate the leadership

role displayed in these conversations by the following

individuals on behalf of the disability community: Sandy

Finucane, Epilepsy Foundation; Professor Chai Feldblum,

Georgetown Law; Andy Imparato, AAPD; Jennifer Mathis, Bazelon

Center for Mental Health Law; Curt Decker, NDRN; John

Lancaster, NCIL.

We appreciate the leadership role displayed in these

conversations by the following individuals on behalf of the

business community: Randy Johnson and Michael Eastman, U.S.

Chamber of Commerce; Mike Peterson, HR Policy Association;

Jeri Gillespie, National Association of Manufacturers; Mike

Aitken and Mike Layman, Society for Human Resource

Management.

We appreciate the intensive work done by the core legal

team in these discussions, led by Professor Chai Feldblum and

Jennifer Mathis for the disability negotiators, ably assisted

by Kevin Barry, Jim Flug, John Muller and Emily Benfer, and

led by Mike Eastman, Lawrence Lorber, Proskauer Rose, LLP,

and Mike Peterson. We know that this group greatly

appreciated the wise counsel of lawyers from each of their

respective communities as they went through this process,

including Camille A. Olson, Seyfarth Shaw; HR Policy

Association's Employment Rights Committee, chaired by Susan

Lueger of Northwestern Mutual; Kevin McGuiness; and David

Fram, who provided wise counsel for the business community

and Professor Sam Bagenstos; Brian East, Advocacy, Inc.;

Claudia Center, Legal Aid of CA; Shereen Arent, ADA, Arlene

Mayerson, DREDF and JoAnne Simon, who provided wise counsel

for the disability community.

We benefited greatly from the fact that former colleagues

in both Congress and the Administration lent their support to

this effort, including former U.S. Representative Steve

Bartlett, former U.S. Representative Tony Coelho, former

Senator Robert Dole, and former Attorney General Richard

Thornburgh.

We appreciate the personal leadership role taken by Nancy

Zirkin and Lisa Bornstein of the Leadership Conference in

Civil Rights in making this a priority for the civil rights

community.

Finally, at the risk of leaving out some individuals, we

want to recognize some of the additional countless

individuals who helped with educating Members of Congress,

doing important coalition and media work, and providing legal

input on the bill as it progressed through Congress, from its

first stages through the final vote today: Anne Sommers,

AAPD; Angela Ostrom, Donna Meltzer, Hans Friedhoff, Ken

Lowenberg, Kimberli Meadows, and Lisa Boylan, Epilepsy

Foundation; Day Al Mohamed, American Psychological

Association; Deb Cotter, NCIL; Joan Magagna and Ron Hager,

NDRN; Mistique Cano, Maggie Kao and Robyn Kurland, Leadership

Conference for Civil Rights; Peggy Hathaway and Jim Wiseman,

United Spinal Association; Annie Acosta, The Arc/UCP

Disability Policy Collaboration; Lewis Bossing, Bazelon

Center for Mental Health Law; John Kemp, U.S. International

Council on Disabilities; Bebe Anderson, Lambda Legal Defense

Fund; Robert Burgdorf, UDC law professor; Rosaline Crawford,

National Association of the Deaf (NAD); Mark Richert,

American Foundation for the Blind; Eric Bridges, American

Council for the Blind; Jessica Butler, Council of Parent

Attorneys and Advocates; Michael Collins, Julie Carroll and

Jeff Rosen, NCD; Steve Bennett, UCP, Lise Hamlin, Hard of

Hearing Association of America; Laura Kaloi, National Center

for Learning Disabilities; Donna Lenhoff and Gary Phelan,

National Employment Lawyers Association (NELA); Darrin Brown

and Evelyn Morton, AARP; Dan Kohrman, AARP Foundation and

NELA; Katy Beh Neas, Easter Seals; Andrew Sperling, National

Alliance on Mental Illness; Toby Olson, Washington State

Governor's Committee on Disability Issues and Employment;

Myrna Mandlawitz, Learning Disabilities Association; Ari

Ne'eman, Autistic Self Advocacy Network; Shawn O'Neail,

National Multiple Sclerosis Society; Laura Owens; APSE: The

Network on Employment; Cindy Smith, CHADD; Jim Ward, ADA

Watch/National Council on Disability Rights; Nathan Vafaie,

National Health Council; David Webbert, Johnson & Webbert;

Joanne Lin, Michelle Richardson, and Deborah Vagins, ACLU

Washington Legislative Office; Lynne Landsberg and Kate

Bigam, Religious Action Center of Reform Judaism, Amy Rosen,

United Jewish Communities; Elissa Froman, National Council of

Jewish Women; Jayne Mardock, National Kidney Foundation; Jack

Clark and Mark Freedman, U.S. Chamber of Commerce; Tim Bartl,

HR Policy Association; Recardo Gibson, SHRM; Bo Bryant,

McDonald's; Keith Smith, Ryan Modlin and Bob Shepler,

National Association of Manufacturers; Ty Kelley, Food

Marketing Institute; and Jason Straczewski, International

Franchise Association.

Regardless of the work done by advocates, however, it is

ultimately we in Congress who must get the job done. We

applaud the commitment of Congressman George Miller, Chair,

and Congressman Buck McKeon, Ranking Member, Committee on

Education and Labor; Congressman John Conyers, Chair, and

Congressman Lamar Smith, Ranking Member, Committee on

Judiciary; Congressman Jerry Nadler, Chair, and Congressman

Trent Franks, Ranking Member, Subcommittee on the

Constitution, Civil Rights, and Civil Liberties; Congressman

John Dingell, Chair, and Congressman Joe

Barton, Ranking Member, Committee on Energy and Commerce;

Congressman James Oberstar, Chair, and Congressman John Mica,

Ranking Member, Committee on Transportation and

Infrastructure for bringing this bill successfully through

their committees. We applaud our 400 colleagues who voted

with us to pass the ADA Amendments Act this past June and

we applaud the Senate that unanimously passed the ADA

Amendments Act last week.

And, of course, there is no way we could have done all the

work that we did on this bill without the dedicated

assistance of our staff and the staff of the committees. So,

we would particularly like to thank Michele Stockwell, Keith

Abouchar, Michael Lenn, Sharon Lewis, Heather Sawyer, Mark

Zuckerman, Jim Paretti, Ed Gilroy, Brian Kennedy, Paul

Taylor, David Lachmann, Alex, Nock, Thomas Webb, Jody

Calemine, Tico Almeida, Chris Brown, and Ken Serafin.

What really matters, when all is said and done, is the work

done by people with disabilities every day across this great

nation. The passage of the ADA Amendments Act today is

intended to ensure that they receive the simple, basic

opportunity to participate fully in all aspects of society.

We are grateful to have played a role in helping to make that

happen,

I thank the gentleman.

Madam Speaker, I want to commend the distinguished majority leader and the gentleman from Wisconsin (Mr. Sensenbrenner) as well as the chairman of the Judiciary Committee and the chairman of the Education and Labor Committee for their leadership on this important legislation.

This bill would help to restore the Americans with Disabilities Act to its rightful place among this Nation's great civil rights laws.

This legislation is long overdue. Countless Americans with disabilities have already been deprived of the opportunity to prove that they have been victims of discrimination, that they are qualified for a job, or that a reasonable accommodation would afford them an opportunity to participate fully at work and in community life.

This bill fixes the absurd Catch-22 created by the Supreme Court in which an individual can face discrimination on the basis of an actual past or perceived disability and yet not be considered sufficiently disabled to be protected against that discrimination by the ADA. That was never Congress' intent, and this bill cures this problem.

Some of my colleagues from across the aisle have raised concerns that this bill might cover minor or trivial conditions. They worry about covering stomachaches, the common cold, mild seasonal allergies, or even a hangnail. I have yet to see a case where the ADA covered an individual with a hangnail. But I have seen scores of cases where the ADA was construed not to cover individuals with cancer, epilepsy, diabetes, severe intellectual impairment, HIV, muscular dystrophy, and multiple sclerosis.

These people have too often been excluded because their impairment, however serious or debilitating, was mischaracterized by the courts as temporary or its impact considered too short-lived and not permanent enough.

That's what happened to Mary Ann Pimental, a nurse with breast cancer who challenged her employer's failure to rehire her into her position when she returned from treatment. Ms. Pimental was told by the court that her cancer was not a disability and that she was not covered by the ADA. The court recognized that ``there is no question that her cancer has dramatically affected her life, and that the associated impairment has been real and extraordinarily difficult for her and her family.'' Yet the court still denied her coverage because it characterized the impact of her cancer ``short-lived''--meaning that it ``did not have a substantial lasting effect'' on her.

Mary Ann Pimental died as a result of her breast cancer 4 months after the court issued its decision. I am sure that her husband and two children disagreed with the court that her cancer was short-lived and not sufficiently permanent.

This bill ensures that individuals like Mary Ann Pimental are covered by the law when they need it. The bill requires the courts--and the Federal agencies providing expert guidance--to lower the burden for obtaining coverage under this landmark civil rights law. This new standard is not onerous and is meant to reduce needless litigation over the threshold question of coverage.

It is our sincere hope that, with the passage of this bill, we will finally be able to focus on the important questions: Is an individual qualified? Might a reasonable accommodation afford that person the same opportunities that his or her neighbors enjoy?

I therefore urge my colleagues to join me in voting for passage of H.R. 3195 as reported unanimously by the Judiciary Committee. I thank everyone associated with its passage.

Madam Speaker, I want to commend the distinguished majority leader and gentleman from Wisconsin, Mr. Sensenbrenner, for their leadership on this important legislation.

H.R. 3195 would help to restore the Americans with Disabilities Act to its rightful place among this Nation's great civil rights laws.

This legislation is necessary to correct Supreme Court decisions that have created an absurd Catch-22 in which an individual can face discrimination on the basis of an actual, past, or perceived disability and yet not be considered sufficiently disabled to be protected against that discrimination by the ADA. That was never Congress's intent, and H.R. 3195 cures this problem.

H.R. 3195 lowers the burden of proving that one is disabled enough to qualify for coverage. It does this by directing courts to read the definition broadly, as is appropriate for remedial civil rights legislation. It also redefines the term ``substantially limits,'' which was restrictively interpreted by the courts to set a demanding standard for qualifying as disabled. An individual now must show that his or her impairment ``materially restricts'' performance of major life activities. While the impact of the impairment must still be important, it need not severely or significantly restrict one's ability to engage in those activities central to most people's daily lives, including working.

Under this new standard, for example, it should be considered a material restriction if an individual is disqualified from his or her job of choice because of an impairment. An individual should not need to prove that he or she is unable to perform a broad class or range of jobs. We fully expect that the courts, and the Federal agencies providing expert guidance, will revisit prior rulings and guidance and adjust the burden of proving the requisite ``material'' limitation to qualify for coverage.

This legislation is long overdue. Countless Americans with disabilities have already been deprived of the opportunity to prove that they have been victims of discrimination, that they are qualified for a job, or that a reasonable accommodation would afford them an opportunity to participate fully at work and in community life.

Some of my colleagues from across the aisle have raised concerns that this bill would cover ``minor'' or ``trivial'' conditions. They worry about covering ``stomach aches, the common cold, mild seasonal allergies, or even a hangnail.''

I have yet to see a case where the ADA covered an individual with a hangnail. But I have seen scores of cases where the ADA was construed not to cover individuals with cancer, epilepsy, diabetes, severe intellectual impairment, HIV, muscular dystrophy, and multiple sclerosis.

These people have too often been excluded because their impairment, however serious or debilitating, was mis-characterized by the courts as temporary, or its impact considered too short-lived and not permanent enough--although it was serious enough to cost them the job.

That's what happened to Mary Ann Pimental, a nurse who was diagnosed with breast cancer after being promoted at her job. Mrs. Pimental had a mastectomy and underwent chemotherapy and radiation therapy. She suffered radiation burns and premature menopause. She had difficulty concentrating, and experienced extreme fatigue and shortness of breath. And when she felt well enough to return to work, she discovered that her job was gone and the only position available for her was part-time, with reduced benefits.

When Ms. Pimental challenged her employer's failure to rehire her into a better position, the court told her that her breast cancer was not a disability and that she was not covered by the ADA. The court recognized the ``terrible effect the cancer had upon'' her and even said that ``there is no question that her cancer has dramatically affected her life, and that the associated impairment has been real and extraordinarily difficult for her and her family.''

Yet the court still denied her coverage under the ADA because it characterized the impact of her cancer as ``short-lived''--meaning that it ``did not have a substantial and lasting effect'' on her.

Mary Ann Pimental died as a result of her breast cancer 4 months after the court issued its decision. I am sure that her husband and two children disagree with the court's characterization of her cancer as ``short-lived,'' and not sufficiently permanent.

This House should also disagree--and does--as is shown by the broad bipartisan support for H.R. 3195.

H.R. 3195 ensures that individuals like Mary Ann Pimental are covered by the law when they need it. It directs the courts to interpret the definition of disability broadly, as is appropriate for remedial civil rights legislation. H.R. 3195 requires the courts--and the Federal agencies providing expert guidance--to lower the burden for obtaining coverage under this landmark civil rights law. This new standard is not onerous, and is meant to reduce needless litigation over the threshold question of coverage.

It is our sincere hope that, with less battling over who is or is not disabled, we will finally be able to focus on the important questions-- is an individual qualified? And might a reasonable accommodation afford that person the same opportunities that his or her neighbors enjoy.

I urge my colleagues to join me in voting for passage of H.R. 3195, as reported unanimously by the House Judiciary Committee.

Madam Speaker, I want to commend the distinguished majority leader and gentleman from Wisconsin, Mr. Sensenbrenner, for their leadership on this important legislation.

H.R. 3195 would help to restore the Americans with Disabilities Act to its rightful place among this Nation's great civil rights laws.

This legislation is necessary to correct Supreme Court decisions that have created an absurd catch-22 in which an individual can face discrimination on the basis of an actual, past, or perceived disability and yet not be considered sufficiently disabled to be protected against that discrimination by the ADA. That was never Congress's intent, and H.R. 3195 cures this problem.

H.R. 3195 lowers the burden of proving that one is disabled enough to qualify for coverage. It does this by directing courts to read the definition broadly, as is appropriate for remedial civil rights legislation. It also redefines the term ``substantially limits,'' which was restrictively interpreted by the courts to set a demanding standard for qualifying as disabled. An individual now must show that his or her impairment ``materially restricts'' performance of major life activities. While the impact of the impairment must still be important, it need not severely or significantly restrict one's ability to engage in those activities central to most people's daily lives, including working.

Under this new standard, for example, it should be considered a material restriction if an individual is disqualified from his or her job of choice because of an impairment. An individual should not need to prove that he or she is unable to perform a broad class or range of jobs. We fully expect that the courts, and the federal agencies providing expert guidance, will revisit prior rulings and guidance and adjust the burden of proving the requisite ``material'' limitation to qualify for coverage.

This legislation is long overdue. Countless Americans with disabilities have already been deprived of the opportunity to prove that they have been victims of discrimination, that they are qualified for a job, or that a reasonable accommodation would afford them an opportunity to participate fully at work and in community life.

Some of my colleagues from across the aisle have raised concerns that this bill would cover ``minor'' or ``trivial'' conditions. They worry about covering ``stomach aches, the common cold, mild seasonal allergies, or even a hangnail.''

I have yet to see a case where the ADA covered an individual with a hangnail. But I have seen scores of cases where the ADA was construed not to cover individuals with cancer, epilepsy, diabetes, severe intellectual impairment, HIV, muscular dystrophy, and multiple sclerosis.

These people have too often been excluded because their impairment, however serious or debilitating, was mis-characterized by the courts as temporary, or its impact considered too short-lived and not permanent enough--although it was serious enough to cost them the job.

That's what happened to Mary Ann Pimental, a nurse who was diagnosed with breast cancer after being promoted at her job. Mrs. Pimental had a mastectomy and underwent chemotherapy and radiation therapy. She suffered radiation burns and premature menopause. She had difficulty concentrating, and experienced extreme fatigue and shortness of breath. And when she felt well enough to return to work, she discovered that her job was gone and the only position available for her was part-time, with reduced benefits.

When Ms. Pimental challenged her employer's failure to rehire her into a better position, the court told her that her breast cancer was not a disability and that she was not covered by the ADA. The court recognized the ``terrible effect the cancer had upon'' her and even said that ``there is no question that her cancer has dramatically affected her life, and that the associated impairment has been real and extraordinarily difficult for her and her family.''

Yet the court still denied her coverage under the ADA because it characterized the impact of her cancer as ``short-lived''--meaning that it ``did not have a substantial and lasting effect'' on her.

Mary Ann Pimental died as a result of her breast cancer 4 months after the court issued its decision. I am sure that her husband and two children disagree with the court's characterization of her cancer as ``short-lived,'' and not sufficiently permanent.

This House should also disagree--and does--as is shown by the broad bipartisan support for H.R. 3195.

H.R. 3195 ensures that individuals like Mary Ann Pimental are covered by the law when they need it. It directs the courts to interpret the definition of disability broadly, as is appropriate for remedial civil rights to legislation. H.R. 3195 requires the courts--and the federal agencies providing expert guidance--to lower the burden for obtaining coverage under this landmark civil rights law. This new standard is not onerous, and is meant to reduce needless litigation over the threshold question of coverage.

It is our sincere hope that, with less battling over who is or is not disabled, we will finally be able to focus on the important questions-- is an individual qualified? And might a reasonable accommodation afford that person the same opportunities that his or her neighbors enjoy.

I urge my colleagues to join me in voting for passage of H.R. 3195, as reported unanimously by the House Judiciary Committee.

I thank the distinguished chairman of the Judiciary Committee for yielding, and I thank him for his efforts.

I want to thank his staff, as well, who have been extraordinary. Heather, in particular, has had her virtues regaled by Dr. Abouchar of my staff, and I thank her.

I want to thank Jim Sensenbrenner. I want to thank Cheryl, as well, who has been an extraordinary help on the Americans with Disabilities Act and with this Restoration Act. She has been a giant in her leadership. And I

want to thank Jim Sensenbrenner, with whom I've worked now for many years on this issue, and he has been, of course, a giant, as chairman of the Judiciary Committee in years past and one of the senior Members of this House, extraordinarily helpful and a partner in this effort.

I also want to thank Buck McKeon, the ranking member. At the time we testified, he said, you know, we want to see this pass but we want to work together and make sure we can all be for it. And I assured him that we would do that, and I was pleased today that he said, in fact, we had done that. And I think the result that we will see in the vote will show that clearly. And I thank him for his work and effort and good faith in working towards a bill that we could all support.

I want to thank George Miller, the chairman of the Education and Labor Committee, whose committee had primary jurisdiction over this bill, for his efforts in assuring that this bill moves forward.

Madam Speaker, I would like to submit for the Record a list of people, particularly in the disabilities community and also in the business community, who spent countless hours, days, weeks and, yes, even months trying to come to an agreement on a bill that both the business community and the disability community would feel comfortable with. We have accomplished that, but it was the work of these people as well who did that, and I would submit this at this time in the Record to thank them for their efforts and their success which they are so responsible for today.

People to Recognize

Chai Feldblum, Georgetown University; Former U.S. Rep. Tony

Coelho; Former U.S. Rep. Steve Bartlett; Sandy Finucane,

Epilepsy Foundation; Andy Imparato, American Association of

People with Disabilities; Randy Johnson, Mike Eastman, U.S.

Chamber of Commerce; John Lancaster, National Council on

Independent Living; Mike Peterson, HR Policy Association;

Curt Decker, National Disability Rights Network;

Jeri Gillespie, Ryan Modlin, National Association of

Manufacturers; Nancy Zirkin, Lisa Borenstein, Leadership

Conference on Civil Rights; Mike Aitken, Mike Layman, Society

for Human Resource Management; Abby Bownas, American Diabetes

Association; Jennifer Mathis, Bazelon Center for Mental

Health Law; Kevin Barry, Georgetown University; Jim Flug,

Georgetown University; Claudia Center, Employment Law Center;

Shereen Arent, American Diabetes Association; Brian East,

Advocacy Inc.

Madam Speaker, 18 years ago next month, the first President Bush signed into law one of the most consequential pieces of civil rights legislation in recent memory, in over a quarter of a century in fact. In the ceremony on the south lawn of the White House President Bush said this:

``With today's signing of the landmark Americans with Disabilities Act, every man, woman, and child with a disability can now pass through once-closed doors into a bright new era of equality, independence, and freedom.''

In large measure, President Bush was right. Those doors have, in fact, come open. Tens of millions of Americans with disabilities now enjoy rights the rest of us have long taken for granted: The right to use the same streets, theaters, restrooms, or offices; the right to prove themselves in the workplace, to succeed on their talent and drive alone.

We all understand why there are cuts in the sidewalk at every street corner, kneeling buses on our city streets, elevators on the Metro, ramps at movie theaters, and accessible restrooms and handicapped parking almost everywhere. By now, they have become part of our lives' fabric. And we wouldn't have it, I think, any other way, because each one is the sign of a pledge, the promise of an America that excludes none of its people from our shared life and opportunities.

That was the promise of the ADA. That was the promise of the ADA that President George Bush signed on July 26, 1990. But looking back 18 years, the hard truth is that we were, in some ways, perhaps too optimistic.

The door President Bush spoke of is still not entirely open, and every year, millions of us are caught on the wrong side. In interpreting the law over these 18 years, the courts have consistently chipped away at Congress' very clear intent, and I know what the intent was because I was there as so many of you were.

I know that many of my colleagues were as well, and I know that they share my disappointment in a series of narrow rulings that have had the effect of excluding millions of Americans from the law's protection for no good reason. We said we wanted broad coverage for people with disabilities and people regarded as disabled, but the courts narrowed that coverage with a ``strict and demanding standard,'' a severely restrictive measure that virtually excluded entire classes of people, even though we had specifically mentioned their impairments as objects of the law's protections.

Civil rights acts have historically been urged to be interpreted liberally to accomplish their objective of protecting the rights of individuals. Unfortunately, in this instance, the courts did not follow that premise.

We never expected that people with disabilities who worked to mitigate their conditions would have their efforts held against them. Imagine, somebody with epilepsy who takes medication to preclude seizures would be told that we're not going to hire you because you have epilepsy, but then be told by the court that that was not discrimination because prescription drugs mitigated the ability or the disability that you had. No one on this floor would have thought in their wildest assertions that that would be an interpretation.

The courts did exactly that, however, throwing their cases out on the grounds that they were no longer disabled enough to suffer discrimination. The discrimination, of course, was determining that somebody had epilepsy, and notwithstanding their ability to perform the job in question, that they would not be hired. That is the essence of discrimination.

That is what we sought to preclude, and I want to again congratulate the business community and the disabilities community for coming together on legislation that will right that misinterpretation because none of what has been held was our intent.

We are here today because a truly wide coalition--members of the disability community ready to claim their equal share, Members of both parties who were tired of seeing constituents shut out, and business groups eager to unlock new pools of talent--an alliance as broad as the one that joined forces to pass the original ADA, has come together to help the courts get this right. I know some of them are watching, and I want to thank them, through my colleagues and through the Speaker, for their efforts.

With the ADA Amendments Act, we make it clear today that a cramped reading of disability rights will be replaced with a definition that is broad and fair--fair to the disability community and fair to the business community--that those who manage to mitigate their disabilities are still subject to discrimination and still entitled to redress, and that those regarded as having disability are equally at risk and deserve to be equally protected.

I am proud, Madam Speaker, to have worked for so long with my colleague Jim Sensenbrenner, as I said earlier. He has been a leader in advancing this legislation, and we've joined together to submit for the Record a legal analysis of the bill that we've worked so hard to bring to fruition.

And I want to thank my good friend, former Congressman Tony Coelho for originally enlisting me in this effort. Very frankly, Tony is one of my very close friends, and when he left the Congress, the ADA had not yet been accomplished. But it was his leadership that got it to the point where, in fact, we could proceed, and he gave me the responsibility of ensuring its passage. Working with George Miller and John Conyers and Jim Oberstar and so many others, we were able to accomplish that objective. But Tony Coelho was our leader on this effort, and very frankly, Madam Speaker, our former whip remains our leader today.

Finally, it is my honor to dedicate this bill to the late Justin Dart, the pioneering disability advocate and inspiration behind the ADA, as well as to his wife, Yoshiko Dart.

Madam Speaker, few kinds of discrimination, in all of our history, have been more widespread than the exclusion of those with disabilities. But it was America, America that passed a pioneering law to help end that exclusion. We were the first in the world to do so.

We were the world's model on this central challenge to human rights. Eighteen years later, we cannot afford to fall behind.

Let us pass this bill and bring us one step closer to the days when the fruits of life in America are at last available to all.

I will yield to my friend.

I thank the chairman on behalf of Mr. Sensenbrenner and myself, and for all those who have been involved in this effort.

Joint Statement of Representatives Hoyer and Sensenbrenner on the

Origins of the ADA Restoration Act of 2008, H.R. 3195

On September 29, 2006, we introduced H.R. 6258, entitled

the Americans with Disabilities Act Restoration Act of 2006.

This bill was a response to decisions of the Supreme Court

and lower courts narrowing the group of people whom Congress

had intended to protect under the Americans with Disabilities

Act (ADA). The Supreme Court had interpreted the ADA to

impose a ``demanding'' standard for coverage. It had also

held that the ameliorative effects of ``mitigating measures''

that people use to control the effects of their disabilities

must be considered in determining whether a person has an

impairment that substantially limits a major life activity

and is protected by the ADA. This holding was contrary to

Congress's stated intent in several committee reports.

We introduced H.R. 6258, which was designed to reverse

these holdings, at the end of the 2006 legislative session.

We intended this bill to serve as a marker of our intent to

introduce future legislation to address this issue. On July

26, 2007, we introduced similar legislation, H.R. 3195, the

ADA Restoration Act of 2007, which ultimately garnered over

240 cosponsors. A nearly identical bill, S. 1881, was

introduced in the Senate on the same day by Senators Harkin

and Specter.

H.R. 3195 as introduced would have amended the ADA to

provide protection for any individual who had a physical or

mental impairment or a record of such an impairment, or who

was treated as having such an impairment. The purpose of this

legislation was to restore the intent of Congress to cover a

broad group of individuals with disabilities under the ADA

and to eliminate the problem of courts focusing too heavily

on whether individuals were covered by the law rather than on

whether discrimination occurred. The bill as introduced,

however, was seen by many as extending the protections of the

ADA beyond those that Congress originally intended to

provide.

In order to craft a more balanced bill with broad support,

we urged that representatives of the disability and business

communities enter into negotiations to try to reach an

acceptable compromise. We maintained contact with these

communities over the course of their negotiations and

supported them in their efforts to understand the needs and

concerns of each community. After several months of intensive

discussions, negotiators for the two communities reached

consensus on a set of protections for people with

disabilities that garnered broad support from both

communities. These protections would significantly expand the

group of individuals protected by the ADA beyond what the

courts have held, while at the same time ensuring that the

expansion does not extend beyond the original intent of the

Madam Speaker, I rise today in strong support of final passage of S. 3406, the ADA Amendments Act of 2008.

Since 1990, the Americans with Disabilities Act has provided protection from discrimination for millions of productive, hard-working Americans so that they may fully participate in our Nation's schools, communities and workplaces.

Among other rights, the law guaranteed that workers with disabilities would be judged on their merits and not on an employer's prejudice.

But since the ADA's enactment, several Supreme Court rulings have dramatically reduced the number of individuals with disabilities who are protected from discrimination under the law.

Workers like Carey McClure, an electrician with muscular dystrophy who testified before our committee in January, have been determined by an employer be ``too disabled'' to do a job, yet courts have said that these individuals are not disabled enough. This is the terrible ``catch-22'' that Congress will change with passage of this bill.

S. 3406, like H.R. 3195 passed in June, remedies this situation in several ways by reversing flawed court decisions to restore the original congressional intent of the ADA. Workers with disabilities who have been discriminated against will no longer be denied their civil rights as a result of these erroneous court decisions.

We expect that individuals will find it much easier to meet the determination of disability under the amended ADA.

In order to achieve the remedial purpose of the ADA as a civil rights law, S. 3406 re-establishes the scope of protection to be generous and inclusive. The bill returns the proper emphasis to whether discrimination occurred rather than on whether an individual's impairment qualifies as a disability.

S. 3406 ensures that individuals who reduce the impact of their impairments through means such as hearing aids, medications, or learned behavioral modifications will be considered in their unmitigated state.

For people with epilepsy, or diabetes, or other conditions who have successfully managed a disability, this means the end of the ``catch- 22'' that Carey McClure and so many others have encountered when seeking justice.

For our returning war veterans with disabilities, S. 3406 will ensure their transition back to civilian life will not include another battle here at home--a battle against discrimination on the basis of disability.

And students with physical or mental impairments will have access to the accommodations and modifications they need to successfully pursue an education.

Much of the language contained in S. 3406 is identical to the House- passed H.R. 3195. This includes provisions concerning mitigating measures, episodic conditions, major life activities, treatment of claims under the ``regarded as'' prong, regulatory authority for the definition of disability, and the conforming amendments to Section 504 of the Rehabilitation Act.

In the House Committee Reports on H.R. 3195, we clarify that an individual who is ``regarded as having such an impairment'' under the third prong of the definition is not subject to the functional test (i.e., required to establish that the perceived or actual impairment substantially limits a major life activity) set forth in the first prong. Thus, an individual with an actual or perceived impairment who is disqualified from a job, program, or service and alleges that the adverse action was based upon his or her impairment is covered by the ADA as a member of the protected class, and therefore entitled to bring a claim.

In clarifying the scope of protection under the third prong of the definition, we also established that reasonable accommodations or modifications do not need to be provided for those individuals who qualify for coverage only because they have been ``regarded as'' having a disability. We are confident, as is the Senate, that individuals who need accommodations or modifications will receive them because those individuals will now qualify for coverage under the first or second prongs (under the less demanding interpretation of ``substantial limitation'') when accommodations or modifications are still required. Our clarification regarding the provision of modifications here does not shield qualification standards, tests, or other selection criteria from challenge by an individual who is disqualified based on such standard, test, or criteria. As is currently required under the ADA, any standard, test, or other selection criteria that results in disqualification of an individual because of an impairment can be challenged by that individual and must be shown to be job-related and consistent with business necessity or necessary for the program or service in question.

Other small differences in the findings and purposes in S. 3406, as well as the rule of construction related to the broad coverage of the act, correspond to similar language in H.R. 3195 and support the objectives as described in the House Committee Education and Labor Report.

As such, our committee report continues to reflect the intent of the legislation and should be regarded as a valid interpretation, with one exception--the definition of ``materially restricts.''

This difference between the two bills resides in the attempt to correct the current interpretation of ``substantially limits.''

The EEOC regulations define the term ``substantially limits'' as ``unable to perform'' or ``significantly restricted.'' In the Toyota case (Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002)), the Supreme Court interpreted ``substantially limits'' to mean ``prevents or severely restricts.''

Both the House and the Senate clearly expect the courts and the agencies to apply a less demanding standard when interpreting ``substantially limits,'' even though the two chambers took divergent, but not inconsistent, approaches.

S. 3406 rejects both of these definitions as too demanding and too narrow, and directs the courts and the agencies to interpret the term ``substantially limits'' consistently with the findings and purposes of the ADA Amendments Act.

H.R. 3195 defines ``substantially limits'' to mean ``materially restricts.'' While the committee believed inclusion of this language would send a strong signal that ``while the limitation imposed by an impairment must be important, it need not rise to the level of severely restricting or significantly restricting the ability to perform a major life activity'' (House Committee on Education and Labor Report 110-730 part 1, at 9), our colleagues in the Senate disagreed.

In his statement, Senator Kennedy notes that the term ``materially restricts,'' and the House committee report's references to a

spectrum or range of severity ``set an inappropriately high standard for the determination of whether an individual is substantially limited in a major life activity and pose the risk of confusing the threshold determination of who is covered by the act.'' (154 Cong. Rec. S8355 (daily ed September 11, 2008)). This was certainly not our intention.

We also agree with the Senate managers that ``such terms encourage the courts to engage in an inappropriate level of scrutiny as to the severity of an impairment when determining whether an individual has a disability.'' (Senate Statement of Managers to Accompany S. 3406, Endnote 14.) We intend that the ADA Amendments will have the opposite effect, by reducing the depth of analysis related to the severity of the limitation of the impairment and returning the focus to the question of discrimination.

S. 3406 also includes a restatement of current law related to fundamental alterations in order to assure institutions of higher education that the ADA Amendments Act does not change the principle that entities need not make modifications to policies, practices or procedures that would fundamentally alter the nature of programs or services, as is true under current law.

For example, a university would not be expected to eliminate academic requirements essential to the instruction being pursued by a student, although the school may be required to make modifications in order to enable students with disabilities to meet those academic requirements. Current regulations provide that ``Modifications may include changes in the length of time permitted for the completion of degree requirements, substitution of specific courses required for the completion of degree requirements, and adaptation of the manner in which specific courses are conducted.'' (Senate Statement of Managers to Accompany S. 3406, Endnote 14)

Educational, testing, certification and licensing entities covered by the ADA also maintain discretion to establish appropriate and reasonable documentation requirements related to the determination of disability, as is true under current law. In June 2008, the Department of Justice offered that ``a testing entity should accept without further inquiry documentation provided by a qualified professional who has made an individualized assessment of the applicant. Appropriate documentation may include a letter from a qualified professional or evidence of a prior diagnosis, accommodation, or classification, such as eligibility for a special education program.'' (Examinations and Courses, 73 Federal Register 34539 (June 17, 2008))

Once an individual has established that he or she experiences (or has a record of) a physical or mental impairment that substantially limits a major life activity, such individual is entitled to reasonable and appropriate modifications in policies, practices or procedures so long as the modifications in question do not fundamentally alter the nature of the program or service.

We expect that the less demanding standard applied to the definition of disability will allow students and licensure candidates with documented disabilities to more readily access appropriate accommodations on examinations when needed.

Last, we must remember that the ADA definition of disability applies also to our public elementary and secondary schools. We believe that most schools currently operate in a manner consistent with the original congressional intent of Section 504 of the Rehabilitation Act and the ADA and should be minimally affected by the change in definition. We do not anticipate a need for extensive changes to the current regulations and published guidance provided by the Office of Civil Rights at the Department of Education.

This legislation has broad support: Democrats and Republicans, employers, civil rights groups, and advocates for individuals with disabilities. I'm pleased we were able to work together to get to this point.

In particular, I would like to thank the members of the Employer and Disability Alliance, including the Leadership Conference on Civil Rights, the Epilepsy Foundation, the American Association of People with Disabilities, the Bazelon Center for Mental Health Law, the U.S. Chamber of Commerce, HR Policy Association, the National Association of Manufacturers, and the Society for Human Resource Management for their hard work and long hours of negotiation with each other and with our staff.

Of course, much credit is due to Majority Leader Hoyer and Congressman Sensenbrenner for their leadership and tenacity in the House; and Senator Harkin, Senator Kennedy and Senator Hatch for their skill in moving this legislation through the Senate with unanimous support.

It is time to restore the original intent of the ADA and ensure that the tens of millions of Americans with disabilities who want to work, attend school, and fully participate in our communities will have the chance to do so.

I look forward to passage of this legislation.